On 4 November 2022, Abdulrahman Khdeish (the appellant) was convicted of an offence of break, enter and steal contrary to s 112(1)(a) Crimes Act 1900 by his Honour Magistrate Bugden (the magistrate) sitting at Bankstown Local Court. The appellant appeals as of right against that conviction.
The appellant contended that the magistrate erred in concluding that the offence was proven beyond reasonable doubt based on the circumstantial evidence because:
1. the complainant was an unreliable witness;
2. the location of the fingerprints on the windowsill could be explained by the fact that the appellant was a former resident of the unit;
3. the forensic evidence did not support the magistrate's finding that the fingerprints were deposited in the process of gaining entry to the unit through the bathroom window;
4. the evidence that the appellant was present at the unit complex on the day of the incident was limited and there was no evidence that the appellant was seen to enter or exit the unit or that he acted suspiciously on the day; and
5. the appellant gave evidence in his own defence and his evidence raised a reasonable doubt as to his guilt.
[2]
The Evidence
The appellant was a former flatmate of Abdulrahman Al-Masri (the complainant) in the period 2018-2019. The men resided first in unit 18B of a unit complex in Greenacre, before moving into unit 18C of the same complex in early 2019 (the unit). The appellant moved out of the unit on about 10 July 2019.
On 11 October 2019, while the complainant was at work, the unit was broken into and some cash belonging to the complainant was stolen. The complainant operated a barbershop in Punchbowl and kept the cash takings from the business at the unit under his bed. On that day, the complainant told the police that $20,000 had been stolen. On 4 November 2019 in a statement to the police, the complainant stated that $60,000 had been stolen, and this was the amount particularised in the charge. In court, the complainant gave evidence that $65,000 had been stolen. The complainant gave evidence that he had counted the money twice shortly before the break in.
When the complainant returned home, he found the front door open. When he investigated, the bathroom window was open and some items stored on either the windowsill or the bathroom sink were knocked onto the floor. There was evidence that the bathroom window mechanism was broken, but it was unclear if it was broken as a means to gain entry into the unit, or it of was already broken. The complainant gave evidence that he had left the windows secured and the door locked when he left for work. The complainant's evidence was that he rarely had visitors to the unit.
The complainant gave evidence that he cleaned the bathroom windowsill every one to two weeks and had done so in the period after the appellant ceased to reside at the unit. He did so with soap and a sponge to remove a black powder that he used to dye his hair.
Two fingerprints belonging to the appellant were located on the windowsill in the bathroom and marked F1 and F2 respectively. The forensic evidence could not determine the age of the fingerprints located on the windowsill.
The crime scene officer also conducted a tape lift from the mattress that was moved to gain access to the money. No traces of DNA were recovered from the tape lift that implicated the appellant.
The appellant was seen by a neighbour, Amin Nysf, at the unit complex on 11 October 2019. Mr Nysf's evidence was that he knew the complainant and the appellant as his neighbours in 2019. The appellant gave Mr Nysf a kitten that he did not want and he came to visit the kitten from time to time. In October 2019 Mr Nysf was visited by the police to ask him if he had seen anything relevant to the break in. Mr Nysf told the police that he had seen the appellant and a woman named Houda, who was a resident in unit 10 at the unit complex. They came over to his unit, spoke to him and patted the kitten. Mr Nysf gave evidence that he had lent Houda $2,000 in the past and that she repaid him the sum of $500 on that day. Mr Nysf thought that he "most probably" saw them after work on that day, which would have been about 3.30pm. A few days later, Mr Nysf saw Houda driving a vehicle that he had not seen her in before. Mr Nysf was aware that Houda did not own a vehicle and he had lent her his vehicle on occasions. In cross-examination, Mr Nysf did not accept that he told the police in his statement that he received the money from Houda two days later and that he saw her driving the different vehicle a few days after that. He accepted that he did not see the appellant entering or leaving the complainant's unit. Mr Nysf accepted that the complainant had visitors to his unit from time to time.
Immediately after the theft but before the fingerprint evidence was available, the complainant challenged the appellant over it. The appellant came to the unit with other men, including the appellant's brother, to discuss the issue. The appellant denied being responsible for the theft and swore an oath on the Quran to that effect, in the complainant's presence.
The appellant gave evidence that while he lived at the unit, he opened and closed the bathroom window daily, particularly when the washing machine was in use. Both men stored toiletries on the windowsill. The appellant gave evidence that the complainant invited visitors to the unit on a daily basis while he resided there. After he left, the appellant returned to the unit complex every two to three days, to see friends, including Houda. The appellant gave evidence that he was at the unit complex at about 10.30am on 11 October 2019 for about 30 minutes before driving to Punchbowl and then to Bargo to see a friend. At the unit complex he drank tea with a person name Osman. His original intention was to meet Houda to help her "move out some belongings". He also saw Mr Nysf at the front of his unit and he talked to him and patted the cat. He then went to Punchbowl to have breakfast and then drove to Bargo. He returned to the unit complex about 9pm that night. In cross-examination, the appellant agreed that he went to the unit complex to assist Houda to move furniture and that she had asked him to come about two days earlier. His evidence was that he did not help her to move on that day because she did not answer the door when he knocked. A neighbour told him that Houda was still asleep. He spoke to Mr Nysf and then left. The appellant's evidence was that he tried to call Houda but she did not answer her phone. The appellant did not accept that he spoke to Mr Nysf at about 3.30pm or that he knew that the complainant kept a large sum of money in his unit. The appellant could not provide the full name of the person he visited in Bargo or provide the address of the rural property that he lived at. The appellant could not recall Houda driving a new vehicle but said that she borrowed a number of different vehicles at the relevant time. He denied the offence and that he gave any money to Houda from it.
No statement was taken from Houda and she was not called as a witness.
None of the money allegedly stolen was recovered by the police.
[3]
The Relevant Law
The applicable principles to be applied in determination of the appeal are as follows.
[4]
Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001
Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
Section 20 Crimes (Appeal and Review) Act 2001 provides that the District Court may dispose of an appeal against conviction by setting aside the conviction or dismissing the appeal. There is no power to remit the matter to the Local Court.
[5]
Analysis of the Magistrate's Reasons
The magistrate reserved his judgment. He delivered oral reasons a few days after the evidence was completed. The magistrate noted that it was a circumstantial case and gave himself the appropriate directions on that issue.
The magistrate found that the complainant gave differing accounts of the amount of money that was stolen from him on the basis of "tax concerns that he had".
The magistrate made the following findings based on the evidence:
1. The bathroom window was forced open and that was the point of entry into the unit.
2. The bathroom window was about 1800mm off the ground, but there was a stool depicted in the vicinity in some photographs that could have been used to gain entry to the unit through the window.
3. Notwithstanding there was no evidence on the topic, the appellant appeared to the magistrate to be in good health and to have the physical capacity and ability to climb through the bathroom window.
4. The fingerprint evidence did not permit a finding as to which direction the fingerprints were deposited; that is, if the person depositing them was inside or outside of the unit when they were deposited. However, one of the fingerprints was located on the underside of the windowsill, which was consistent with a person entering through the window from the outside.
5. The uncontested evidence of the complainant was that he fastidiously cleaned the windowsill around 14 or 15 times since the appellant ceased residing at the unit and this excluded the reasonable possibility that the fingerprints were deposited on the windowsill when the appellant resided at the unit.
6. The complainant's cash was easily locatable.
7. The coincidence that the appellant was present at the unit complex on the day of the offence was too incredulous for there to be a plausible explanation for the appellant..
8. The fact that Houda was driving a different car added little to the circumstances.
9. In the magistrate's experience, when an offender's fingerprints were located at a point of forced entry, the police would stop gathering evidence at that point.
10. The magistrate accepted the complainant's evidence that he nominated different sums of money because like all other Australians he did not wish to pay any more tax than was "appropriate". The magistrate considered that to be an admission against interest and as a matter indicative that the complainant was telling the truth in his evidence.
Based on those findings the magistrate found the offence proven beyond reasonable doubt.
The magistrate did not make any credit findings about the appellant based on his presentation as a witness.
Having conducted an independent review of the evidence, the magistrate erred in making a number of the findings on which he based his ultimate conclusion.
First, the finding at [26(3)] was made without evidence and without affording procedural fairness to the appellant. It is well settled that factual findings made on the basis of observations made in court must be raised with an accused to give them the opportunity to submit on those findings: Gardiner v R [2023] NSWCCA 89 at [137] (Adamson JA: Button and McNaughton JJ agreeing).
Second, the evidence relating to the finding at [26(5)] was misstated. The fastidious cleaning regime of the complainant was challenged in cross-examination. At first, questions relating to this topic were rejected by the magistrate as being "irrelevant". The solicitor for the appellant returned to the topic and his questions were again rejected. A few largely ineffective questions were put. In the context of those incorrect rulings, it is understandable that the evidence was not challenged as effectively as it might have been, but it was the subject of some challenge. Having considered the forensic photographs, I am not satisfied that the complainant was such a fastidious cleaner. The photographs depict a number of areas of grease and grime build up indicated by the adherence of the fingerprint dust to otherwise smooth surfaces and this objective evidence undermines the complainant's evidence on this point.
Third, I do not accept that the appellant's explanation for being at the unit complex on 11 October 2019 was so incredulous that it was a lie. The appellant gave unchallenged evidence that he was at the unit complex every two to three days to see friends, including Houda. The appellant's evidence was supported by Mr Nysf who saw him with Houda on the relevant day. There was a dispute as to the time when the appellant was seen by Mr Nysf and a fair reading of his evidence is that he was not sure about that timing. It is reasonably possible that the appellant was mistaken as to the day when he could not find Houda at her unit and Mr Nysf's evidence was correct.
Fourth, for the same reasons expressed at [29] above, the magistrate was not entitled to make a finding based on his experience of what the police forensic officers may or may not do in any given case and the finding at [26(9)] was not open to be made or used to explain the forensic evidence. In this case, there was an added problem with this finding because the crime scene officer was unavailable to make a statement or to give evidence in the case. The magistrate did not afford procedural fairness to the appellant by explaining that he would make a finding based on his experience and, in the absence of evidence in the case, the appellant was unable to make relevant submissions on that issue.
Finally, the finding that the complainant was a truthful witness based on his prior inconsistent statements about the amount of money stolen from him was problematic in a number of material respects, including:
1. The complainant did not accept in his evidence that he had made a prior inconsistent statement as to the amount of money stolen from him. The magistrate's finding was based on an acceptance that the complainant had made prior inconsistent statements to the police. The magistrate's finding that he did make prior inconsistent statements, contrary to his evidence, was not factored into the magistrate's analysis of the reliability of his evidence.
2. The complainant's evidence was that if he did tell the police that $20,000 was stolen (which he did not accept), he was probably afraid that the police would inquire about why tax had not been paid on the rest of the money. Later, his evidence was that he was saving the money so that he could pay tax on it later on. Mr Nysf gave evidence that the complainant initially did not want to tell the police about the break in because he did not want the Australian Taxation Office to get involved.
3. The complainant did not give evidence that he was keeping his money under the bed so that he would only pay an amount of tax that was "no more than appropriate". That suggestion first appeared in the judgment. The reality was that the complainant was keeping his money under the bed to avoid paying tax or at least to avoid paying the correct amount of tax. His intentions in that regard were dishonest and the magistrate failed to take that into account in assessing the reliability of his evidence.
4. The magistrate's finding was not based on demeanour or any advantage gained from seeing the complainant give evidence. I am satisfied that the finding was not properly based on the evidence and should be put to one side.
The magistrate erred in making findings of fact that informed his conclusion that the circumstantial case was proved to the criminal standard. In those circumstances, I must consider the evidence for myself.
[6]
Consideration
Having conducted an independent review of the evidence, I am not satisfied beyond reasonable doubt that the prosecution has proven the offence for the following reasons in combination.
For the reasons expressed, the complainant's credit was seriously impugned. He made a series of prior inconsistent statements about the amount of money stolen and had dishonest reasons for hiding his money under the bed. I do not accept the complainant's evidence that he was saving the money to pay tax later because it is an affront to common sense. For the reasons given, I do not accept the evidence that the complainant was a fastidious cleaner. If the complainant's evidence that he had counted the money twice immediately before the break in was true, he would not have made the prior inconsistent statements. I am left with some doubt as to whether there was a break in at all.
The fact that the appellant lived at the unit for a number of months is an explanation for the presence of the appellant's fingerprints on the bathroom windowsill which is consistent with his innocence. Whilst it is open to infer that the position of the appellant's fingerprints was consistent with him gaining entry to the unit from the outside of the bathroom window, I would not draw that inference because there was no evidence as to the direction in which they were deposited, it was not possible to tell the age of the fingerprints and it is significant that no other fingerprints were located. Overall, I think it is much more likely that the fingerprints were deposited while the appellant was a resident of the unit.
Mr Nysf's evidence is to some extent consistent with the appellant's evidence that he had a reason to be present at the unit complex. Mr Nysf's evidence was that he saw the appellant in the company of Houda on the relevant day, and in my view that tended to undermine the prosecution case. The evidence established that the appellant was at the unit complex regularly after he ceased residing there and this limited the significance of his presence on the day of the alleged break in.
The evidence indicated that Houda borrowed vehicles from different people and in those circumstances Mr Nysf's observation was irrelevant to the circumstantial case.
It is reasonably possible that the appellant was confused or mistaken as to the events of the day when he was seen by Mr Nysf. The appellant was firm in his denials. There were elements of the appellant's evidence that were unusual and somewhat unsatisfactory. However, even if I rejected the appellant's evidence in its entirety, which I do not accept is the correct course in this case, I am not satisfied beyond reasonable doubt of his guilt on the evidence in the prosecution case.
Whilst there was some evidence that supported a finding of guilt, in the end those matters did not rise above suspicion, and I am not actually persuaded to the criminal standard of the appellant's guilt.
[7]
Orders
The orders I make are as follows:
1. The appeal against conviction is allowed.
2. I set aside the conviction and the penalty imposed by the magistrate.
[8]
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Decision last updated: 14 August 2023