Jubraeel v R

Court of Criminal Appeal (NSW)|2015-05-11|Before: Macfarlan JA, Johnson J, Hulme AJ, Rothman J, MacFarlan JA

The applicant's case

The applicant did not give evidence or call any other person to give evidence.

The Summing-Up

In his Summing-Up the trial judge repeatedly instructed the jury that in order to return a guilty verdict it had to be satisfied that the Crown had proved its case beyond reasonable doubt (for example pp 7, 12, 15 17, 18, 20, 21, 31, 43-44, 49, 50 and 53). His Honour specifically directed the jury that it had to be satisfied beyond reasonable doubt that the applicant was at the Canley Heights address on 23 July 2011 when the shooting occurred, was one of the three persons wearing balaclavas (p 12) and "was a participant in the commission of the crime as part of a joint criminal enterprise with the other persons" (p 31). His Honour referred to this as the "fundamental issue" in the trial (ibid) and directed the jury that if it did not accept Ms Bas' evidence that the applicant told her that he was present at the time of the shooting, it must return a verdict of not guilty of murder and manslaughter (pp 43 and 44). The jury was given a hard copy of his Honour's Summing-Up.
His Honour also referred to Mr Merza's evidence that the applicant was in Miss G's unit with him at the time that the murder was said to have occurred and directed the jury that when determining whether to believe Mr Merza it was entitled to take into account the Crown's lack of examination and cross-examination of him on this topic (p 8).
The applicant's trial counsel did not request the trial judge to give any further directions to the jury.

Ground 1: the absence of specific alibi directions

On appeal, the applicant's counsel acknowledged that because the applicant's trial counsel did not request that the trial judge give any further directions, the applicant required the leave of this Court under r 4 of the Criminal Appeal Rules 1952 (NSW) to advance this ground of appeal. In light of a trial counsel's duty to object to evidence and seek redirections following the Summing-Up, leave under r 4 is not lightly given. Obtaining leave requires an applicant to satisfy the court that the failure to give the jury a particular direction (or other error) has caused a miscarriage of justice (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72] per McHugh J), or at least that there is a possibility that that is the case (R v Roberts [2001] NSWCCA 163 NSWLR 138 at [55] per Howie J).
In ARS v R [2011] NSWCCA 266, Bathurst CJ provided the following summary of important considerations in relation to r 4: "148 The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."
Before determining whether leave should be granted, I turn to consider the merits of the proposed ground of appeal by reference to the seven matters listed in the applicant's Notice of Appeal as particulars of the ground.

"(i) His Honour failed to direct the jury that … if they accepted the alibi they were obliged to acquit"

The applicant submitted in effect that the following extract from the Judicial Commission of New South Wales' Criminal Trial Courts Bench Book suggested direction (at paragraph [6-000]) should have been given: "The Crown must establish beyond reasonable doubt that the accused was at [the scene of the crime] at the relevant time. The Crown cannot do so if there is any reasonable possibility that the accused was at [somewhere else, according to the alibi evidence] at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at [somewhere else, according to the alibi evidence] at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt the accused was at [the scene of the crime] at that time. If the Crown fails to remove or eliminate that reasonable possibility, you must acquit the accused".
The applicant's submissions quoted an earlier version of the suggested direction. I have quoted that which is current.
The Bench Book states that the suggested alibi directions are intended to be consistent with R v Amyouni (unrep, 18/2/88, NSWCCA), R v Steeden (unrep, 19/8/94, NSWCCA) and R v Kanaan [2005] NSWCCA 385 at [135]. I refer to these and other decisions below.
In Amyouni, the trial judge's directions in relation to the accused's alibi defence included the following: "If you accept [the] alibi evidence it is likely that you would have a reasonable doubt on the Crown case but if you do not accept the alibi evidence you must still look to see if you are satisfied on the Crown case that it has made out those elements of which I told you to your satisfaction beyond a reasonable doubt. In short, the failure of an alibi does not necessarily prove the Crown case" (pp 1-2).
This Court found that the first part of the direction was in error because if the jury was satisfied that the alibi was reliable, it was bound to acquit the accused. Using the word "likely" therefore understated the position.
The Court also found that the latter part of the direction was in error because it presented the jury with only two alternative situations (acceptance or rejection of the alibi evidence) when a third existed, namely, one in which the jury doubted the force of the alibi evidence but did not either accept or reject it. In this situation, the jury should consider the whole of the evidence, "giving to the claimed alibi such significance as the jury might think it deserved in the overall factual context" (p 2), to determine whether the Crown had proved its case beyond reasonable doubt.
Neither of these errors occurred in the present case. First, the trial judge directed the jury that it must acquit if it was not satisfied beyond reasonable doubt that the applicant was present at the scene of the murder (see [21] above). From this, the jury would have understood that if it accepted the alibi evidence it must acquit the accused. Secondly, the trial judge did not present the jury with two alternatives. Rather, his Honour repeatedly emphasised that the applicant's presence must be proved beyond reasonable doubt. The trial judge did not, and was not asked to, distinguish between a situation in which the jury rejected the alibi evidence and one in which it simply had a doubt about it.
In Amyouni, whilst agreeing with Street CJ (with whom Slattery CJ at CL also agreed), Roden J added: "It seems to me that in every case where that situation is met, there are three possibilities, all three of which should be explained to the jury. One is that they accept the alibi, in which event they would be obliged to acquit. The second is that they reject the alibi, in which case they would not necessary convict but must assess the evidence as a whole. The third possibility is that although they do not accept the alibi, they also do not reject it in the sense that they regard it as something which could reasonably be true. In that event also, in such a case, they must acquit. In my view, it is the failure of the learned trial judge to refer to that third possibility that leads to the orders which are proposed and with which I agree" (p 3).
In R v Harland (unrep, 22/8/90, NSWCCA), Campbell J (with whom Meagher JA and Newman J agreed) referred, with approval, to Roden J's observation but pointed out that a trial judge was not required to "adhere to a rigid formula", nor to refer to each of the matters to which Roden J referred if the case's particular circumstances made it unnecessary to do so (p 5). The Summing-Up in Harland would have left the jury with the impression that if it rejected the accused's alibi evidence it should convict, thus leaving unstated the jury's obligation to be satisfied beyond reasonable doubt of the accused's guilt upon the evidence as a whole, even if it rejected the alibi evidence (p 4). This error did not occur in the present case.
In Steeden, this Court stated that "[it] is clearly desirable for a judge summing-up in a case in which an alibi defence is raised to approach the matter in the fashion considered by Roden J in Regina v Amyouni" (p 4). However, despite the absence of an Amyouni-type direction by the trial judge in that case, this Court considered that the directions at trial were sufficient in light of the "clear and repeated directions on the onus of proof and the standard of proof" (p 5).
In R v Skaf [2004] NSWCCA 37 (paragraphs [1]-[7] and [187]-[287] only reported in 60 NSWLR 86), this Court concluded: "105 Unlike [in] Amyouni, the judge did not invite the jury to look only at the Crown case to the exclusion of everything else in the event of rejecting the alibi. His Honour made it quite clear that the onus of proof lay on the Crown in all matters".
In these circumstances, the Court found that the directions were adequate notwithstanding the absence of formalised alibi directions.
A similar approach was taken in Kanaan in which this Court found that, despite the absence of any formal alibi direction, the trial judge had made it clear "in the context of directions concerning the onus and standard of proof, that any reasonable possibility that the alibi was true had to be eliminated before the applicant could be convicted" and that the Summing-Up would have ensured that the jury understood that it could not draw "a conclusion of guilt as a direct consequence of rejecting the alibi" (at [136], [137]).
Maxwell P's observation as follows in R v Merrett [2007] VSCA 1 (Chernov JA and Habersberger AJA agreeing) encapsulates the effect of the abovementioned cases, although it should not be taken as discouraging the giving of explicit alibi directions where the trial judge considers it appropriate: "22 … When the Judge says that the Crown must establish beyond reasonable doubt that the accused committed the offence, it is equivalent to saying that the Crown must prove that there is no reasonable possibility that the accused is innocent or - in the case of an alibi defence - no reasonable possibility that the accused was elsewhere at the time the offence was committed. For the Judge to have told the jury that, while neither accepting nor rejecting the alibi evidence, they might conclude nevertheless that there was a reasonable possibility that the alibi evidence was true would merely have been to restate the direction he had given - repeatedly - on the standard of proof …".
In the present case, the trial judge directed the jury that it should acquit the applicant unless it was satisfied beyond reasonable doubt that he was present when the shooting occurred. In these circumstances an explicit statement that the jury should acquit if it accepted the alibi was unnecessary because it would have been obvious to the jury from the direction given that it should do this.

"(ii) His Honour failed to direct the jury that if they rejected the alibi they would not necessarily convict but must assess the evidence as a whole"

His Honour did not at any stage suggest that if the jury rejected the alibi, it should necessarily convict the applicant (compare R v Steeden referred to in [36] above). Rather, his Honour's repeated direction that the Crown must prove its case beyond reasonable doubt (see [21] above) indicated to the jury that this was not the position.

"(iii) His Honour failed to direct the jury that if they did not accept the alibi or reject it in the sense that they regarded it as something which could reasonably be true, they must acquit"

Again, this direction was unnecessary as his Honour made it clear to the jury that if it had a reasonable doubt about the applicant's presence at the scene of the shooting, it was required to return a verdict of not guilty.

"(iv) His Honour [erred in] fail[ing] to direct the jury that the Crown must disprove the alibi"

His Honour's repeated references to the onus of proof made it clear to the jury that, in order for it to convict, it had to be satisfied beyond reasonable doubt that the applicant was present at the scene of the shooting (ibid). This made it clear to the jury that if it considered that there was a reasonable possibility that the alibi evidence was correct it should conclude that the Crown had not discharged its onus of proof.

"(v) His Honour failed to give the jury any or any adequate directions as to the fact that the [applicant's] alibi was supported by a Crown witness"

The trial judge's Summing-Up referred to Mr Merza's alibi evidence that the applicant was with him at Miss G's unit at the time of the shooting (p 6). The jury was aware that Mr Merza was a Crown witness because it knew that the applicant did not call any witnesses. His Honour's limited reference to the evidence was sufficient considering the applicant's counsel's reliance on the evidence in his address (see [21] above) and the absence of a request by that counsel for the trial judge to supplement his Summing-Up.

"(vi) His Honour failed to comment or give the jury any warning on the fact that the evidence of Merza was not challenged by the Crown"

His Honour's Summing-Up referred to the Crown's lack of cross-examination of Mr Merza and told the jury that it was entitled to take that into account in determining Mr Merza's "believability or his accuracy" (p 8). Again, this was adequate in light of the applicant's counsel's reliance in address on the absence of challenge to Mr Merza's evidence and of any request to the trial judge to supplement his Summing-Up.

"(vii) His Honour failed to give the jury any or any adequate warning as to the limited use they could make of the evidence concerning persons and weapons at [Miss] G's flat"

The trial judge gave the jury detailed directions concerning Miss G's oral evidence immediately after it was given. The Crown's written submissions on appeal summarised the directions as follows: "a. The fundamental issue in the trial was whether the Crown could prove beyond reasonable doubt that the Applicant was one of the three males at the scene when the Deceased was fatally shot and, b. The evidence of Miss G is evidence that the Applicant had access to a weapon of a similar kind to the type that [was] used or described [as] being at the scene of the fatal shooting of the Deceased but, that evidence cannot be used to prove directly that the Applicant was the person at the scene and, c. Further, the circumstance that the Applicant had access to such a weapon cannot be used … to reason that he was more likely to have been at the scene (i.e. proscribing impermissible propensity reasoning) and, d. … that the Crown case relied upon the admissions to Ms Bas to prove beyond reasonable doubt that the Applicant was at the scene of the fatal shooting, and the evidence of the Applicant having access to guns was put and is only available for the jury to render her evidence more believable and, e. It is not permissible to use the evidence of Miss G to reason that the Applicant had access to a weapon therefore he committed the murder because that 'just doesn't follow' and that is why those directions were being given just after the evidence had been heard".
His Honour said that he would probably give the directions again in his Summing-Up but he did not do so. In my view, the directions that his Honour gave were adequate and, given that the applicant's counsel did not request that they be repeated in the Summing-Up, it was unnecessary that that occur.

Conclusion on Ground 1

For the reasons that I have given, the applicant's submissions in relation to Ground 1 should be rejected. The fact that none of the points were taken by trial counsel strongly suggests that he did not perceive the directions now under consideration to be necessary to avoid unfairness to the applicant (see [24]- [25] above). I would refuse leave to the applicant to rely upon Ground 1.

Ground 2: "the verdict is unsafe and unsatisfactory"

As noted earlier, this ground of appeal seeks to invoke the Court's powers under s 6(1) of the Criminal Appeal Act. In determining such a ground, this Court must make "an independent assessment of the evidence, both as to its sufficiency and its quality" and determine "whether it 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" (SKA at [14], [11] quoting M v The Queen [1994] HCA 63; 181 CLR 487 at [25], [21]). The "central question" to be answered in making such an independent assessment is whether the court is satisfied that the applicant was guilty of the offences (SKA at [20]).
In the present case, the Crown's case depended on the jury accepting Ms Bas' admission evidence. The Crown accepted on appeal that whilst there was other evidence that was supportive of its case, for example the fingerprint and DNA evidence, that other evidence could not have justified the applicant's conviction in the absence of Ms Bas' evidence. The trial therefore turned on Ms Bas' credibility and reliability. As a result, the jury's advantage of having heard and seen the witnesses is particularly significant and must be given full weight (Griffiths v R [2014] NSWCCA 60 at [4]; see also SKA (at [13]) and M v The Queen at 494). Such weight diminishes or disappears if the jury was not properly instructed but that is not the case here. For the reasons that I have given above, the only complaints made about the trial judge's instructions to the jury are without merit.
The particular matters advanced by the applicant to found his submission that the jury's verdict is "unsafe and unsatisfactory" were as follows:

"(i) Evidence was tendered by the Crown in the form of the [applicant's] statement to police and his Record of Interview which supported his alibi for the offence."

As noted in [4] above, the applicant's police statement of 8 August 2011 was not tendered as evidence of the truth of its contents. However the Crown's tender of his Record of Interview was not so limited and the document was accordingly evidence of the truth of its contents. In it, the applicant is recorded as asserting that he was at Miss G's unit on the night in question but, importantly, that he left the unit for an unidentified period in the evening to obtain food from a service station.

"(ii) This alibi evidence in the statement, confirmed in the Record of Interview, was provided more than two years before the [applicant's] trial. Notwithstanding this early raising of alibi, the prosecuting authorities produced no direct evidence in contradiction of the [applicant's] alibi."

Although not evidence of the truth of its contents, the applicant's police statement did put the Crown on notice of the applicant's alibi defence and that Mr Merza's evidence may be able to support it.
The jury was well aware that the Crown did not call a witness to contradict Mr Merza's alibi evidence and no doubt took that fact into account.

"(iii) The [applicant's] alibi was supported at trial by a Crown witness, Oliver Merza";

"(iv) The alibi evidence of Merza was unchallenged by the Crown"

Mr Merza's evidence was required to be, and no doubt was, considered by the jury in determining whether the Crown had established its case beyond reasonable doubt. As noted above (at [20], [22]) the applicant's trial counsel and the trial judge referred to that evidence being unchallenged.

(vi) The jury was not properly instructed as to the applicant's alibi defence, as to the lack of challenge to the evidence of Mr Merza and as to Miss G's evidence concerning the applicant's access to weapons and ammunition

I have earlier rejected the applicant's contentions that the jury was not properly instructed.

"(v) The evidence of Ms Bas, which was not direct evidence as to the [applicant's] whereabouts at the time of the offence, contained many contradictions and defects"

The applicant's counsel did not elaborate on this submission but it was no doubt intended, at least principally, as a reference to the inconsistent answers that Ms Bas gave in her recorded interview and in her evidence about whether the applicant told her that he had a firearm and a balaclava with him at the time of the shooting (see [6] to [13] above).
However, it is not particularly remarkable that Ms Bas gave different answers at different times about whether the applicant told her that he had a firearm and balaclava with him at the shooting. From Ms Bas' perspective that question could well have been of limited significance, bearing in mind that she did not at any time suggest that she thought the applicant himself fired the fatal shot. If of limited significance it would not be surprising that her recollection about it might have been confused or uncertain. What can be inferred to have been crucial from Ms Bas' point of view is that the applicant told her that he had been a participant in a shooting incident that she had later learned resulted in a person's death. Her recollection of this did not waiver. Such inconsistencies and uncertainties as there are in her answers concerning the details of what the applicant told her do not lead me to have a reasonable doubt as to the truthfulness or reliability of her evidence on this critical issue. It was entirely open to the jury to take the same view, which it undoubtedly did.

Conclusion on Ground 2

Having conducted the requisite independent assessment of the record of the trial and giving full weight to the verdict of guilty returned by the properly instructed jury, I am not left with any reasonable doubt about the applicant's guilt of the offence of which he was convicted. On my reading of the transcript, Ms Bas' evidence was compelling and, notwithstanding Mr Merza's alibi evidence, it justified the jury's conclusion that the Crown proved its case against the applicant beyond reasonable doubt.
The fact that Ms Bas' evidence to the police about her conversation with the applicant contained an accurate reference to the Toyota Corolla escape vehicle having "broken down" when that occurrence was not referred to in any of the television reports of the shooting and could not, on the evidence, have been known to Ms Bas otherwise than as a result of speaking to the applicant, is particularly supportive.
It is also important that in his Record of Interview the applicant stated that he had left Miss G's unit for a period on the evening in question (see [4] above), which contradicted Mr Merza's evidence that he was at the unit throughout the evening (see [15] above). This severely diminished the value to the applicant's case of Mr Merza's alibi evidence.
For these reasons, I do not consider that Ground 2 has any merit. Accordingly, it is rejected.

Orders

In light of my conclusion that neither ground of appeal sought to be relied on has any merit, I propose the following orders: 1. Decline to grant to the applicant leave under r 4 of the Criminal Appeal Rules to rely on Ground 1 in his Notice of Appeal. 2. Grant to the applicant leave to appeal to rely on Ground 2 in his Notice of Appeal. 3. Dismiss the appeal.
JOHNSON J: I agree with the reasons and proposed orders of Macfarlan JA. With respect to Ground 2, having conducted the necessary independent assessment of the trial, I am left with no reasonable doubt of the applicant's guilt of the murder of Colin Wick.
RS HULME AJ: I agree with the orders proposed by Macfarlan JA and with his Honour's reasons.

Amendments 10 June 2015 - [27]: Quotation incorrect. 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: 10 June 2015

Criminal Appeal Rules 1952(NSW)

Solicitors: George Sten & Co (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2012/10783 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: New South Wales Citation: R v Marwan Jubraeel [2014] NSWSC 838 Date of Decision: 23 June 2014 Before: Rothman J File Number(s): 2012/10783

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