Kaddour v R

Facts

1. At the time of his death the deceased was living in a unit in Blaxcell Street, Granville, on the first floor of a building managed by the Department of Housing. He was acquainted with the appellant (sometimes referred to in the evidence as "Biggie"), Daniel Azar (generally referred to as "Daniel"), who pleaded guilty to the manslaughter of the deceased, and Mohamed El-Chami.
2. Shortly before 4:00am on Tuesday, 13 August 2013 police attended the deceased's unit regarding an allegation of malicious damage relating to a broken window to the deceased's unit. The deceased alleged that a man by the name of Ray had smashed his window. The deceased was heavily intoxicated and drug affected when the police spoke to him. They also spoke to Mr El-Chami, who was present at the deceased's unit. Mr El-Chami told police that Ray had pointed a silver firearm towards him.
3. The man Ray (Raed Alasmar) was found in a nearby carpark. He was affected by alcohol and drugs, and had sustained lacerations to his head, forehead and nose. He was taken to hospital. In a police statement, Mr Alasmar said that he had been assaulted by the deceased and three other men whom he did not know.
4. Arrangements were made for Mr El-Chami and the deceased to attend at Granville Police Station later that day when they were sober and not drug affected. However, neither of them did so.
5. The principal account of what happened later on that day and into the early hours of the following morning concerning the deceased was given by Mr El-Chami.
6. At some time on 13 August 2013 - the precise time is unclear - Mr El-Chami was at the deceased's premises with Daniel, where they had all apparently been asleep.
7. Mr El-Chami said that he was awakened by Daniel who, having woken up himself, said to the deceased, "Why did you touch my arse?" Daniel then proceeded to hit the deceased. Shortly afterwards, Mr El-Chami and Daniel left the deceased's premises.
8. At a later time that day Mr El-Chami and Daniel returned to the premises with the appellant. The four of them often socialised at the deceased's premises.
9. When they returned to the premises, Mr El-Chami said that they spent the time chilling, talking and smoking. He said that after they had been smoking it brought back everything. Daniel got a bit upset and then got into a fury about the deceased having pinched him on his backside. That led to Daniel punching the deceased. Mr El-Chami got up to leave and said (T200): Biggie, [the appellant] like launched himself on him. I didn't see him throw a punch. I don't know if he jumped on to protect. I didn't see, as I was leaving the room. Mr El-Chami also said (T200): When Daniel and Basem were, as I was leaving the room, Biggie walked past. So, I didn't actually see Biggie physically do anything. And he jumped on the bed. I didn't see physical contact. I don't know what he was doing. I don't know if he was trying to protect or hit him. I didn't see.
10. Mr El-Chami then went downstairs. He said that he thought the others were coming down and he waited for 20 minutes. When they didn't come he went back up to the unit.
11. While Mr El-Chami was downstairs, the CCTV footage shows that both Daniel and the appellant came out of the unit. It seems that Daniel stayed up on the first level but the appellant walked downstairs to ground level. The CCTV footage shows that Daniel and the appellant walked back towards the deceased's unit. Some nine minutes later, Mr El-Chami went back in. He said that he had difficulty getting into the unit as there were "feet at the end of the door". They were the deceased's feet, because the deceased was lying on the ground. When Mr El-Chami went into the unit he saw Daniel leaning next to the deceased with a red object in his hand that looked like a hacksaw. He kicked the object out of Daniel's hand. He said that the appellant was looking for something in the cupboard.
12. Mr El-Chami then left the unit, and a few minutes later the CCTV shows Daniel coming out of the unit, and subsequently shows the appellant with Mr El-Chami walking in the car park. Mr El-Chami said that shortly after that, the appellant threw a ball through a window in the complex so that the police would attend. The three of them then ran off along Blaxcell Street.
13. Later on the morning of 14 August 2013 a Department of Housing employee, Mr Kimberley Naylor, attended at the apartment block to carry out maintenance duties on the building. The police were also in attendance in response to a call from a resident, Mr Fahed Ibrahim, whose window had been broken by the ball thrown by the appellant.
14. Mr Naylor observed that a window to the deceased's unit had been broken, and that there was a barricade on the inside of the window preventing anyone from reaching through the window to open the door to the unit. Mr Naylor also observed that there appeared to be blood coming from weep holes associated with the unit.
15. When Mr Naylor called out and received no answer from within the unit, he entered it with the police. They found a large pile of clothing and bed linen on the hallway floor, and the deceased's foot was protruding from beneath the pile. Thereafter crime scene officers and a forensic pathologist, Dr Yohan Duflou, attended the scene. A number of items were seized from the unit and were examined for fingerprints and DNA evidence.
16. Dr Duflou performed an autopsy on 15 August 2013. He determined that the direct cause of death was blunt force injuries. He identified the following particular injuries: "1. Blunt force injury to the body with injury to head, neck, trunk and limbs: A. Blunt force head injury due to multiple impacts to the head with: 1. Fractures of base of skull and nasal bones. 2. Acute left subdural haemorrhage with: a. Left cerebral hemisphere swelling; b. Convex medial surface of the left hemisphere without subfalcine herniation; c. Prominent left uncal groove; d. Prominent right cerebellar tonsil; e. Partial effacement left frontal horn; 3. Multifocal subarachnoid haemorrhage. 4. Contusions, left and right gyrus rectus, right lateral orbitofrontal gyrus. 5. Petechial haemorrhages or congestion, right side of corpus callosum. 6. Mild intraventricular haemorrhage B. Impact injuries to the neck with fracturing of cricoids cartilage. C. Multiple blunt force injuries to trunk with multiple rib fractures bilaterally. D. Relatively minor injuries to extremities. 2. Unfired bullet located in oropharynx. 3. Evidence of prior blunt force injury to head."
17. Dr Duflou also gave evidence that the deceased's left eyeball had essentially been broken open. He said that the ruptured eyeball was likely to have been caused by something being pushed into the eyeball region rather than from a blow or kick.
18. Dr Duflou said that the deceased died as a result of a number of injuries, with the major injuries being the brain damage and skull fracture. Other injuries that caused the deceased's death were the laceration of the scalp and the associated blood loss, as well as the multiple rib fractures on both sides of the deceased's body.
19. He said that a fairly high level of force was required to create the fracture at the base of the deceased's skull. He thought that it would be very difficult for a punch to cause that type of force. He said that a kick or a stomp with the head on the ground could readily cause that type of injury as could blows with objects like pieces of wood or bricks.
20. The Crown case was largely a circumstantial one, apart from what was shown on the CCTV footage. Much, but not all, of its case depended on Mr El-Chami's evidence, particularly on admissions he claimed the appellant had made to him which he set out in his first statement to the police on 20 August 2013 (MFI 5). The evidence was said to demonstrate that there was a joint criminal enterprise between the appellant and Mr Azar to inflict grievous bodily harm on the deceased. The Crown submitted that the joint criminal enterprise commenced at the time he saw both the appellant and Mr Azar assault the deceased just before Mr El-Chami left the unit for about 20 minutes.
21. In addition to Mr El-Chami's evidence, the Crown relied on the CCTV footage which was said to demonstrate the periods during which the appellant and Mr Azar were in the unit with the deceased and Mr El-Chami was outside downstairs. The Crown also relied on the appellant's fingerprints in blood being found on a pole at the scene, and on part of the top of a broken table which Mr El-Chami said had been broken over the head of the deceased. The Crown also relied on lies told by the appellant in his record of interview which were said to constitute a consciousness of guilt.
22. The appellant's case, largely from evidence given by the appellant at the trial, can be summarised as follows. The appellant said that it was Mr El-Chami who told him that the deceased had grabbed Daniel "on his balls, testicle area". In response to that, the appellant said that he would go to speak to the deceased and sort out the problem because Daniel seemed "quite a bit distraught".
23. He arrived at the deceased's unit with Daniel and Mr El-Chami at about 1:00am to 1:30am. They all had a conversation and then the appellant asked the deceased "Did you touch Daniel?" The deceased did not reply. The appellant asked him again and he did not reply. The appellant asked him a third time, and the deceased said "'Get the fuck out of my house before I call the police' or something along them lines". He said that Daniel then got up and began hitting the deceased about three times in the face region.
24. The deceased then said he would explain why he had touched Daniel, and the appellant pulled Daniel off the deceased. After the explanation "things got patched up". The appellant got up and went outside the unit, and he thought that Daniel followed him shortly thereafter. When the appellant went back in he asked Mr El-Chami "what happened" and Mr El-Chami said that everything was patched up.
25. The appellant found his phone on the couch. Daniel then walked back into the unit to get some of his belongings. The appellant then left the unit to speak with Mr El-Chami who had walked out. Daniel followed him.
26. The appellant and Daniel then went back into the unit and had a smoke for a couple of minutes. The deceased and Daniel then started arguing, and Daniel started hitting the deceased. He used a closed fist in the face area. A pole then came into Daniel's hands, and Daniel began hitting the deceased with it. The appellant thought that the deceased was hit to the floor with a punch. He thought that Daniel hit the deceased with the pole in the head area. The appellant said that he wrestled with Daniel and took the pole from him and told him to relax. Then Daniel picked up a table and broke it on the deceased's head. Daniel was very angry. At that stage the deceased was lying on the ground and the appellant could see blood in his facial area. The appellant asked the deceased if he was all right and the deceased told them to leave him alone and to get out of his house.
27. The appellant said that the assault on the deceased by Daniel took no more than two minutes. He never saw an unspent cartridge being put in the deceased's mouth, and he never saw Daniel with a hacksaw.
28. The appellant remembered Mr El-Chami coming into the unit and saying something like "What the fuck happened?" The appellant then left the unit followed by Mr El-Chami.
29. As the appellant walked away from the unit, Mr El-Chami said to the appellant "Yous fucked up, yous fucked up", and the appellant said he had nothing to do with it. One of them said that they had to ring triple 0, but they did not want to use their phones because they did not want to be implicated in the mess. They came to an agreement to throw a lawn bowl through a window so that the police would come, and assistance would be provided. The appellant then threw a ball through a window and they ran away. The appellant said he first became aware that the deceased had died the next day.
30. The appellant agreed that he lied in his police interview. He said he did it because he was under the influence of drugs and he was worried that he might get involved in the mess when he had nothing to do with it. He agreed, when shown the CCTV clips, that he appeared carrying a pole at 2:03:00. He could not recall why he was carrying it. He thought it might have come from the deceased's unit but he was not sure.

Grounds of appeal

1. It is convenient to deal with grounds 2, 3 and 4 first, and then to consider ground 1, particularly by reason of the way the appeal was argued.

Grounds 2 and 3

1. Grounds 2 and 3 are in the following terms: "Ground 2: Her Honour erred in failing to direct the jury that evidence of admissions, purportedly made by the appellant, and recorded in an earlier, written statement of the witness Mr El-Chami, could not, in the light of s 60(3) Evidence Act 1995 be used as proof of the truth of those statements and that their use was limited to the credit of the witness. Ground 3: Her Honour erred in granting leave to cross-examine Mr El-Chami, in accordance with s 38 Evidence Act 1995, in relation to so-called admissions, recorded in the earlier statement of Mr El-Chami, in circumstances where the evidence could go only to the credit of the witness."
2. As is apparent from these grounds, they relate to the evidence of Mr El-Chami. Mr El-Chami was in the company of the appellant and Mr Azar in or near the vicinity of the deceased's premises in Granville, at the time when the assault which led to the death of the deceased took place.
3. Mr El-Chami was charged on 29 August 2013 with the murder of the deceased. On that day he made a statement to the police which became MFI 5 in the proceedings. The appellant and Mr Azar were also charged with the murder, although the Crown ultimately accepted a plea of guilty to manslaughter in the case of Mr Azar.
4. The murder charge against Mr El-Chami was subsequently withdrawn and he pleaded guilty to concealing a serious criminal offence. He was sentenced for that offence on 19 April 2016, receiving a discount on sentencing for agreeing to provide further assistance to the Crown in the prosecution of the appellant and Mr Azar.
5. On 31 March 2016, shortly prior to him being sentenced, Mr El-Chami made a further statement which became MFI 4 in the proceedings.
6. Although it must be emphasised that neither statement was in evidence, portions of each statement were directly put to Mr El-Chami and it is convenient to set them out.
7. In the first statement, MFI 5, Mr El-Chami stated the following: "8. During the second interview I explained how Daniel AZAR and I were at Basem's house on Tuesday 13th August and at some point Basem grabbed Daniel on the arse. This lead to Daniel throwing a punch at Basem, which then lead [sic] to Daniel and I leaving Basem's unit though the window. We met up with Biggie, also known as Ahmad K as we had previously been in contact with him over the phone. When we met up with him we told him how Basem had grabbed Daniel on the arse. A short time later the three of us went back to Basem's unit where the three of us hung out with Basem. At one point, Biggie just got up and started laying punches into Basem. Daniel then joined in with him and then they were both bashing him. I decided to leave, I wasn't involved in the bashing of Basem. I walked out of the unit and waited down the street for about twenty minutes thinking they would just come down. 9. When they hadn't, after about twenty minutes, I walked back up to the unit. When I got inside I could see Basem was lying on the ground with his feet at the door end of the unit. There were piles of clothes on top of him and Daniel was kneeling beside him just near his head. In Daniels [sic] hand was that had a red handle [sic] that looked something like a hacksaw. He was holding it right near Basem's throat. I went up and kicked it out of Daniel's hand. 10. As I was inside the unit, I saw Basem's face look badly injured, he may have been breathing. Biggie was in there to [sic] and he was still throwing clothes on top of Basem. The three of us then left the unit. Before we left I saw that there was damage to the doorway of the unit, to that I mean the timber of the door frame. As we left, I tried to get the others to call an Ambulance but Biggie said 'Fuck him'. Biggie then threw a bowling bowl or lawn bowl through someone else's window I think as a means of raising the alarm. We all then ran away from the scene. 11. After we had left, Biggie and Daniel told me what had happened. They both said Biggie smashed a table of [on] Basem's head. Biggie also said something about stabbing him with a screwdriver. At some point Biggie rang his mum, and he said she was going to buy him a ticket to Lebanon so he wouldn't get caught. Biggie then left Daniel and I. I haven't seen Biggie since then but I have been with Daniel as I explained during the interview."
8. His second statement, MFI 4, contained the following material: "17. I don't have a recollection myself of the actual time but I understand that police attended at about 3:45am in the early hours of Tuesday morning. After the police and ambulance had gone Daniel and I stayed at Basem's. … 18. At some stage during the day we woke up and Basem said that he had pinched Daniel on the arse or words to that effect. I did not see it happen but I remember Basem saying that he had done that. Daniel got upset and accused Basem of being a 'poofter'. I can't recall the precise conversation but I vaguely recall Daniel saying something about not being gay and Basem telling him that he loved him or words to that effect. 19. Daniel eventually got really upset with Basem and he hit him. It was a punch, but only one. Basem told us both to leave but somehow he had locked the front door. 20. Daniel and I climbed out the window which had been broken by Ray during the night before and I think one of the panes of glass might have fallen out when we went through it. Daniel and I left and sometime later we met up with Biggie. I didn't have a phone with me so I presumed that Daniel phoned him. As far as I recall, my phone was with Isaac who I think was hanging out at my place. I can't recall precisely but by this stage it was sometime on Tuesday afternoon or evening. 21. After meeting up with Biggie, Daniel wanted to go back to Basem's unit to get his smokes or something else which he had left behind. Daniel had told Biggie about the incident with Basem pinching his bum. I can't recall how long we were gone but Biggie either had or got some weed and we went back to Basem's for a smoke. 22. After we told Basem that we had 'seshing' (which means weed) he let us back in. I remember we went back in through the door. Basem's door had a number of ways it could be locked including a bolt and a chain. I don't remember what time we went back but I think it was still daylight. 23. We were all there for some time having a smoke. I remember that Daniel, Biggie and Basem were smoking ice as well as cones. I was mostly smoking cones although I might have had a few puffs of ice. I also had a number of Xanax tablets which I describe as having some 'zanies'. They were prescribed for me for anxiety and tension following me having been shot in the hand. I took them as well as smoking weed. 24. At some time later in the night while we were all sitting around (Basem, me, Biggie and Daniel) the subject of being 'gay' and Basem having pinched Daniel's arse came up again. I can't remember the exact conversation but the conversation got heated. Basem has a small unit which is essentially a bed-sit with his bed at one end of the room with a lounge close by on the right against the wall as you look from the door. There are two lounges. I was sitting closest to the door and Daniel and Biggie were on the long lounge. 25. At some stage it got physical although I can't remember precisely how that occurred. As far as I remember Daniel threw the first punch and then Biggie went over to Basem. Basem had stood up as Daniel approached him and Daniel hit him. I remember after Daniel hit him, Basem fell on the bed. After Daniel hit Basem, Biggie launched himself onto Basem. As far as I recall Basem was on the bed at that time. That was when I decided to leave. As I told the police in my record of interview, I have never been involved in a physical fight and I have always tried to avoid violence. I didn't want to be involved in Basem being bashed up. … 45. It was at this stage that I pushed the door open with my foot. I could feel that something was blocking the door. The door opens to the right and opens to a small hallway. When the door opened enough for me to go through I realised that it was Basem's feet and legs that were in the way of the door. He was lying down on his back and his feet were towards me. I saw Daniel kneeling over Basem's head with a red object that looked like a hack saw. I took a step or two and leaned forward and kicked the hack saw out of Daniel's hand. During this time I also saw Biggie on my left hand side grabbing clothes from the cupboard and throwing them onto Basem who was lying on the floor. … 51. I continued to wait in the car park. At 2:20:30, Biggie came down the stairs and joined me in the car park. At 2:20:47am, Biggie went to the left in the direction of a fridge which had a set of lawn bowls in it. He did not tell me what he was doing but a couple of minutes later Biggie can be seen throwing a lawn bowling ball at Basem's neighbours [sic] window. Biggie told me after that he had thrown the ball so that the neighbour would call the police."
9. It was in that context that Mr El-Chami gave his evidence.
10. At the outset of his evidence in chief Mr El-Chami was shown MFI 4 and acknowledged that what he told the police as recorded in that statement was the truth.
11. He then gave the following evidence concerning the events of 13 August 2013: "Q. I take you to one incident in particular. This was on 13 August 2013, the day before Bassem died. Okay? A. Yeah. Q. Was Ray there then? A. In the early mornings? Q. Yes. A. Yeah. I don't recall what time it was, but he was there. Q. What happened? A. Oh, just a conflict between Bassem and Ray. An argument. I was inside. Q. You didn't see anything? A. No. I'd seen they obviously got into a scuffle at the front of the house after Ray smashed a window, a front window, and yeah. Q. Can I take you to that day then? Can I take you now to later on in the day, 13 August? Did you and Daniel go back to Bassem's place? A. Yes. … Q. What did you do? What did you do after this business with Ray had finished? A. I don't recall. I don't recall. … Q. Did you leave Bassem's place or did you stay on after Ray went? A. No. We stayed there because police attended the unit. Q. So, this was the early hours of the morning? A. Yeah. … Q. When you say we left, where did you go to? A. Me and Daniel just left. I can't recall where we went to, but I do know we did leave the premises because Bassem told us to leave afterwards. Q. Did you go back? A. Yes we did. … Q. This was the 13th. So, later on the day? A. Yeah. Continuing. Q. So, the sun was still up. You went back to Bassem's? A. Yes. … Q. What did you do when you went back to Bassem's again? A. We went back because Daniel forgot something upstairs and, obviously, he wouldn't let us up. So, we were downstairs. Q. What happened next? A. I can't remember. Q. Did you go up to Bassem's again? A. Yeah. Of course, we did. Afterwards. Q. He let you in? A. Yeah. Q. This is you and Daniel? A. Me, Daniel and Biggie. HER HONOUR Q. So, there were three of you at this stage? A. Yeah. But I don't recall what time we met up with Biggie. CROWN PROSECUTOR: Okay. HER HONOUR Q. Biggie is that man there? A. Yeah. CROWN PROSECUTOR: The accused. Q. Now before Biggie and you and Daniel went back to Bassem's, did Daniel and Bassem have some sort of conflict? A. Yeah. It was over a pinch on the bum. It was nothing. It was just a little miscommunication, obviously. Q. Who pinched who? A. Bassem pinched Daniel on the bottom. Q. Did you see what happen or was it an allegation? A. I was asleep. He woke up, and in a fury. And obviously, I woke up. Q. Daniel woke up? A. Yeah. Daniel woke, accusing: 'Why did you touch my arse?' This. That. Q. What did Daniel do with Bassem? A. Just hit him once. Q. Where? A. I don't recall where. Q. What happened next? A. Then we left. Q. Where did you go? A. I can't recall. Q. You said you went back? A. Yeah. Q. You and Daniel went back with Biggie? A. Yeah. But that was before Biggie came, when the conflict with Bassem. Yeah, before Biggie was - Q. That's right. A. Yeah, that's correct. Q. Is that right? A. Yeah. Yeah. Q. It was just you and Daniel? A. At the time when the conflict happened. Q. The pinch on the backside? A. Yeah. Q. Daniel hit him? A. Yep. Q. Then you go? A. We left. Yes. Q. You can't remember where you went? A. No. We then we came back. Q. With Biggie? A. We'd gone back and Biggie was - I don't remember how or what, but I remember we were there. Q. What happened when you went back, when you and Daniel went back with Biggie? Did you get back inside? A. Yeah, he let us inside. He was asleep, and came down, let us inside. Q. What happened when you were inside? A. Just chilling. Q. Just chilling? A. Yeah. Talking. Chilling. Q. Talking? A. Talking, yeah. Q. Was anything mentioned about this pinch on the bum? A. Yeah. It was not me. But I think, well, like I remember, Daniel got a bit upset, after we've been smoking, bring back everything. And then, you know, he just fury [sic] about it. Q. He got angry? A. Angry. Of course. Yeah. Q. What happened? A. Like, straight after. Q. Yeah. A. Yeah, um, Daniel hit/punched, um, Bassem. And I got up. And then, um, Biggie, like launched himself on him. I didn't see him throw a punch. I don't know if he jumped on to protect. I didn't see, as I was leaving the room. Q. I slow you down. A. Yeah. Q. Launched on who? A. When Daniel and Bassem were, as I was leaving the room, Biggie walked past. So, I didn't actually see Biggie physically do anything. And he jumped on the bed. I didn't see physical contact. I don't know what he was doing. I don't know if he was trying to protect or hit him. I didn't see. … Q. When you went out, where did you go? A. Went downstairs and went inside the building, stayed there for a bit. Approximately, 20 minutes. Q. Doing what? A. Just chilling. Just, I thought they were going to come after the conflict, like we usually do. No-one. I don't know what's going on. I thought they were coming down, and that's why I was waiting. After 20 minutes, they didn't come. Approximately, 20 minutes. I went back up."
12. Thereafter Mr El-Chami was asked questions by reference to clips taken from the CCTV camera located outside the premises at which the murder took place. The first series of questions related to what was described as clip number 9, starting at 2.15am: "Q. When you first went back into number 10? A. Yes. Q. What did you see when you went into number 10? A. I seen Daniel leaning next to Bassem. Q. What was he doing? A. He had an object in his hand, a red object. Q. What was it? A. It looked to me like a hacksaw. Q. What did you do? A. I kicked it out of his hand and then left. Q. Did you have any trouble opening the door to get in? A. At first, yeah, kind of, yes. Q. What was the problem? A. The feet at the end of the door. HER HONOUR Q. Sorry? A. The feet was [sic] at the end of the door. Q. The feet? A. Yes, the deceased's feet. Q. He was lying down on the ground? A. Yes, ma'am. Q. Was he deceased then as far as you could tell or - A. Yes, ma'am. CROWN PROSECUTOR Q. I will come to that in a moment. A. Yep. Q. What did he look like to you at the time? What did you see Bassem - describe him? A. Just laying there. I didn't actually pay attention. I was not actually looking. Q. Was Biggie in the room? A. Yes. Q. What was he doing? A. He was looking for something in the cupboards or just - there was clothes on the floor. Q. Clothes on the floor? A. Yeah, there was a pile of clothes next to the body, yeah. Q. What was he doing with the pile of clothes? A. Who? Q. Biggie? A. There was the cupboard, when I walked in the door the cupboard was there. What he was looking for I couldn't tell. Q. This was what Biggie was doing? A. Yes."
13. He was subsequently asked the following questions: "Q. At 22:22:04 what did Biggie do? A. He threw a ball at the window to say that the police will come. HER HONOUR Q. Biggie did that? A. Yes. CROWN PROSECUTOR Q. At 2:22:04. Okay. How do you know that it was so the police would come? A. Because he told me. Q. What else did Biggie say to you happened inside? A. I don't recall. I don't remember. It was a long time ago. … Q. You told us before that you and Daniel left after Daniel had punched him once after the pinch on the bottom business, right? A. Yes. Q. Then you went back later and Biggie was with you? A. Yeah. … Q. Did you at any stage see the accused Biggie punch Bassem? A. No, I wasn't - no, I didn't. I seen him launch himself on to him so I don't know what he was doing. I was already leaving at that time."
14. The Crown then made what was the first application under s 38 of the Evidence Act 1995 (NSW) (the Evidence Act) for leave to cross-examine Mr El-Chami. The application was made on the basis of what was said in paragraph 8 of MFI 5. In that context, the following interchange took place: "CROWN PROSECUTOR: I will approach your Honour's associate. I have MFI 5 of the relevant statement (handed). It's that part of section 38 which concerns a previous inconsistent statement. Look at paragraph 8 of MFI 5, your Honour, line 6: 'A short time later the three of us went back to Bassem's unit where the three of us hung out with Bassem. At one point Biggie just got up and started laying punches into Bassem. Daniel then joined in with him and then they were both bashing him. I decided to leave.' HER HONOUR: And what did he say? He said that - CROWN PROSECUTOR: I asked him, 'At any stage did you see Biggie punching Bassem?' And he said 'no', he did not. HER HONOUR: He did say that, did he? QUESTION AND ANSWER MARKED * READ HER HONOUR: It is inconsistent with this, Mr Scragg, isn't it? SCRAGG: Yes, it is. HER HONOUR: And it's crucial matter. SCRAGG: It is, yes, your Honour, yes, yes. If your Honour grants leave I don't wish to say anything against it, your Honour. HER HONOUR: Well, I think given the circumstances - SCRAGG: If your Honour pleases. HER HONOUR: Pursuant to section 38, it's clear that it falls within the section. It is a prior inconsistent statement and it's on a crucial matter."
15. Thereafter the Crown asked the following questions of Mr El-Chami: "Q. (By leave). Mr El-Chami, I hand you a statement you made to the police marked MFI 5 (shown to witness). Just look at the second page, please, paragraph 8 down the bottom. I will just read a section of it to you: 'We met up with Biggie, also known as Ahmad K as we had previously been in contact with him over the phone. When we met up with him we told him how Bassem had grabbed Daniel on the arse. A short time later the three of us went back to Bassem's unit where the three of us hung out with Bassem. At one point, Biggie just got up and started laying punches into Bassem. Daniel then joined in with him and then they were both bashing him. I decided to leave. I wasn't involved in the bashing of Bassem.' Did you follow that? A. Yep. Q. That's the truth, isn't it? A. That's the first statement. HER HONOUR Q. I'm sorry. A. That was the first statement, your Honour. CROWN PROSECUTOR Q. Yes. That was dated 20 August 2013, six days after this event? A. Yep. Q. You told the truth then, didn't you? A. Yep. … Q. Later the murder charge was dropped and you were charged with concealing a serious offence, is that true? A. Yes. … Q. Is that correct? On 19 April 2016 the honourable Justice Schmidt sentenced you to a bond to be of good behaviour for a period of three months, and one of the conditions that you undertook to give assistance to the police and the prosecuting authorities by giving evidence, is that the case? A. Yep."
16. Mr El-Chami was then cross-examined. He was first asked questions about when the police arrived, following the breaking of the window and the altercation with Ray. He was asked the following questions and gave the following answers: "Q. Okay. Do you remember how long you had been at Bassem's unit before the police arrived? A. No. Q. Had you been smoking dope with the deceased that day? A. I was smoking dope on a daily basis when I was - back in the days, yes. Q. So when the police arrived at 4am, were you affected by dope? A. I don't recall. Q. Is it more than likely you were affected by dope if you were smoking it on a daily basis? A. More than likely but I don't recall it. Q. Were you stoned? A. I don't recall. Q. Do you say the fact that you have problems remembering these events is because you're remembering events when you were affected by marijuana? A. No, because on the first time when I got interviewed I remembered clearly over three years ago what I said was true. Over the years I've forgotten. Q. Do you remember speaking to the police about Ray breaking the window? A. No, I don't remember. Q. You don't remember that at all? A. No. I don't remember. Q. Just so you understand - A. If it's in my statement then it's true, I don't remember."
17. Following further questioning regarding the incident with Ray, he was cross-examined on the events before the day of the murder: "Q. I'm just asking you about the Tuesday. The evidence is that Bassem died in the early hours of the morning of the 14th, do you understand that? A. Yep. Q. So on the Tuesday - HER HONOUR: That's the day before? SCRAGG: Yes, the day before. Q. You and Daniel were in Bassem's unit during the course of that day? A. Yeah. Q. And at some point in time you became aware of a complaint by Daniel that Bassem had pinched him on the bum? A. Yes. Q. You became aware of that because that is something that Daniel told you, that Bassem had pinched him on the bum? A. Yes. Q. Did you see that happen? A. No. … Q. Did Daniel wake you up to tell you this? A. No, I heard it. Q. You heard him say what? A. 'What are you fucking pinching my arse', or something along those lines. Q. You say that you saw Daniel Azar punch Bassem once? A. Yep. … Q. After Daniel had punched Bassem, did Bassem fall over? A. No. … Q. Did you see any injuries on Bassem after that punch? A. No. … Q. Can I just hand you back MFI 4 (shown). Can I take you through to paragraph 25; can you just read that to yourself please? A. Yep. Q. This is the statement that was tendered to the sentencing judge, you told us? A. Yes. Q. A few months ago? A. Yes. Q. Paragraph 25, do you say that that's true? A. Yes. Q. You said in paragraph 25: 'At some stage it got physical although I can't remember precisely how that occurred. As far as I remember Daniel threw the first punch, then Biggie went over to Bassem.' That's true, is it? A. Yes. Q. 'Bassem had stood up as Daniel approached and Daniel hit him.' A. Yes. A. Is that true? A. Yes, it is true. Q. 'I remember after Daniel hit him Bassem fell on the bed.' Is that true? A. Yep. Q. When Daniel hit Bassem and then Bassem fell on the bed, did Daniel hit Bassem with a closed fist? A. I didn't see his fist. … Q. And you remember that Bassem fell on the bed? A. Yes. Q. You go on to say what you have said today - A. Yep. Q. 'After Daniel hit Bassem, Biggie launched himself on to Bassem.' A. Yep. Q. That's what you said earlier today? A. Yes. Q. In that statement that you made, which was provided to the sentencing judge - A. Yes. Q. - you did not say in that statement that the accused hit Bassem, did you? HER HONOUR: That Biggie? SCRAGG: Thank you, your Honour. Q. You didn't say anywhere there that Biggie hit Bassem, did you? A. No. Q. This was a statement that was being provided to the Crown as an outline of your evidence and it was also to be provided to the sentencing judge as to the evidence that you would be giving? A. Yes. Q. And you never said in that statement that Biggie, the accused, hit Bassem, did you? A. No. … Q. You didn't see him punch him? A. No. In the 2013 statement, your Honour, the first one I got mixed up with the names and I remembered that in the first. That was 2013, your Honour. Q. But that's the one that you just told the Crown - A. That's the one where I said Biggie hit him, the 2013 one, your Honour. I was mistaken with the names at the time. It was a couple of days after I got arrested, I was shocked and scared. SCRAGG: Q. What you meant to say was you got mistaken by the names? A. That's correct. Q. It was Daniel Azar that hit him? A. That's right. Q. Not the accused? A. That's right."
18. That evidence was exculpatory of the appellant. Mr El-Chami was subsequently cross-examined on what occurred on 20 August 2013: "Q. Now can I just take you to, first of all, 19 and 20 August of 2013? You remember that, first of all, you and Daniel were picked up by the police on 16 August, questioned and released? A. Yeah. Q. Do you remember that? A. Yeah. Q. Do you remember that on 19 August, the police telephoned your mother and suggested that you come in for an interview, and your mother took you down to the police station? A. Yeah. … Q. I withdraw that question. But do you remember that towards that interview you were told by the police that you were going to be charged with murder? A. Yeah. Q. You were extremely upset? A. Yeah. Q. Because you had nothing to do with it? A. Of course. Q. As you've told us, I think, earlier today, and then when you made your statement, that is MFI 5 that the Crown asked you about, this was shortly after you'd been told by the police that you were going to be charged with murder? A. Yeah. Q. You were extremely upset because you have been charged with an offence for which you were innocent? A. That's correct. Q. You were not guilty of it? A. That's correct. Q. And so, you were distraught and upset? A. Yeah. Been shot earlier. Q. You had been shot? A. Yeah. Keep going. Q. You couldn't believe what was happening to you? A. That's exactly right. Q. At that time, when you were down there, were you effected [sic] by drugs at that time? A. What do you mean, I was effected [sic] by drugs? Q. You were smoking dope and something like that? A. I was on medication for post-traumatic stress disorder. Is smoking dope a relevant question?"
19. Finally in cross-examination he was asked the following questions and gave the following answers: "Q. … I've asked you about whether or not when Biggie came out he said he was going back to look for his phone. I asked you about that. Then you were away for a period of time. And you remember the CCTV footage where Biggie is on the upstairs balcony by himself and you are downstairs, then he comes downstairs and you, more or less, were together? A. Yeah. Q. For a period of time? A. Yep. … Q. Can you remember any conversation at that time about leaving or anything like that? A. No. I don't remember the conversations. Q. Anyhow, you were away for a period of time, as we've seen on the CCTV footage? A. Yes, you can see it. … Q. And you see Daniel kneeling down with a hacksaw? A. What appeared to be a hacksaw, yeah. Q. What appeared - A. Yeah, that's correct. Q. - to be a hacksaw? A. Yes. Q. You say that you thought you saw the accused with some clothes or something like that? A. Yeah. I saw, roughly, clothes on the ground. Throwing clothes. It's throwing, like, things down. I don't know if he's throwing clothes, I can't say exactly what he was doing, but from the cupboard. There is clothes on the floor. Q. Are you sure about that? A. Yeah. Q. When you walked in, did you say something like, 'What the fuck happened?' or words to that effect? A. Yeah, something like that. Q. Then you and Moie - I mean, Biggie walked outside and them sometime later we see Daniel Azar walking outside? A. Yep. Q. The accused at some point in time after that threw a ball through one of the windows? A. Yes. Q. He explained that; to call the police? A. Yeah. Call. Raise an alarm. Yes."
20. There followed a further application under s 38 of the Evidence Act, concerning paragraph 11 of MFI 5. The application was made at the conclusion of day five of the trial and at the conclusion of Mr El-Chami's cross-examination: "CROWN PROSECUTOR: If your Honour pleases, a s 38 application again with respect to MFI 5, a copy of which I hand up now. I just approach your Honour's associate. (A copy document was handed up to her Honour.) I say two things that needs to be said about this s 38 application. Firstly, it was a s 38 re-examination. The second point is one that I realised when I was listening to the cross-examination that I had neglected to put into examination-in-chief. So my application is going to be twofold. I am going to apply to re-open examination-in-chief for the limited purpose of leading admissions in para 11 of MFI 5 before your Honour. The basis had been set for that before lunch when I asked the witness did Biggie say anything to you after you'd left and you were running away, and the witness said no. HER HONOUR: It's a serious omission, Mr Crown. CROWN PROSECUTOR: It was, and it is entirely my fault. By way of a small reason, though not an excuse, had it not been for the luncheon break and the s 38 matter that came up afterwards, I would have addressed both of them. I must confess, I had completely forgotten the second point. HER HONOUR: Because it is a matter of fundamental importance. SCRAGG: Your Honour, I oppose it. I've structured my cross-examination of this witness in a particular way. HER HONOUR: But you would have overnight. But he gave his evidence only this afternoon. SCRAGG: Yes. I understand that, your Honour. HER HONOUR: So. SCRAGG: Well, I oppose it your Honour. HER HONOUR: I can well understand that, Mr Scragg. But it is a highly relevant matter. If it were to be dealt with, it would have to be dealt with first thing. SCRAGG: Yes. HER HONOUR: Interrupt the cross-examination. SCRAGG: Your Honour, can I just have the opportunity to look at this overnight? It's a further bite of the cherry, if you like. HER HONOUR: In one sense, it is. You did have this. SCRAGG: Oh, yes. I've always had this. HER HONOUR: So you would have known about this as a potential piece of evidence. SCRAGG: No. Of course, I did. Yes. HER HONOUR: It's not as if it comes as a surprise to you. I am inclined, as is fairly obvious, particularly given the time of day, to allow the Crown to intrude first thing tomorrow and apologise. SCRAGG: I don't want the Crown to apologise, your Honour. HER HONOUR: Okay. Anyway, to say it was his fault. SCRAGG: Well, yes. HER HONOUR: That it was an omission on his part and to raise it with him. If it were of collateral significance, it would be a different matter. SCRAGG: Your Honour, I will think about it overnight. Your Honour has indicated a preliminary view. Or if I can have the opportunity, if I come up with anything, to put that to your Honour first thing in the morning."
21. On the following day further discussion ensued: "SCRAGG: Your Honour, I do have further submissions to put in relation to section 38. HER HONOUR: Yes certainly. SCRAGG: Your Honour, subsection (4) provides that: 'Questioning under this section is to take place before the other parties cross-examine the witness unless the Court otherwise directs.' HER HONOUR: That was why I was suggesting that the Crown do it now. SCRAGG: Yes, your Honour, but the position is that yesterday the Crown made its application to cross-examine on a particular passage in MFI 5. HER HONOUR: Yes. SCRAGG: I have then cross-examined, and now the Crown wants to cross-examine again under section 38. HER HONOUR: Yes, I understand that. But you will be able to - SCRAGG: Yes I understand - HER HONOUR: And that's what this is all about isn't it? Giving you the opportunity after the event. SCRAGG: Your Honour, the way in which MFI 5, if your Honour has a look at MFI 5, the Crown sought leave and was granted leave to cross-examine the witness on paragraph 8. HER HONOUR: Yes. SCRAGG: And your Honour, the witness gave an explanation in relation to paragraph 8, and essentially, his evidence was that he had not actually seen the accused punch or strike the deceased at that point. And at that time, the Crown did not seek leave to cross-examine - HER HONOUR: No, it was a serious omission on the Crown's part. SCRAGG: Your Honour, I then structured my cross-examination in a particular way, because I would have - if I have to cross-examine him further, it will become apparent as to how the other matters that I would have raised with the witness, because in relation to paragraph 8, your Honour, he gave an explanation for it as to why he said those things. In his evidence-in-chief - HER HONOUR: Where did he say that? SCRAGG: I'm sorry, your Honour, I don't have the - he basically said as I recall it, that he was very stressed, worried, he made a mistake, something to do with post-traumatic stress disorder and he made a mistake. He was referring to Azar and not the accused. Your Honour in terms of what the Crown could have sought to cross-examine on at that stage, it was somewhat limited. It only referred to really one event in paragraph 8, and there was no application of course, to cross-examine in relation to other matters - HER HONOUR: No, it was a serious omission on the part of the Crown. SCRAGG: Yes, but it's a serious omission which has consequences for the accused. If I have to cross-examine the witness on other matters, the jury may be wondering why it was that I didn't cross-examine him first of all on those matters. HER HONOUR: On which matters? SCRAGG: Well matters that, if I'm required to, I'll have to cross-examine him, if I have to cross-examine him further. HER HONOUR: I'm not sure I understand, Mr Scragg. SCRAGG: Well your Honour, I made a forensic decision by reason of the way in which the evidence was adduced by the Crown in cross-examination not to go to other matters. HER HONOUR: What sort of other matters? SCRAGG: Well, other matters concerning why it was that he implicated the accused. HER HONOUR: In his statement? SCRAGG: Yes. HER HONOUR: Well, that's still relevant to - SCRAGG: But he gave an explanation in relation to paragraph 8 which, for forensic reasons, your Honour, I didn't pursue with him in any great detail. HER HONOUR: Well you still have the opportunity to do that, Mr Scragg. SCRAGG: Well the problem is your Honour, that the unfairness to the accused is that the jury may be considering why it was I'm cross-examining him again, and why it was I didn't put that to him the first time. HER HONOUR: You didn't put which to him? SCRAGG: Other matters. CROWN PROSECUTOR: Well I haven't raised them yet. That's why my friend couldn't cross-examine on them because I forgot to raise them and I'm going to raise them now. HER HONOUR: In paragraph 11, you mean? CROWN PROSECUTOR: Yes. HER HONOUR: The jury will have to be told that it was an omission by the Crown. CROWN PROSECUTOR: I'll tell them, your Honour. SCRAGG: Yes. HER HONOUR: And as it turns out, a serious omission. SCRAGG: Yes, I understand. But that doesn't provide me with any comfort. That doesn't, in my submission, ameliorate what is the potential prejudice to the accused. HER HONOUR: Well I mean, obviously it's a damning piece of evidence. SCRAGG: Of course, it is. HER HONOUR: Which is why it's highly relevant. SCRAGG: Yes, but that doesn't mean that the Crown can now, in my submission seek to cross-examine it in under section 38, having already been granted leave by your Honour and cross-examined in accordance with that leave. They are my further submissions. HER HONOUR: What do you say, Mr Crown? CROWN PROSECUTOR: The Crown says there are two separate and distinct pieces of material from Mr El Chami. The first section 38 application yesterday had regard to things that he told police he actually saw. This application regards things that he said he heard from the accused. In that regard, there is effectively no unfair prejudice done to the accused for this reason, one doesn't follow hand in glove with the other. They happened on two separate occasions in time, and they involve two separate sets of observations. One, as I said, what he saw. The other, what he said he heard the accused say. For this reason, they are to be clearly separated. That being the case, since they are severable, the defence in my submission, has been done no unfair prejudice because once the jury are told that it was completely my fault, and that I overlooked to raise the matter, and I remind your Honour as I said yesterday, I set this course in train before lunch because I asked the witness did he talk to Biggie after the event and when they were going away and he replied 'no'. As I said, I always intended to raise it after lunch, and it was completely my omission that I didn't. Having done so now, and having explained that in part to the jury that it was my fault, it follows that my learned friend is done no prejudice by being able to cross-examine now on this new material effectively, that happened at a separate and distinct part of the proceedings. One further observation, and in no way intending to impugn the sincerity of my learned friend who is very experienced counsel, but often in my experience, in situations where counsel would say that they have been done an unfairness, judges in this Court would often simply require them to particularise, and I note that your Honour has done that in part already. In my respectful submission, it's not sufficient for your Honour to make a decision in this matter simply for the defence to say in a blanket fashion that they have been done an unfairness or that the prejudice is incurable. HER HONOUR: I don't think you should, assuming I allow it, include at some point 'Biggie rang his mum who said she was going to'. CROWN PROSECUTOR: No. HER HONOUR: I would be disposed to - CROWN PROSECUTOR: No, I didn't intend to lead that because naturally that, in any event, entails an assumption on the part of the witness as to whom it was that he was speaking, and the worth of it is questionable in any event. HER HONOUR: Yes. Mr Scragg, I think I should allow it at this stage. You will still be cross-examining afterwards. SCRAGG: Your Honour, can I put this further submission in relation to paragraph 11, the second sentence, they both said, 'Biggie smashed a table on Bassem's head'. Your Honour, 'they' that is, the accused and Azar, 'they both said', in my submission, that's unfair for the further reason that Azar is not in this trial. There's no opportunity of course, to challenge or to see whether or not Azar agrees with that assertion that Azar said that 'Biggie smashed a table on Bassem's head'. It's in the area of second-hand hearsay. HER HONOUR: Well Biggie was one of them who said that. SCRAGG: Yes. HER HONOUR: And that's the relevant part. Also of course, something that somebody else says in his presence, if he doesn't refute it, can be admissible. SCRAGG: Yes, I understand that, but this doesn't reveal, your Honour, in my submission, whether or not when it was alleged Azar said that about the accused, that was in the presence of the accused. HER HONOUR: Well they both said it. So it must have been. SCRAGG: Well not necessarily. HER HONOUR: 'Biggie and Daniel told me what had happened.' SCRAGG: Yes this is 'after we left'. HER HONOUR: 'Biggie then left Daniel and I.' Yes, so I haven't seen - SCRAGG: There is nothing here, in my submission. HER HONOUR: What you should say is I should delete 'and Daniel'. SCRAGG: 'After we had left Biggie' yes, your Honour. HER HONOUR: 'Biggie told me what had happened.' SCRAGG: Yes. HER HONOUR: He said 'he smashed a table at Bassem's head'. He also said something about stabbing him with a screwdriver. CROWN PROSECUTOR: I'm content to do that. HER HONOUR: If you raise that as an issue, then it can be amended to only include what he said. SCRAGG: Yes, your Honour. It's difficult, your Honour. Who knows what will happen if - would your Honour pardon me for a moment? (Mr Scragg conferred with the accused in court.) Yes, your Honour I would ask that the cross-examination be limited in that way your Honour."
22. Following the conclusion of the argument, the Crown further cross-examined Mr El-Chami to the following effect: "Q. Mr El-Chami, I apologise for that long introduction. I'm just going to ask you a couple of questions about discrete matters, that is, relatively narrow matters that you said before. Will you look please at MFI 5, this is the statement that you made to police back on 20 August 2013 (shown to witness). Would you look at paragraph 10 please, which is on page 3. Yesterday in answer to questions by Mr Scragg, you said that there was no mention of anyone calling an ambulance because you said none of you had a telephone. Do you remember saying that? A. I didn't have a telephone, yes. Q. And you said that 'Biggie threw the bowling ball through the window' you thought, to raise the alarm and get some help -? A. Yes. Q. - is that right? In your statement, you said at paragraph 10, look at the four lines down from the top of paragraph 10, I'll read that: 'As we left, I tried to get the others to call an ambulance but Biggie said 'fuck him'.' That's true, isn't it? A. Yes. Q. I'd like to ask you some questions about paragraph 11. HER HONOUR: And I think you should take him to the following sentence. CROWN PROSECUTOR: Yes, thank you, your Honour. Q. Just to balance things, as her Honour points out, you go on to say: 'Biggie then threw a bowling ball or lawn bowl through someone else's window, I think, as a means of raising the alarm. We all then ran away from the scene.' That's true, too? A. Yes. Q. Paragraph 11, I asked you yesterday before lunch whether you spoke to Biggie as you were running away after the three of left and ran down Blaxcell Street, and you said, 'No', he didn't say anything to you? A. Yes, that's right. Couldn't remember. Q. If you look at paragraph 11 and I'm just going to read part of it? A. Yep. Q. Because we're only concerned in this Court with what Biggie said to you? A. Okay. Q: 'After we had left, Biggie told me what had happened. He said 'Biggie smashed a table on Bassem's head'. Biggie also said something about stabbing him with a screwdriver.' True? A. True."
23. Counsel for the appellant then further cross-examined Mr El-Chami to the following effect: "Q. If I can take you forward to 19 August - do you remember that on 19 August, you were told by your mother that the police wanted to speak to you about the death of Bassem? A. Yes. … Q. And do you remember that you were interviewed over a number of hours? A. I don't remember the actual interview, but I remember that I was there for several hours, yes. … Q. You were on drugs at the time of that interview, weren't you? A. Yes. … Q. And would you agree with me that during that interview you were very hyper? A. I don't recall the interview. Q. Do you recall that the interview concluded at about 1.07am on 20 August? A. I do not recall. Q In the early hours of the morning? A. I don't recall the times. Q. Do you recall that you were asked over 800 questions? A. That's a lot of questions. I don't recall. Q. Would you agree with me that during that interview process, starting on 19th and going to the 20th, you said nothing in that interview process about the accused saying to you he had thrown a table on Bassem? A. On 13th, is that what you're saying? Q. I'll put it again. I'm just asking you what you said in your interview of 19 August? A. I do not remember what I said on August 19th. Q. You've got no idea? A. Whatever is in my statement is true, so I do not remember anything from that unless you want to give me the statement, I can go through it and it might bring some shed back to my memory (sic). But from the top of my head I cannot recall. Q. Do you remember in that interview on 19 August you, towards the end of the interview, you were told by Detective Senior Constable McGregor that you were to be charged with murder? A. Yes. … Q. So it would be fair to say, wouldn't it, that your mental state at that time, on drugs, post-traumatic stress disorder, being charged with an offence that you had not committed, you of course, became very extremely anxious and upset? A. Yes. Q. Do you remember the interview was stopped and then another interview commenced on 20 August, not long after. There was a break and then another interview commenced? A. I said to you I do not recall anything on the 16th. It's 3 years ago, a long time ago. … Q. Then another interview started with the same police officers, on 20 August, didn't it? A. I don't recall, I don't remember. … Q. Do you remember that that interview concluded on 20 August at about 2.28am? A. I told you, I do not remember. … Q. And was that statement taken from you after you had concluded the interviews on 19 and 20 August? A. I don't recall. Q. Just going back to 16 August, you and Daniel Azar were in the Ryde cells there together. Remember that? A. I don't remember. Q. I suggest to you, you can remember and you're being evasive? A. No, I don't remember, it's so long ago. Q. I suggest to you that you're not doing the best to tell us what you can remember? A. Everything I put in the statement is true. There is no need for me to lie, and I have not committed any crime, and I'm innocent of. … Q. Did you think on 19 August, that is, you and Azar were there, the accused was not there, did you think to yourself that the accused had dobbed you and Azar in and that's why you were at the Ryde Police Station? A. No. Q. You didn't think that? A. No. Q. Did you make allegations against the accused in your statement that you've been taken to today, of 20 August, as payback to the accused for your belief that he'd dobbed you in? A. I do not recall."
24. That cross-examination concerned the events of 19 and 20 August 2013. Taken in context it would seem that the answer given to two questions "[w]hatever is in my statement is true" referred to the statement which is MFI 5.
25. He was then asked about his statement of 31 March 2016: "Q. You don't recall? All right. I want to go forward then to MFI 4, which was your statement dated 31 March this year? A. Yes. Q. I think you've told us just a little while ago that this was a statement that was taken from you by your solicitors? A. Yes. Q. And for the purpose of tendering that statement in your sentencing proceedings? A. What does that mean? … Q. Nowhere in this statement that your solicitor was taking from you do you say that the accused told you that he had thrown a table on the deceased, do you, nowhere? A. I don't know. Q. Well, take it from me it is not there? A. Okay. Q. If I am wrong the Crown will correct me, okay. Nowhere in this statement do you say that the accused said to you that he had stabbed the deceased with a screwdriver, nowhere? A. That's correct. … Q. I take it that when your solicitor took this statement from you, you were doing the best you could to tell the truth? A. No, I was telling the truth of what I could remember, everything - Q. Sorry, I didn't mean to cut you off? A. Well, you did. Everything in here was the truth of what I remember, there is no need for me to lie about anything. Q. You can't even remember? A. 2013. I can't remember what I ate yesterday, as I said. Q. Is that because of your post traumatic stress disorder or drugs? A. I stopped drugs after I got out of Court so 2013 to 2016 I fixed myself, tried to stay off drugs and everything, so my memory, clearly I was getting memory back, yes. Q. Taking you back to 2013 when you made that statement on 20 August, you don't remember what you said in that statement, do you? A. Like I said to you, I was charged with a crime that I did not commit. Being shot, I don't remember. Q. I think you are saying yes, you don't remember? A. I am saying I do not remember. Q. You don't remember and you don't remember today whether or not what you said in your statement on 20 August 2013 was the truth, do you? A. I don't remember. … Q. I just wanted to go back to where the three of you were running away from Bassem's unit, around about that time, okay. I just want to ask you some questions about that, okay. Did you say to the accused and Azar words like this, 'You guys fucked up'? A. I don't recall. Q. Did the accused say 'I had nothing to do with it'? A. I don't recall. Q. You don't recall? A. Yes. Q. Did you say, 'What are you going to do now?'? A. I don't recall."

The legislation

1. In considering the issues raised by these grounds, it is necessary to have regard to the following provisions of the Evidence Act: "59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Notes: Specific exceptions to the hearsay rule are as follows: • evidence relevant for a non-hearsay purpose (section 60), • first-hand hearsay: - civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64) - criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66) • contemporaneous statements about a person's health etc (section 66A) • business records (section 69) • tags and labels (section 70) • electronic communications (section 71) • Aboriginal and Torres Strait Islander traditional laws and customs (section 72) • marriage, family history or family relationships (section 73) • public or general rights (section 74) • use of evidence in interlocutory proceedings (section 75) • admissions (section 81) • representations about employment or authority (section 87 (2)) • exceptions to the rule excluding evidence of judgments and convictions (section 92 (3)) • character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. Examples: 1 D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial. 2 P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. 3 W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W." "60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)). Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. (3) However, this section does not apply in a criminal proceeding to evidence of an admission. Note: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay: see section 82." "81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. Note: Specific exclusionary rules relating to admissions are as follows: • evidence of admissions that is not first-hand (section 82) • use of admissions against third parties (section 83) • admissions influenced by violence and certain other conduct (section 84) • unreliable admissions of accused persons (section 85) • records of oral questioning of accused persons (section 86) Example: D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W: (a) that D made the admission to W as proof of the truth of that admission, and (b) that W formed the opinion that D was sane when he made the admission." "82 Exclusion of evidence of admissions that is not first-hand Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: (a) it is given by a person who saw, heard or otherwise perceived the admission being made, or (b) it is a document in which the admission is made. Note: Section 60 does not apply in a criminal proceeding to evidence of an admission." "192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence."

(a) The appellant

1. Because Ground 3 is in one sense anterior to Ground 2 and was dealt with in that fashion by senior counsel for the appellant, it is convenient to deal with the submissions on Ground 3 at the outset.
2. The appellant in his written submissions referred to that portion of the evidence to which we have referred at [55]. It was submitted that the questioning of Mr El-Chami was limited to what El-Chami said to the police in his first statement, but "he was not recounting an independent recollection of what he had heard". It was submitted that that was "put beyond doubt" by his statement in cross-examination, that he could not remember if what he said in his August statement was true (see [58] above).
3. It was submitted that in these circumstances, having regard to the provisions of s 60(3) of the Evidence Act, the evidence was not admissible to prove the content of the statement and Mr El-Chami's evidence, which we have set out at [55], could only go to credit. It was submitted that in these circumstances, leave should not have been granted under s 38 to permit cross-examination by the Crown on paragraph 11 of MFI 5.
4. The appellant submitted that in granting leave to cross-examine Mr El-Chami, her Honour failed to give reasons and failed to have regard to s 192 of the Evidence Act. Senior counsel for the appellant submitted that the exercise of the s 192 discretion was not "straight-forward at all" in the circumstances of the present case, and it was necessary to have regard to the fact that the out of court testimony could not be used for a hearsay purpose as an admission.
5. Senior counsel for the appellant rejected the proposition that Mr El-Chami, in the passage at [55], affirmed the truth of what was said in paragraph 11 of his statement, but submitted that having regard to the self-evident inconsistencies in Mr El-Chami's evidence, what was said in court was "worthless" and what was said out of court was inadmissible. He submitted that even if Mr El-Chami affirmed the truth of the statement, what was left was "wholly unreliable" out of court testimony which had to be taken into account in exercising the discretion under s 192. He submitted, however, that the answer "True" was ambiguous and did not amount to an affirmation of the truth of the statement.
6. The appellant submitted, referring to Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 (Stanoevski) at [41] and [47], that the failure to have regard to the relevant factors set out in s 192 constitutes error.
7. Senior counsel for the appellant submitted that s 192(b) and (c) of the Evidence Act required the Court to take into account the unfairness to the appellant in permitting the cross-examination and the importance of the evidence. He submitted that there was not only unfairness to the appellant resulting from his counsel having completed his cross-examination prior to the application being made, but the unfairness of having the out of court representation in evidence, notwithstanding the possibility of directing the jury to ignore it.
8. So far as Ground 2 was concerned, the written submissions of the appellant refer to the reliance placed on the statement, noting that it was argued by the Crown Prosecutor that the statement was corroborated. In these circumstances, the following passage of the Crown Prosecutor's address was referred to: "If you had to depend on Mr El-Chami's word alone, who could blame you for thinking, Well, you know, I don't know if I want to act on his word alone because, you know, there are reasons. He got a discount on his sentence; he removed himself from more serious trouble, or the accusation of more serious trouble because he was demonstrably not involved for ways that you've all seen - just as he told the police. Well before he'd ever watched the CCTV, he was giving the police, as you may think, a version of what happened which the CCTV happened to show was correct. He did absent himself early on for about 20 minutes, as he estimated, 22. But, as this is a big but, ladies and gentlemen, he's supported in his evidence to you that the accused made that admission to him because point 15 is the accused's thumb print was found on the tiled surface of that broken table, coffee table, 1 and a half metres by half a metre picked up. How do you pick something up? (Demonstrated) a number of ways, you may think. One of them of course is by putting your fingers underneath an object like a table and steadying it with your thumb on the top. Now, where the thumb print was found on the tiled surface, we're not entirely sure, there's no evidence about that, maybe that's not the case. Maybe the thumb print was put there on some other occasion because we know that the accused was a regular visitor. Maybe he just, I don't know, touched it on some previous occasion and had nothing to do with it. But then you go back to what he said to El-Chami. He said 'I smashed the table over his head'. So, you see, one supports the other. It is not an allegation without support and the support itself comes with the allegation."
9. The appellant submitted it was incumbent on the trial judge to give a direction that the out of court representation could not be relied upon to prove the truth of the statement. It was submitted that the failure to do so amounted to a substantial miscarriage of justice, such that rule 4 of the Criminal Appeal Rules did not apply.

(b) The respondent

1. The respondent in written submissions submitted that no complaint was made by trial counsel for the appellant about what had occurred. In the circumstances, it was submitted, r 4 applied. However, it must be said although it is true that the particular matters raised by the appellant in the appeal were not raised directly, trial counsel for the appellant did object to the second application under s 38.
2. In the Crown's written submissions it was contended that it was incorrect to state that the parties at the trial "did not turn their minds to the relevance" of the admissions made by the appellant to Mr El-Chami. It was submitted that Mr El-Chami "confirmed the truth of what he had said in his first written statement about the appellant's admissions", which made the admissions first-hand hearsay and admissible under s 81 of the Evidence Act. It was submitted that there was no miscarriage of justice. In that context, the Crown submitted at the hearing that "everyone knew exactly what was being done" during the trial, namely, that the Crown was trying to get evidence from Mr El-Chami that was in accordance with the statement that he had made earlier on 20 August.
3. At the hearing the Crown, referring to Dunks v R [2014] NSWCCA 134 and R v MDB [2005] NSWCCA 354, submitted that it was not necessary for the trial judge to refer in detail to s 192, provided she took into account the matters required by that section to be taken into account and that it was incumbent on counsel to draw attention to matters of concern under the section. It was submitted that the argument which took place prior to the trial judge making the order under s 38, showed that she had taken the matters in s 192(b) and (c) into account.

Consideration

1. The exception to the hearsay rule in s 60 of the Evidence Act does not apply in a criminal proceeding. The effect is that second-hand hearsay of a representation made in an out of court statement cannot be relied upon as an admission for the purpose of s 81 of the Evidence Act. Thus if, as was contended by the appellant, all that Mr El-Chami had done in his evidence was to affirm the fact he made the statement which became MFI 5, that would not be evidence of the truth of its contents.
2. This was made clear in Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60. In that case a witness had made an out of court statement which included admissions made by the accused. At the trial, the witness gave evidence denying or not admitting that the admissions had been made. It was held that s 60 did not permit the out of court statements to be used as proof of what was said. Emphasising that s 59 of the Evidence Act required consideration first of why it is sought to lead evidence of something said or done out of court, the Court went on to make the following remarks: "[28] The nature of what Mr Calin said in his statements to the police was such that evidence of those statements was evidence both of representations made by Mr Calin to the police (about what Mr Calin had seen and heard) and of representations made to Mr Calin by the appellant (about what the appellant had done). By virtue of s 59, the evidence was not admissible to prove the existence either of the facts which Mr Calin intended to assert to the police or of the facts which the appellant intended to assert to Mr Calin. Section 60 operated only upon the former representations; it had nothing to say to the representations made by the appellant to Mr Calin. It was only the representations made by Mr Calin to the police that were relevant for a purpose referred to in s 60: the purpose being to prove that Mr Calin had made a prior inconsistent statement and that his credibility was thus affected. The hearsay rule was rendered inapplicable to Mr Calin's representations, but not to the representations allegedly made by the appellant. And, of course, the representations allegedly made by the appellant were not admissible under the confession exceptions to the hearsay rule created by s 81 because the evidence of these confessional statements was not first hand (s 82)."
3. Subsection (3) of s 60 was inserted in the legislation subsequent to this decision. It makes it clear that what was stated in Lee was consistent with the legislative intention.
4. It follows that if the only purpose of the application under s 38 was to lead evidence for the purpose of attacking the credit of the witness on the basis that he made a prior inconsistent statement, there would have been powerful reasons to reject the application, particularly having regard to the unfairness to the accused: Evidence Act s 192(2)(b). However, in our opinion the application was not made on this basis.
5. Although the first application under s 38, to which no objection was taken, was presented on the basis that paragraph 8 of MFI 5 was a prior inconsistent statement, the witness although first only saying that he made the statement, ultimately stated that paragraph 8 was true.
6. The second application (see [53]) was expressed in terms of being for the purpose of leading admissions in paragraph 11 of MFI 5. Her Honour recognised that it was "a serious admission" and described it as a matter of "fundamental importance". She said it was not a collateral matter.
7. On the following day, trial counsel for the appellant stressed his disadvantage, both by reason of the fact he had completed cross-examination and that he structured his cross-examination in a particular way. He submitted that the disadvantage would not be ameliorated by the jury being told that further cross-examination on behalf of the Crown and by him, resulted from an error of the Crown in the conduct of its case. Trial counsel for the appellant agreed it was a highly relevant piece of evidence.
8. It was contended that the trial judge's discretion miscarried essentially for three reasons. First, she failed to consider the matters in s 192 of the Evidence Act and in that context, failed to give reasons for the exercise of her discretion, second, that the evidence could only be admitted as going to credit, and third, that even if Mr El-Chami had affirmed paragraph 11 of MFI 5, it would be worthless having regard to the inconsistencies in the evidence that he had given up to that time.
9. In Stanoevski, it was stated that in exercising a discretion conferred by the Evidence Act, the trial judge fell into error by failing to take into account the matters referred to in s 192 of the Evidence Act: (2001) 202 CLR 115 at [44], [55], [57] and [67].
10. However, the fact the trial judge did not specifically refer to s 192 is not itself an error, providing that it could be shown that she had in fact considered the matters referred to in that section: Dunks v R [2014] NSWCCA 134 at [43]; R v Reardon [2002] NSWCCA 203 at [23]-[24]. In the former case R A Hulme J, with whom Gleeson JA and Campbell J agreed, cited the following passage in R v Reardon with approval: "[30] ... unless the contrary may be inferred from the circumstances or from what a judge does say, it should be assumed that a judge hearing a case will continually be having regard, in making such decisions as in the judge's other acts and omissions during the course of the hearing, to ... the matters referred to in s 192(2). [31] These are all matters normally uppermost in a judge's mind throughout the conduct of a first instance hearing, and it would be strange indeed that there should be a legislative requirement that they be articulated on every occasion when there is leave or permission granted or a direction given under the Evidence Act. To require a bald incantation of regard to the section or to the items referred to would be to promote an empty formality; while to require reasoned discussion of each item on every occasion would be absurdly onerous and productive of delay and injustice." See also R v Selsby [2004] NSWCCA 381 at [58].
11. In R v RTB [2002] NSWCCA 104 the Court, after referring to Stanoevski, made the following remarks at [88]: "The Court is not saying, of course, that it is necessary to refer to the section number. What is required, before leave is given, is that the issues relevant to the exercise of discretion, including those identified by s192(2), are considered. The terms of the judgment may make it obvious that such matters have been taken into account. Even where the judgment is silent, it may be apparent that a particular matter was taken into account, either because of the argument which preceded judgment, or because the matter is so obvious as to not require statement."
12. Further, as Simpson J stated in R v MDB [2005] NSWCCA 354 at [19], "[i]t is the obligation of counsel to draw to the attention of the Court any of the s 192 considerations that are relevant" and the obligation of the Court was to take them into account.
13. In the present case no reasons were given by the trial judge and she was not requested to give them. The matters in s 192 which bear upon the exercise of the discretion in the present case were s 192(2)(b) and s 192(2)(c). It is clear from the argument which took place that these matters were in fact considered by the trial judge in reaching her decision. So far as s 192(2)(c) was concerned, she referred to the importance of the evidence, describing it as a "damning piece of evidence" and "highly relevant". Trial counsel for the appellant agreed with her. The trial judge considered the submission of unfairness made by trial counsel for the appellant on the basis that he had completed his cross-examination and evidently took the view that there could be further cross-examination, and any prejudice would be ameliorated by the jury being told it resulted from an omission by the Crown. In these circumstances, it seems to us that the matters referred to in s 192(2)(b) and (c) were taken into account.
14. It was fundamental to the appellant's submission that the evidence to be led could only go to credit and this was not taken into account. There are a number of difficulties with this submission. First, it ignores the fact that if Mr El-Chami affirmed the truth of paragraph 11 of MFI 5, it would be admissible against the appellant as an admission under s 81 of the Evidence Act. Second, at the time the trial judge came to consider the matter she was not in a position to know whether Mr El-Chami would or would not affirm the truth of the statement and thus give in court evidence of the admission or deny it. If he denied it, it would of course have been necessary for a direction to be given to the jury that the statement could not be used as proof of its contents. In that context, it must be remembered that when Mr El-Chami was asked about paragraph 8 of MFI 5, he agreed he told the truth in his first statement. Third, no submission was made to the trial judge that any further examination could only go to credit.
15. Finally it was suggested the evidence was worthless. In Stanoevski, a case concerning an application for leave to cross-examine on character, the majority observed that "the weight to be accorded to the evidence sought to be adduced whether in cross-examination or otherwise, is a matter of considerable relevance" to the exercise of the discretion: 202 CLR 115 at [44]. In the present case whatever weight the evidence may have would depend on the jury's assessment of the evidence. It does not seem to us that it was necessary for the trial judge to refuse leave because of her assessment of the weight of the evidence, particularly when she was not requested to do so.
16. It follows that Ground 3 has not been made out.
17. Ground 2 depends upon whether the evidence given by Mr El-Chami merely affirms the fact that he made the statement contained in paragraph 11 of MFI 5 or whether he affirmed its truth. If the former, it could only go to credit and the ground would have been made out. If the latter, it was admissible to prove the truth and there was no error in failing to give the direction referred to in the ground.
18. We have set out the evidence at [55]. Mr El-Chami first referred to paragraph 10 of MFI 5 and it was put to him, "That's true isn't it" and he agreed. The concluding question referred to the edited version of the statement in paragraph 11 in MFI 5 and he was asked, "True?" and he responded "True".
19. It seems to us that in giving that answer, Mr El-Chami stated that what he said in the part of paragraph 11 of MFI 5 that was read to him was true. The evidence given in Court was first-hand hearsay and was admissible under s 81. There was therefore no need for the direction.
20. It follows that Ground 2 has not been made out.

Ground 4

1. As we have pointed out, Mr El-Chami was sentenced on 19 April 2016 for the offence of concealing a serious offence and was placed on a bond to be of good behaviour for a period of three months. He had already spent a considerable time in prison whilst on remand, first, on the charge of murder of the deceased and second, for the offence for which he was ultimately convicted. In imposing sentence the sentencing judge granted a significant discount on the basis of an undertaking by Mr El-Chami that he would provide assistance to the police and prosecuting authorities by giving evidence in the prosecution of the appellant and Mr Azar, who at that stage had not pleaded guilty to manslaughter. He was cross-examined to that effect on a number of occasions. In these circumstances a direction under s 165 of the Evidence Act was sought by counsel for the appellant.
2. Section 165 is in the following terms: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3)."
3. At the conclusion of the seventh day of the trial while the appellant was still under cross-examination, trial counsel for the appellant requested that the trial judge give a direction under s 165(1)(d) of the Evidence Act and the trial judge agreed to do so.
4. Trial counsel for the appellant addressed extensively on the evidence of Mr El-Chami. Initially he emphasised its unreliability in the following terms: "Now what my submission to you in relation to Mr Mohamed El-Chami is that he is an unreliable witness. He is, in my submission to you, an untruthful witness and, in my submission to you, you should, in my submission to you, reject most, if not all, of his evidence. He has lied to the police many times before and, in my submission to you, he has lied in this trial. If you come to the conclusion, members of the jury, that Mr Mohamed El-Chami is a witness that you cannot rely upon in assessing whether or not the Crown has proved its case beyond reasonable doubt, then the Crown simply has no case, in my submission to you. Fundamentally, fundamentally at the root of the Crown case, its foundations are built upon the evidence of Mr El-Chami, and if you come to the conclusion that his evidence at the very least is unreliable then, in my submission to you, the Crown has no case whatsoever against the accused."
5. Thereafter having reviewed part of his evidence, trial counsel for the appellant proceeded to deal with Mr El-Chami's statement of 20 August 2013. He made the following remarks: "Members of the jury, can I continue where I left off yesterday dealing with the evidence of Mr El-Chami? I, first of all, want to deal with circumstances in which he came to make his statement on 20 April of 2013. To understand the circumstances in which he made that statement, you will appreciate, of course, that you've heard evidence that, on 16 March, he was initially interviewed, denied everything, he was released - that was with Azar - and then, on 19 - sorry, 16 August, I should have said. Then on 19 August, he was interviewed by the police over a lengthy period of time. You will recall that Detective Sergeant Hinds gave some evidence about that. During the interview of 19 August 2013, towards the end of that interview, he was told that he was going to be charged with murder. There was a short break. Then following that, there was another interview with El-Chami to the police, which became either MFI 4 or MFI 5, the statement that the Crown asked Mr El-Chami questions about. Following that, he was charged with murder. Following that, he was committed for trial charged with murder. Following that, earlier this year, on 31 March earlier this year, as I understand it - and this was evidence led from him by the learned Crown at page 214: 'Q. Later, the murder charge was dropped and you were charged with concealing a serious offence, is that true? A. Yes.' He pleaded guilty in the Supreme Court on 31 March of 2016. Now in terms of pleading guilty to the concealed serious offence, he provided a statement to the Supreme Court dated the same day, dated 31 March 2016, where he set out in detail the evidence that he would give, as I understand it, in this trial. You will recall, of course, in relation to that statement, I think it's MFI 5 or 4, I forget which one, he wasn't asked any questions by the Crown about that statement. I certainly asked him some questions about it. So, you might conclude from that, so far as the Crown is concerned, what he said in his statement earlier this year was consistent with what was put in his statement. He undertook to give evidence and, as the Crown indicated to you, he was given a 50 percent discount on the sentence for a combined discount for his plea of guilty and his offer of assistance to the authorities to give evidence. Of that 50 percent, 20 percent was attributable in terms of a discount to him given evidence in this trial. So, he received a substantial discount on his sentence in relation to giving evidence in this trial and, of course, if he did not give evidence in this trial in accordance with the conditions of his bond, he was at risk of the bond being revoked and he'd be called up for sentence by the judge who had taken the plea from him which would have exposed him to a risk of receiving a full-time custodial sentence."
6. Counsel for the appellant then referred to the evidence of Mr El-Chami to the effect that in making his 2013 statement he got the names mixed up (see [50] above) effectively resiling from that statement. Counsel then made the following remarks to the jury: "You will recall that the Crown, in asking questions, before that had showed him the relevant part of the statement and he had said that when he - and he had agreed with the Crown in his questioning that it was true. But, however, when he was cross-examined upon that in relation to this statement this year, he said to her Honour, in relation to the 2013 statement, he was confused and scared at the time that he was arrested. … Now just pausing there for a moment, members of the jury. The way in which the Crown has presented its case in this trial, it is clear, on the evidence that, the Crown has adduced in this trial, in the way that it has been argued in this trial that, Mohamed El-Chami did not have anything to do with it. Did not. And so, in those circumstances, because, on the Crown theory, of the way that the Crown has run, relying upon the CCTV evidence when it is alleged that the assaults took place, it is clear from the CCTV footage on the Crown case that Mohamed El-Chami is not there. They have said that in their case. So when Mr Mohamed El-Chami was charged with murder on 20 August 2013, he was in fact innocent, on the way that the Crown has run its case in this trial, as I understand it, and because the CCTV revealed that he was not there. You might well understand that is what led to the charge against him being dropped earlier in this year. So if I'm right on my understanding of how things developed, you can imagine that if in fact Mr El-Chami was innocent of murder, and he's been charged with murder, and remains charged with murder for a number of years, he would have been, in those circumstances, highly anxious, absolutely distressed, absolutely distraught, beside himself not knowing what to do. Then he goes on to say that he was distraught and upset, and he said that he had been shot. He went through the two occasions that he had been shot. He was on medication for post-traumatic stress disorder which arose out of, so he says, the two shootings that he had sustained. In those circumstances, members of the jury, you might think in those circumstances, bearing in mind his mental health at the time, bearing in mind the great stress that he was on being charged with an offence that he had not committed, you might think that in those circumstances the temptation or the urge to blame others would have been overwhelming. To put himself in a better light would have simply been overwhelming. To twist things around, either consciously or even subconsciously, by the time we come to the making of his statement in 2016, he is no longer charged with murder. He doesn't have that hanging over his head. He has this charge of conceal serious offence, which is must less serious, of course, than murder. Now at page 267, I asked him questions about this and he said, in answer he said, in part, at 267: 'A. From 2013 to 2016, inside gaol, sitting there being accused of something I did not do.' I asked him again about his mental state back in 2013, and about the circumstances he was shot and the way that he dealt with that in terms of self-medicating with illegal drugs and by taking drugs that had been prescribed for him. Now members of the jury, it's my submission to you, when the fog cleared from Mr El-Chami, so to speak, when this sword that was hanging over him cleared - that is, going to trial for murder, for an offence that appears, we all know now, he had not committed - then he made his statement. In my submission to you, the most reliable history, the most reliable account that he has given, is to be found in what he said to his solicitors in preparation for his sentencing hearing on conceal serious offence and as an indication to the sentencing judge as to the evidence that he would be giving in this trial because everything is now lifted. He's no longer got the murder charge hanging over him. You can see how that would have been an enormous relief to him. … So, members of the jury, for all those reasons, when you look back to the circumstances that this witness was in (that is, Mr El-Chami) back in August of 2013, you could not possibly, in my respectful submission to you, accept it as a reliable indication of what actually took place that night in so far as it refers to the accused. Just think about it, members of the jury. This young man, with a history of being shot, with a history of post-traumatic stress disorder, with a history of active post-traumatic stress disorder, with intrusive thoughts and flashbacks, combined with drug use at the time, in my submission to you, you could not accept what he said about the accused in August of 2013."
7. Following the conclusion of counsel's address, the following discussion took place: "SCRAGG: Well, he's still criminally concerned, your Honour, of concealing a serious indictable offence. HER HONOUR: Criminally concerned in the events giving rise to the proceedings? SCRAGG: Yeah. HER HONOUR: Well, after the - SCRAGG: Well, I don't think he has to be charged, your Honour, to be criminally concerned. HER HONOUR: But you were saying he wasn't criminally concerned. SCRAGG: On the Crown case, yes. That's what I said. HER HONOUR: In your estimate - SCRAGG: Yes. HER HONOUR: -- of the events - SCRAGG: Yes. HER HONOUR: -- he was not criminally concerned. SCRAGG: Yes, your Honour. That's right, because he wasn't - HER HONOUR: If he wasn't criminally concerned, how does s 165 apply? SCRAGG: In my submission, it still does apply. HER HONOUR: I think I will have to temper down. I was going to raise, obviously, s 165. You having asked me to. SCRAGG: Yes. HER HONOUR: But given your address to the jury, it undermines a lot of - certainly, he has the incentive. SCRAGG: But he's charged with murder, your Honour, for many years. He's got murder hanging over him for many years. HER HONOUR: He was charged with murder. SCRAGG: Yes. HER HONOUR: But then the charge was dropped. You, yourself, said to the jury - SCRAGG: I know. HER HONOUR: It's your address I'm relying on here. SCRAGG: Yeah, I know. Yes. HER HONOUR: He was charged. That doesn't mean he was reasonably supposed to have been criminally concerned in the events giving rise, and you said to the jury he wasn't. SCRAGG: Well, yes, I did. But, your Honour, at the time he was perceived that way. HER HONOUR: Yes, but we're talking about reliability of his evidence. SCRAGG: Yes, back then, We're talking about - HER HONOUR: We're talking about the reliability of his evidence as a witness.
8. The discussion above took place on the ninth day of the trial. On the following day, further argument ensued: HER HONOUR: The section 165. What I was planning to do, Mr Scragg, was to point out to them that you said, you submitted in your address, that he couldn't have been concerned that Mr El-Chami - that really, it's up to the jury. SCRAGG: On the Crown case, as we now understand it, the police had a different understanding of it back at the time that he was charged, but as we roll forward, as it were, over the years, well, there's a different understanding of it. HER HONOUR: I'll just put that if they find that he might reasonably be supposed to have been criminally concerned in the events then, the caution arises. It's a matter for them. SCRAGG: Yes. Your Honour, I wasn't intending, in my address, to talk myself out of that section, but I understand why your Honour has raised it with me. Can I refer your Honour to section (2)(b) of section 165: Inform the jury of matters that may cause it to be unreliable. HER HONOUR: Well, I was just going to say, if they consider that he was, that then he might be concerned to reduce his own culpability and lay it on others. … HER HONOUR: I was simply going to say that, as you'd pointed out, that he'd received a deduction for a plea of guilty and partially for his undertaking to assist the Crown by giving evidence in these proceedings, and if he's failed to do so, he made himself liable to come back before the Court and potentially even face a prison term. So I was going to say that, in any event. SCRAGG: Yes, your Honour. It's just, as we were on 165, I thought I might just raise it for completeness, your Honour, that's all."
9. In her summing-up the trial judge dealt with the evidence of Mr El-Chami in the following terms: "Now, the third matter relates to the evidence of Mohamed El-Chami. He was the most significant Crown witness, you might think, being the only one who was personally present at any of the events at the relevant time. As you know, he was originally charged with murder, a charge which was later withdrawn and replaced with a charge of concealing a serious crime to which he pleaded guilty. He was sentenced in March this year and given a bond to be of good behaviour. A significant reduction in sentence was given because of his plea of guilty, 50%, as well as 20%, his undertaking to assist the Crown by giving evidence in the present proceedings. He therefore had, as counsel have pointed out, a strong incentive to assist the Crown in this trial. Indeed, if he had failed to do so, he would have probably been brought back before the sentencing Court and might have faced a prison sentence. So Mr El-Chami, in one way or another, can therefore be taken to have been criminally concerned in the matters giving rise to these proceedings. Whether he was in fact involved in it is a matter for you. Mr Scragg put, very forcefully in his final address, that Mr El-Chami was not involved at all in the assaults on the deceased. Well, if you consider that to be the case, you will be entitled to ignore the warning I am about to give you because the warning, as I said, relates to witnesses who might reasonably be supposed to have been criminally concerned in the events giving rise to the present proceedings. The Courts, over the years, have accumulated a great deal of experience which has shown that the evidence given by witnesses in these circumstances can often be unreliable. It is not always so by any means, but it means that you must approach Mr El-Chami's evidence with considerable caution if you consider that he himself might reasonably be supposed to have been criminally concerned in the events giving rise to these proceedings. There are a number of reasons why the evidence of such a person might be unreliable. He might want to shift the blame away from himself and justify his own conduct and, in the process, lay the blame on others; he might make false claims against others out of motives of revenge, as indeed was, at one stage, suggested here; or a feeling of hostility. As I have said, this does not have to be the case, it is entirely for you, but, as a matter of law, I am obliged to you warn you of the caution with which you must approach this type of evidence if you consider that Mr El-Chami might reasonably be supposed to have been criminally concerned in the events giving rise to these proceedings."
10. In subsequently dealing with the evidence of Mr El-Chami in her summing-up, the trial judge referred to the fact that after Mr El-Chami made the August 2013 statement he had been initially charged with murder and repeated the direction that the jury could take into account the reduction in sentence he received for the offence for which he ultimately pleaded guilty because of his promise to help the prosecution.

(a) The appellant

1. Senior counsel for the appellant described the way the direction was given as "worse than no warning" because the jury were told to disregard it if they were satisfied he was not criminally concerned and they could ignore the discount for assistance.
2. Referring to the passage of trial counsel's address commencing "when the fog cleared" (see [97] above), senior counsel for the appellant submitted that a warning under s 165 of the Evidence Act would not have undermined that submission, stating that that submission was addressed to paragraphs 8 and 11 of MFI 5. He emphasised that the Crown did not oppose the warning.
3. Senior counsel for the appellant, referring to Kanaan v R [2006] NSWCCA 109 at [166], submitted that one basis on which the evidence may be unreliable is "directly relevant to the indemnity or undertaking given to the witness", something which is less likely to be "within the general understanding and experience of jurors".
4. It should be noted that in written submissions filed for the appellant, it was acknowledged that "there was no evidence Mr El-Chami was 'criminally concerned in the events giving rise to the proceedings'".

(b) The respondent

1. The Crown submitted at the hearing that having regard to the cross-examination of Mr El-Chami, there was a real question as to the sort of warning which should have been given which was not addressed. The Crown rhetorically asked "was her Honour supposed to say 'well he's unreliable in certain aspects but not in others'".

Consideration

1. The circumstances of the present case are unusual. First, when Mr El-Chami made his first statement he was suspected of murder, an offence for which he was charged shortly after making the statement: see R v El-Chami [2016] NSWSC 445 at [5]. Subsequently, the murder charge was withdrawn and by the time he came to be sentenced for the crime of concealing a serious offence, he had made the statement which became MFI 4.
2. Second, trial counsel for the appellant accepted that Mr El-Chami was not a person who might reasonably be supposed to have been criminally involved in the events giving rise to the proceedings (see [98] above). That was accepted in the written submissions on the appeal (see [105] above).
3. Third, far from the suggestion that the whole of Mr El-Chami's evidence was unreliable, the appellant sought to rely on what was said in MFI 4 stating, "The most reliable account that he has given is to be found in what he said to his solicitors in preparation for his sentencing hearing on conceal serious offence and as an indication to the sentencing judge as the evidence he would be giving in the trial because everything is now lifted". Although trial counsel said emphatically that what Mr El-Chami said in his August 2013 statement should not be accepted, he did not suggest his evidence otherwise was unreliable, rather he asked the jury to rely on one version of his evidence whilst rejecting the other.
4. It was in this context that the trial judge made the remarks to which we have referred at [100]. The opening paragraph expressly refers to the incentive Mr El-Chami had to aid the Crown, stating "in one way or another, [he] can therefore be taken to have been criminally concerned in the matters giving rise to these proceedings".
5. The balance of the trial judge's summing-up on this issue, to which we have referred, sought to accommodate trial counsel for the appellant's contention that Mr El-Chami was not criminally involved in the events giving rise to the proceedings, which was of importance to him in persuading the jury that the second version given in his statement was correct. It was in this context the trial judge said the warning she was about to give could be disregarded.
6. A warning may be required when a matter falls within one of the designated categories in s 165(1) of the Evidence Act. However, there are some cases when it will not be necessary to give one. Equally, there are cases when a warning of the kind contemplated in s 165 needs to be given, even if the particular circumstances do not fall within one of the designated categories in s 165. Thus, in R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260, Hulme J made the following remarks: "[38] The ease with which the language used in s 165 can be applied to circumstances which, if 'of a kind' has the significance Howie J and I would afford to it, parliament cannot have intended to be within that language means that some test of what is and what is not evidence to which the section applies is necessary. For the reasons given by Howie J, whether the evidence is such as could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge is an, if not the, appropriate test. The fact that some of the specific examples included in s 165(1) of evidence of a kind that may be unreliable, for example, that which may be affected by age or mental ill health, are of evidence which a jury could be expected to regard as suspect in accordance with their general knowledge, does not invalidate this conclusion." Whilst Howie J dealt with the issue somewhat more extensively in the following terms: "[87] The content of the warning will depend upon the circumstances of the particular case including any aspect of the trial, such as cross-examination and counsel's addresses: R v Johnson (1998) 45 NSWLR 362 at 369. In Bromley Brennan J said (at 325): 'The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.' … [92] The categories of evidence designated in the section include, generally speaking, those kinds of evidence where the common law (as affected by legislative intervention in the case of sexual assault complainants) had required that a warning be given. They are the kinds of evidence about which, at the time when the provision was proposed by the Commission, the courts had already acquired a special knowledge of the potential unreliability of the evidence or in respect of which the courts had perceived that there was a danger of the jury overestimating the weight to be given to the evidence. It was the nature of the evidence that made it suspect or that gave rise to concern that the jury might give it undue significance. A warning was generally required unless the circumstances of the charge, the issues at the trial, or the manner in which the trial had been conducted indicated that a warning was not warranted. … [95] Whether the evidence in respect of which a request for a warning is made comes within one of the designated categories will be a matter for the trial judge to determine. It is a discretionary judgment which will generally involve a question of fact: R v Flood [1999] NSWCCA 198 at [14]; R v Taranto [1999] NSWCCA 396 at [2], [38]. The section is concerned with the possibility of unreliability: R v Flood (at [3]). But as the Commission recognised in the second of the quotes from the Interim Report above, a warning does not have to be given just because the evidence comes within a specified category or might otherwise fall within the scope of the section. For example, there is no requirement that a warning always be given where the complainant in the trial of a child sexual assault offence is of a young age: R v AGJ (Court of Criminal Appeal, 30 October 1997, unreported); Lane v The Queen (1996) 66 FCR 144 at 149, or where a witness is suffering from a mental or physical disability: R v Flood, above. A warning is only required where there is a real possibility that the matter, which causes the evidence to fall into one of the designated categories, actually affects the reliability of the evidence before the court. The trial judge is entitled to come to the view that the reliability of the evidence is not affected by a matter which would otherwise bring the evidence within the section: R v Flood (at [10]). [96] The application of s 165 to the evidence before a jury is clearly not restricted to evidence falling within the categories specified in s 165(1): R v Williams (1999) 104 A Crim R 260 at 268; R v Covill (2000) 114 A Crim R 111 at 121. However, the scope of the section in respect of evidence not coming within the designated categories is somewhat problematic. Any evidence adduced before a jury may be unreliable, yet it could not have been intended that the section should require a trial judge to determine whether there are good reasons for refusing a request to give a warning simply because a party points to some aspect of the evidence which suggests it may be unreliable. That was certainly not the intention of the Commission. … [98] Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not 'of a kind that may be unreliable' and the section does not apply. Consistently with the common law, the Commission's proposals, and the decision in R v Baartman, matters of a general nature that might affect the reliability of any kind of evidence adduced in a trial do not of themselves bring the evidence within the scope of the section. [99] In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone 'evidence of a kind that may be unreliable'. However, as I will indicate later, these types of matters might be made the subject of comment by a trial judge, and, in the case of a crucial Crown witness, a summing up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused."
7. Further, in Kanaan v R (2006) NSWCCA 109, the Court dealt with matters which had the potential to make an induced statement by an accomplice unreliable and require the giving of a warning. Relevantly, they made the following comments: "[164] The first and second bases on which such evidence may be unreliable are unrelated to any indemnity or undertaking given to the witness. The first basis applies to any witness involved in criminal activity - either the same criminal activity as the accused or other criminal activity. That involvement is directly relevant to the credit of such a witness, and its relevance to that issue would ordinarily be a matter of which jurors will be aware. [165] The second basis on which the evidence may be unreliable is where the witness was involved in the same criminal activity as the accused. For convenience, we assume in this and the next paragraph that the witness is a male. There is a motive for such a witness to construct a false version of the events in order to justify his own behaviour or to shift the blame from himself to others, by downplaying his own role and by either playing up the role of the accused or by blaming an innocent party (such as the accused) for the crime which was committed. In such a case, having given that false version to the police in order to extricate himself from criminal responsibility or to lessen the extent of his own responsibility, the witness has effectively locked himself into that version, and may feel bound, as a matter of self-respect, to repeat that false version when he gives evidence. The evidence of such a witness, moreover, is likely to have a seeming plausibility because of his detailed knowledge of the circumstances in which the crime was committed, and this plausibility may add undeserved weight to what he says about the part played by the accused. [166] The third basis on which the evidence may be unreliable is directly relevant to the indemnity or undertaking given to the witness. It is a matter less likely to be within the general experience and understanding of jurors than the last basis. The consequence of such an indemnity or undertaking is that, in return for giving evidence, the witness obtains the benefit or advantage of evading a prosecution in relation to his own criminal activity. The nature of that benefit to the witness, the consequence to the witness if he does not adhere to the (induced) statement he gave to the police, and the effect which such a consequence may have on the truthfulness of the evidence given by the witness are not matters within the general experience and understanding of jurors and thus will ordinarily require mention in the warning given: Regina v Stewart at [38], [98], applying Bromley v The Queen (1986) 161 CLR 315 at 323-324 (Brennan J) and following Regina v Baartman [2000] NSWCCA 298 at [62]. Not only may the witness feel bound, as a matter of self-respect, to repeat the false version given to the police when he gives evidence, he will necessarily feel bound to do so, as a matter of self-protection, in order to avoid prosecution for his own criminal activity."
8. These cases establish that there was no need to give a warning under s 165 as to unreliability where it is a consequence of the inconsistency in the evidence given by the witness, or inconsistencies between that evidence and a prior statement by the witness. That such matters could affect reliability would be well understood and appreciated by a jury because it "falls within their general understanding and experience": see Stewart at [98]-[99]. Equally the fact that a witness may have an incentive to give evidence favourable to the Crown by virtue of the fact the witness received a discount on sentence is something which should be drawn to the attention of the jury. The trial judge did so independently of the s 165(1)(d) warning, both prior to giving the s 165(1)(d) warning and subsequently in her summing-up: see [110] above.
9. There remains the complaint about the s 165(1)(d) warning. Such a warning is required when the witness "might reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". If a witness was not so criminally concerned as was accepted to be the case at the trial and on appeal, there was no reason to give such a warning and indeed it would be wrong to do so. In the latter part of that portion of the trial judge's summing-up to which we have referred at [100], the trial judge was concerned to explain to the jury that the particular matters giving rise to the unreliability of Mr El-Chami's evidence if he was criminally concerned, would not apply if the jury, consistent with the position taken by counsel for the appellant, concluded that he was not so concerned.
10. It is difficult to see what other direction could have been given. None was suggested either at the trial or on appeal. In Greenhalgh v R [2017] NSWCCA 94, Basten JA stated at [21] that "in cases where no direction was sought [at trial], it will usually be a pre-condition to a grant of leave under r 4 that the omitted direction should be expressly formulated".
11. In the present case, irrespective of the application of r 4, it is difficult to see what direction should be formulated in the absence of any one being suggested. It would not be appropriate to direct the jury that one portion of Mr El-Chami's evidence was unreliable whilst another was not. This had been put forcefully by the appellant and was a matter for the jury to consider. It was not a matter for the trial judge to implicitly express a preference for one of the two versions by stating that one might be unreliable for particular reasons whilst the other was not. The alternative was to suggest the whole of Mr El-Chami's evidence should be treated with caution. That would be to cause injustice to the appellant who was contending that in the circumstances, to the extent Mr El-Chami's evidence was consistent with what was contained in his statement which was MFI 5, it should be accepted.
12. It follows, in our opinion, there was no miscarriage of justice in the direction given on this issue. This ground of appeal has not been made out.

(a) The appellant

1. The appellant submitted that the evidence against him consisted of four discrete heads of evidence:
2. Forensic evidence;
3. CCTV evidence showing his movements, and the movements of Mr Azar and Mr El-Chami near the deceased's apartment;
4. The evidence of Mr El-Chami; and
5. The lies told by the appellant during his record of interview which were said to amount to consciousness of guilt.
6. The appellant submitted that none of those pieces of evidence, whether viewed individually or in combination, warranted a finding beyond reasonable doubt that the appellant had murdered the deceased. Rather, the appellant submitted that a review of the evidence would leave the Court with a sense of doubt, which should have been experienced by the jury at first instance.
7. As far as the forensic evidence was concerned, senior counsel for the appellant submitted that it was limited to some blood and fingerprints found at marker F4 on the pole and the thumbprint on the tiled surface of the broken table top. He submitted that the Crown Prosecutor conceded that there was no DNA evidence touching the appellant and that there was nothing in the analysis that linked the human blood with the deceased. He submitted that, although the pole had the appellant's prints on it, the pole was not directly linked to the deceased's death.
8. In relation to the CCTV evidence, the appellant submitted that it was capable of showing only that the appellant was present at or about the time of the assault upon the deceased. It was submitted that the footage demonstrated that there were periods when Mr Azar would have been in the flat, while the appellant was outside. The footage allowed of the possibility that the assault occurred when the appellant was not even in the apartment, and the footage did not establish that the appellant was present at the time of the assault, let alone that he assisted, or at least stood ready to assist, Mr Azar.
9. In relation to the record of interview, the written submissions for the appellant drew attention to the acceptance at the trial by the appellant's counsel that the appellant had lied to police and that those lies could be relied upon by the Crown as demonstrating a consciousness of guilt. The submissions, however, drew attention to the other possible explanations for the lies set out in the standard direction emanating from Edwards v The Queen (1993) 178 CLR 193.
10. The appellant submitted that, more importantly, any lies told by the appellant were incapable of distinguishing between a consciousness of guilt of the offence of murder and some lesser offence of which the appellant may have been guilty. For example, any lies told by the appellant would be equally consistent with a consciousness of guilt of the offence of murder on the one hand or, for example, concealing a serious indictable offence on the other. In that way the evidence was "intractably neutral" and could not assist the jury in determining whether the appellant was guilty of the offence of murder or some lesser offence.
11. In relation to the evidence of Mr El-Chami, senior counsel for the appellant submitted that the correct way to deal with this present ground of appeal was on the basis that the out of court statement (dealt with in grounds 2 and 3) was inadmissible. Senior counsel accepted that if the statement was admissible, the appellant would have some difficulties in establishing that the verdict was unreasonable, but that the matter was not foreclosed by a finding that it was admissible. Senior counsel submitted that the inconsistencies in Mr El-Chami's evidence, particularly between what he had said in his first statement (MFI 5) and the later statement after the charge of murder against him had been withdrawn (MFI 4), meant that his evidence had little probative value.
12. Senior counsel submitted that there were difficulties with the Crown case identifying when any joint criminal enterprise commenced. He pointed to the absence of any address to the jury on the issue of the appellant alone being responsible for the deceased's death despite the written directions providing for a verdict on that basis.

(b) The respondent

1. The Crown submitted that the case against the appellant was both direct and circumstantial. The direct evidence came from Mr El-Chami. The circumstantial evidence consisted of the matters under the 20 headings included in the Crown Prosecutor's closing address to the jury. Those headings included the CCTV clips demonstrating that the appellant was present in the apartment with Mr Azar at relevant times when Mr El-Chami was shown as being outside the unit, the fact that the deceased's body was on the floor and his feet at the door when Mr El-Chami tried to get back into the unit, the forensic evidence and the admissions made by the appellant to Mr El-Chami.

Consideration

1. The principles applying to the consideration of whether a verdict is unreasonable are well known and may be briefly stated. The question is whether, notwithstanding there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand: M v The Queen (1994) 181 CLR 487 at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. In answering the question this Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [23].
2. There is no doubt that the Crown's case against the appellant was heavily, though not solely, dependent on the evidence of Mr El-Chami. There were two significant aspects to Mr El-Chami's evidence. The first was his evidence of what he saw the appellant do to the deceased. That evidence is set out in paragraph 8 of MFI 5 (at [40] above), and consists of Mr El-Chami's agreement that he told the truth in that statement of 20 August 2013 (at [48] above). The second aspect of the evidence consisted of the admissions said to have been made by the appellant to Mr El-Chami recorded in paragraph 11 of MFI 5 (at [40] above), and which Mr El-Chami agreed was true (at [55] above). Those admissions form the basis for grounds 2 and 3.
3. We have held, when dealing with grounds 2 and 3, that the admissions made by Mr El-Chami were properly admitted as proof of the truth of those statements. It was therefore part of the jury's function to have regard to that evidence of Mr El-Chami in the light of inconsistencies in his evidence, particularly arising from what he said in his later statement (MFI 4).
4. It was open to the jury to accept those parts of Mr El-Chami's evidence even though they may have rejected what could be seen as later attempts to resile from that evidence, because the evidence was provided in a statement made at a time close to the events concerned. The jury might have accepted that, as Mr El-Chami said, when he was first interviewed he remembered things clearly but over the years he had forgotten: see at [49] above.
5. It can be accepted that some of Mr El-Chami's evidence was contradictory when differences between his statements were put to him, but it was nevertheless open to the jury to accept what was contained in his August 2013 statement. It cannot be said that the jury must have entertained a doubt about his evidence contained in that statement.
6. When considering ground 4, we set out portions of the address of the appellant's counsel at trial concerning the evidence of Mr El-Chami. Although counsel initially invited the jury to regard Mr El-Chami as unreliable and untruthful, counsel relied heavily on Mr El-Chami's statement of 2016 (MFI 4) and his evidence in support of that statement. On a number of occasions he identified evidence of Mr El-Chami that accorded with that of the appellant. In that way, the jury were invited to look closely at Mr El-Chami's evidence and to accept parts of it and reject other parts of it. The fact that they apparently accepted evidence in accordance with the 2013 statement rather than what was urged on them by the appellant's counsel does not make the verdict unsafe.
7. In any event, in paragraph 25 of the 2016 statement, Mr El-Chami said this: As far as I remember Daniel threw the first punch and then Biggie went over to Basem. Basem had stood up as Daniel approached him and Daniel hit him. I remember after Daniel hit him, Basem fell on the bed. After Daniel hit Basem, Biggie launched himself onto Basem. As far as I recall Basem was on the bed at that time. That was when I decided to leave. As I told the police in my record of interview, I have never been involved a physical fight and I have always tried to avoid violence. I didn't want to be involved in Basem being bashed up. It was open to the jury to consider that that account was not materially different from what appeared in the 2013 statement at paragraph 8: At one point, Biggie just got up and started laying punches into Basem, Daniel then joined in with him and then they were both bashing him. I decided to leave, I wasn't involved in the bashing of Basem. I walked out of the unit and waited down the street for about twenty minutes thinking they would just come down.
8. Both of those passages enabled the jury to conclude that the alleged joint criminal enterprise commenced at this point, and that both the appellant and Mr Azar were responsible for the deceased's death.
9. In a similar way, but in less detail, the Crown addressed the jury by highlighting both parts of Mr El-Chami's evidence that accorded with other objective evidence in the case, particularly the timing of events as identified in the CCTV footage.
10. When assessing Mr El-Chami's evidence, and particularly the evidence he gave of the admissions made by the appellant, the jury had the CCTV footage which, in addition to supporting Mr El-Chami's evidence of his absence from the deceased's unit for about 20 minutes (this assertion had been made by him in his 2013 statement before the CCTV footage became available), showed clearly that the appellant and Mr Azar were inside the deceased's unit alone with the deceased for various periods, but significantly for an eleven minute period before which the appellant is seen carrying a pole.
11. The jury also had Mr El-Chami's evidence, which was not disputed, that after being outside for about 20 minutes he had difficulty getting back into the unit because the deceased was lying on the floor with his feet towards the door. His face was badly injured. The deceased had clothes piled on top of him and the appellant was continuing to put clothes on top of him. The evidence from Mr Naylor was that the deceased was found in that position with clothes covering him.
12. One of the items examined at the scene was a 62cm white hollow metal pole, or handle, found in the unit. The pole was bent and broken at both ends and there was apparent blood-staining along the length of the pole, concentrated at the bent end of the pole. Areas of friction ridge detail were developed from the pole.
13. In relation to the print found at one area of the pole labelled F4, the crime scene officer, Melissa Zeglis, was asked (T100.50): Did the print indicate whether or not the blood was on the item and it was then touched by the hand or can you say whether the blood was more likely on the hand which then touched an item? Are you in a position to comment on that?" Ms Zeglis answered (T101): In my opinion in this case, it's more likely that there was blood on the hand and then it's touched the item There's a few kind of indicators as to why that would be Generally if there's blood on a surface and you touch it, you get a reverse of the fingerprint so instead of the ridges being developed, you'll visualise the grooves so you would expect to see those, like the grooves and the creases, as blood as opposed to the ridges which wasn't the case There was also - if you touch into blood you tend to get kind of like a ghosting or an outline around it and then you will see the blood around the print as well which wasn't the case here, the ridges just basically end So similar if you were to put your finger into a stamp and then put that on the surface, you will just see it kind of end, it doesn't outline it or anything like that, which is the case here.
14. It was suggested to her in cross-examination that she could not exclude the possibility that there was blood on the pole at the time that it was touched. She said: It depends on what you're asking. So there could have been blood on the pole but that actual print F4 that we're talking about, is not formed from blood being on that area and then being touched. So there still could be blood on the pole in other areas, but in my opinion, there was (sic) actual ridges or that fingerprint is formed when blood has been on the hand and touched that specific area. It doesn't count to what was on the rest of the pole.
15. A swab taken from the fingerprint stain at marker F4 on the metal pole was tested for DNA. The DNA recovered from the swab was a mixture that originated from at least two individuals. The major component of the mixture had the same profile as the deceased. Due to the low level of the minor component further interpretation was not carried out.
16. Detective Sergeant Nicole Smith of the Evidence Recovery Section carried out a comparison of fingerprints developed at the crime scene and on items from the scene, with the charge prints of Daniel Azar, Mohamed El-Chami and the appellant. Detective Sergeant Smith identified the prints at markers F2 and F4 on the white pole as right palm prints of the appellant. She also identified the print on the pole marked as F12 as the left ring finger of the appellant. A print on the tile surface of a broken table top (marked as F24) was identified as the right thumb print of the appellant. A print on the right hand side of the exterior of the front door of the deceased's unit was also identified as the appellant's left palm print.
17. The effect of the evidence of Ms Zeglis and Detective Sergeant Smith is that the appellant had blood on his hand when he touched the pole and left the impression at marker F4. That evidence is indicative of the appellant's involvement in the assault. So too was the evidence of the thumb print on the table when considered with Mr El-Chami's evidence at [55] above, concerning the appellant's admission of smashing the table over the deceased's head.
18. While the forensic evidence was not, of itself, determinative, when considered with the other evidence it provided support for the Crown case.
19. Finally, the jury saw the appellant's ERISP where he said that the last time he had seen the deceased was on Tuesday 13 August at about 7.30pm. He denied touching a metal pole found at the deceased's unit. He admitted in his evidence that those were lies and that if he had told the truth he would have been implicated in the deceased's murder. In cross-examination, he accepted, contrary to his evidence in chief, that he did not tell these lies because he was affected by drugs.
20. Having considered all of the evidence, we do not have a reasonable doubt about the guilt of the appellant. In particular, it was a matter for the jury what of Mr El-Chami's evidence ought to be accepted. It cannot be said that his evidence had little probative value, and it cannot be said that the jury must have entertained a doubt about the appellant's guilt.
21. This ground is not made out.

Conclusion

1. The following orders should be made: 1. Grant leave to appeal in respect of ground 1. 2. Dismiss the appeal.

Amendments 07 May 2019 - Cover sheet - Amended representation for the respondent 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: 07 May 2019