Merza v R

The Director's submissions

1. The Director submitted that the victim's evidence was not contradicted by Mr Chlab, arguing that while Mr Chlab initially said that when he first saw the victim, he had fallen down just inside the blue doors of the unit complex, he later said that when he first saw the victim he was standing, and that he fell down after he was bleeding. While Mr Chlab agreed that he did not see the victim walk out of the blue doors, the Director contended that it was plain Mr Chlab's attention was focussed forwards in the direction of the three men and not behind him on what, if anything, the victim was doing.
2. As the victim described having seen the knife thrown (which was supported by Mr Chlab) the victim must have been in a position to see it, as otherwise he would not have known that this event occurred. Mr Chlab gave evidence that he had never spoken to the victim about what he recalled seeing that evening and the throwing of a knife was not mentioned in the 000 call. In reply to the applicant's argument that there could have been a discussion between Mr Chlab and Mr Hadani in the presence of the victim that evening, the Director said there was no evidence about that at all.
3. While the victim initially said he took the piece of wood off Mr Chlab, the Director pointed out that he later accepted he may have been mistaken about that detail. The Crown contended that even if the applicant was mistaken, it was well open to the jury to conclude that such a mistake did not undermine the reliability of his identification.
4. As to the identification procedure, the full recording of which was played to the jury (Exhibit N), the Director submitted it was plain that the victim undertook the task with the seriousness it deserved and in a considered manner.
5. The Director contended that proof beyond reasonable doubt did not depend "solely, or even exclusively or in large part, on the identification made by the victim". [16]
6. Another significant matter the Director submitted supported the victim's identification of the applicant was his evidence that as he was running, he saw the black BMW come up Wilga Street, turn right into Fairlight Avenue and stop quickly at the corner. The Director referred to the applicant's identification during the computer identification procedure of the applicant as the person in the front passenger seat of the BMW being corroborated by other evidence and being demonstrative of the reliability of his recollection, notwithstanding the seriousness of his injuries.
7. The Director submitted that it was not in dispute that, just before the stabbing, the applicant was in the front passenger seat of the BMW when it pulled up directly outside the unit complex where the attack took place. The Director referred to the short distance from the railway station to the unit complex (Exhibit 2) and the police officer's evidence that the distance was 205 metres. [17] The Director submitted that it was not in dispute that the applicant had come from the railway station where there had been an altercation between the victim and the group which was led, on the prosecution case, by the applicant. Further reference was made to Mr Pottress' evidence of being told to smash the victim.
8. The Director contended the applicant's evidence that he merely wished Mr Pottress to stop the victim was inconsistent not only with Mr Pottress' evidence but with the way the applicant was seen to behave on the CCTV footage. It was the prosecution case that having asked Mr Pottress to chase after the victim, the applicant left the railway station in the BMW and went immediately to the scene. All of these matters, the Director submitted, supported the victim's identification of the applicant.
9. As to the applicant's submission that the BMW had left the scene when the purported identification was made, the Director referred to there being no dispute that the BMW was seen on Dale Street (an extension of Wilga Street) at 11:10:49pm and had earlier been seen to leave the railway station, turn right into Wilga Street and drive in the direction of the unit complex at 11:08:35pm. The Director contended that the victim's evidence was consistent with the attack having occurred quickly and it was a matter of common sense that those responsible departed quickly. The Director argued that even if the applicant was in the BMW as it passed the railway station at 11:10:49pm, the timing of events was not inconsistent with the applicant's involvement.
10. The Director submitted that it was of no moment that no witness saw anyone run to the BMW before leaving the scene. The Director referred to the evidence of the victim and Mr Chlab that they could not see the street from where they were near the blue doors. Photographs of the area (Exhibits A and AD), the Crown said, supported the conclusion that the intersection of Wilga Street and Fairlight Avenue was not visible from that location.
11. Another matter that was said to support the identification of the applicant was the CCTV footage from the railway station that showed the applicant wearing a black scarf with tassels found at Marker A at the unit complex. The Director referred to Mr Chlab's evidence that one of the three males had been using the item as a mask.
12. The Director submitted that the evidence of motive for the stabbing (the altercation at McDonald's) and the close relationship between the applicant and Mr Hanna was another factor that supported the identification of the applicant.
13. For the purpose of considering ground 2, it is necessary to consider the evidence in some detail.

The applicant's trial

1. The applicant's trial before a jury lasted 19 days from 23 September 2019 to 17 October 2019. After deliberating for four and a half hours, the jury returned a verdict of not guilty to the first count and verdicts of guilty to the second and third counts.

Prosecution case at trial

1. The prosecution case was that the applicant was one of three persons present in the stairwell of a Wilga Street unit complex when the victim was stabbed nine times between 11:08:39pm and 11:12:02pm on 7 August 2016. Each of those persons was a party to a joint criminal enterprise to stab the victim intending to kill him or cause him grievous bodily harm. The prosecution contended the stabbing was motivated by an altercation that occurred involving the victim, Mr Hanna and others at Fairfield McDonald's on 5 August 2016. During the altercation the victim punched Mr Hanna causing him to sustain a black eye. The victim gave evidence that he did so in self-defence.
2. It was not in dispute that the altercation occurred and that Mr Hanna was a close friend of the applicant.
3. The paragraphs that follow set out in summary form evidence adduced in the trial. The Court has not summarised all of the evidence but has considered all of the evidence in determining the grounds of appeal.

A summary of the victim's evidence

1. On 5 August 2016, the victim was at McDonald's with his friends, DM and DA. While waiting in the drive-through to order food, a red Camry with a driver and one passenger stopped next to the car the victim and his friends were in. The red Camry "started up" and one of the people in the car said to the victim, "what are you looking at you dog". DM replied to the person by saying words to the effect of "relax". [18]
2. The victim and his friends parked their car to eat. The men in the red Camry also parked and waved to the victim to come their way. The victim obliged by walking over to their car. The men got out of their car, ran towards the victim and a fight started. The victim punched the driver of the red Camry and got into a scuffle with the passenger during the physical altercation.
3. The victim gave evidence that on 7 August 2016, he was at Fairfield with his friends, DA, Ajaz and Junior. He later agreed that his friend TL was also present. While he was on the police station side across the road from the railway station, the victim noticed a red Camry driving around with people he had seen at McDonald's. The occupants of the red Camry told him to go down to the bridge. The victim believed that they wanted to fight him, so he did not go.
4. The red Camry then left the station and a BMW arrived with three people in it. The three people approached the victim and his friends who were standing near the elevator on platform 2 of the railway station. The victim and his friends jumped on the train tracks when they saw one of them was holding a knife.
5. The men spoke to the victim's friend, Junior. They asked Junior what nationality he was and he said "Samoan". They told him to stay on the side as "they don't want him". They then asked the victim's other friend what his nationality was and he said "Afghani". Finally, they asked the victim, and he said, "Iraqi". They said "No, you" and tried to "rush" him, which the victim explained as trying to hit him. The victim jumped back on the train tracks. [19]
6. The victim ran a few metres, jumped a fence to the other side of the railway station onto the police station side, and ran around the police station to a tunnel or alleyway under the tracks. He began walking to his friend, Mohammad Chlab's, house. He could not recall which street it was on.
7. The victim gave evidence that as he was running, he saw the BMW. The victim said the occupants of the car saw him running, parked the car and got out. He saw the men in the front passenger seat and in the back seat get out of the BMW and start chasing him. The driver then stopped the car and the victim, looking back, saw the driver running with them as well.
8. The victim reached his friend's unit door and discovered it was locked. The unit was just inside the complex and to the right, and up three stairs. The victim was shown eight photographs of premises at Wilga Street. He identified them as photos of the area where Mr Chlab's unit was.
9. The next thing the victim remembered was being stabbed in the back. He said the group of men caught up to him, dragged him down three steps and then under the stairs. He said he saw who stabbed him in the back, but he could not remember where they had been sitting in the car. All three of the men that got out of the BMW were involved in the altercation with him. They stabbed him and punched him in the face. The victim used his forearms to cover his face.
10. Mr Chlab came out of his unit with a big stick and hit one of the men and they ran away. Mr Chlab and the victim began to chase the men. The victim said, "We started chasing them…when I got stabbed…I didn't fall like on the ground. So I was with him 'cause like I just chased them as well," [20] indicating that they chased them to just in front of the blue door. The three men then came back again and one of them threw a knife at the victim. The victim and Mr Chlab went inside the unit.
11. The victim said he had collapsed on the floor inside Mr Chlab's unit and told his friend to call the police. The victim said he did not speak to the 000 operator. The only thing he recalled after that was an ambulance arriving and asking him which hospital he wanted to go to, Westmead or Liverpool. The victim chose to go to Liverpool Hospital for treatment. He remained for over a week in hospital.
12. The victim said that one of the two men who were originally in the red Camry at the railway station was one of the three men in the BMW and was also one of the men he saw at the unit when he was stabbed. The victim said that this was the man punched at McDonald's, who was at the railway station on 7 August 2016, talking on the phone and sitting in the passenger seat of the red Camry as it drove around.
13. After he had been released from hospital, the victim was approached by a man he did not know while standing near a fruit shop at the railway station. The man asked him for a lighter. The man said to the victim words to the effect of, "we'll give you money for just to drop, like drop the charge, like what happened that - for stabbing, like for when you were stabbed". [21] He was told that he would be given a new car, which he understood to be a 2015 model, and money, but he could not recall the amount offered. The victim told the man, "I'll think about it". He never saw that man again. He later attended the police station and informed Detective Senior Constable Alex Guy of the encounter. The victim agreed, having refreshed his memory from a statement he made on 16 November 2016, that the incident occurred on 14 October 2016 and that he told police that he had been offered $20,000 and a car.
14. Portions of a transcript of intercepted telephone calls between the applicant and his associates in October 2016, which were played to the jury, are quoted at [12]-[14] above.
15. The victim gave evidence that he attended the police station on 6 September 2016 and participated in a photo identification ("ID") parade. The jury watched a recording of a portion of the interview and ID parade. While giving evidence, the victim agreed that the second photograph he selected, photograph four, was the man that had been at McDonald's, was in the red Camry, and was in the BMW. This person was Martin Hanna.
16. On the night of the stabbing, it was dark in the area that the incident occurred. Despite the dark, the victim said he was able to pick out two men in the ID parade. The victim was shown three sets of photos in the ID parade. From the second group of photos, the victim identified the photo of the applicant. From the third group of photos, the victim identified the photo of Mr Hanna. He said: "A. The first one, the second one are big. The second one on the video. He was, he was at McDonald's, driving through, the one driving the red Camry. I remember like, I remember him like, that's, that's the first, incident like that's what happened, from there like. And the second one, from the station. I remember him from the station. That's when they came, and he was like, he like, he was up to me, like. He's like, "You're here my brothers", and like, ..(not transcribable).. like, "Kill my brothers," start swearing. Q. What do you remember him saying? A. He said that he like, he hit ..(not transcribable).. he's saying that I hit his brother, like he, like, he got the knife, pointing at me, saying that, "Hit my brother, you're motherfuckers." Q. That's the, in the video that we just watched? A. Number 1, number 1, the big, number 1. The one, like, I still remember he got piercing on his, on his face. Q. So that's the first one that we saw you pick out? A. First one. Q. In that video we just watched? A. Yes. Q. Did you see that man at the unit block as well? A. Yes Q. At what point at the unit block do you remember seeing him? A. I seen him, I seen him like, like, see photograph, photograph number, number 2. After they stabbed me, they, they, they came out. Like, my friend came out, and he hit one of them, and they run out. They went like, they run off. And then we chased them, like, in front of the, front of the blue door. That's, that's when I seen him in the light." [22]
17. He was also shown 27 photographs of the railway station on 7 August 2016.
18. In cross-examination, the victim confirmed that the passenger originally in the red Camry at the railway station also sat in the back of the BMW. This was the same man that was the driver of the red Camry on 5 August 2016 and whom he punched at McDonald's. Additionally, the passenger of the red Camry at McDonald's became the driver of the red Camry at the railway station on 7 August 2016.
19. The victim agreed that it was dark under the stairwell but said it was "not really dark". [23] He agreed that because of the dark and covering his face, he could not see the three men under the stairs.
20. The victim said that Roni Pottress was not there during the incident at the unit. He said that Mr Pottress chased him and he ran as fast as he could from the moment he started on the train tracks until he reached Mr Chlab's front door. It was there that he was stopped by the three men. He agreed he did not see if Mr Pottress came to the door or the stairwell because it was dark.
21. The victim agreed that he was very stressed and very tired from running and being chased by Mr Pottress. He confirmed that he did not know he had been stabbed until after they had left, adding, "After I chased them, like, a little up front of the [blue] door, and then they chucked the knife at me they came back, I went back inside and that's when he locked the door and I fell, like on the ground, on the rug, yeah". [24] He accepted that he did not see people stabbing him with a knife at any time under the stairs and he thought that he was just being hit.
22. The victim gave evidence that the driver of the red Camry was the one that yelled out to him to come under the bridge. He later gave evidence that this was the same man who was in the passenger seat at McDonald's on 5 August 2016. He did not accept that he told the police the passenger yelled out to him; he told the police the passenger was on the phone and the driver yelled to him. He understood the purpose of telling him to go under the bridge was to start a fight. The red Camry was the same one from McDonald's. He agreed that at least one of the people in the red Camry on the night of 7 August 2016 was also one of the people he had a fight with at McDonald's.
23. On 7 August 2016, he was walking around with his friends before arriving at the railway station to go to Cabramatta with his friends. He saw the red Camry on the police station side of the railway station when it drove past him and his friends as they were walking. The victim was not present, but agreed he knew that DA talked to the person in the red Camry before they arrived at the railway station. It was put to him that a telephone call was made by one of his group for the purpose of buying weed from one of the occupants of the red Camry. The victim said he did not know. It was put to him that he was asked in his police interview if he was at the railway station to buy cannabis and he responded, "Yeah, not me, the boys". He accepted that he may have said that but stated, "but I wasn't there, I was there, I say I was there, but I wasn't there". [25]
24. The victim said he was not aware that there had been an arrangement to buy weed on the night of the incident. It was put to him that he was aware that on 7 August 2016 the occupants of the red Camry were selling one stick of weed for $20. He said he did not know that and stated he was not there. It was put to him that after he saw the red Camry on Level 7 of the carpark at Fairfield Library, it began to drive laps around him and his friends, drove off, then came back, and that is when it occurred to him that they were following him. He accepted this and that this occurred before he went to the railway station.
25. He said he did not speak to the 000 operator on the night of the incident.
26. The victim agreed his evidence was that there were three people who assaulted and stabbed him in the stairwell. He agreed he had told police there were five people. He said there were three in the stairwell stabbing him under the stairs, while there were two outside on the road standing next to the red Camry. He agreed it would be wrong to say five people were stabbing him. He said he could not recall telling police that he was stabbed by five people; three from the BMW and two from the red Camry. He recalled seeing his friend, Mr Chlab, come out near the blue door with a large piece of wood which he swung at them. His evidence was that the three ran outside and two were on the road. The victim did not agree that he told police on multiple occasions in the interview conducted on 17 August 2016 that there were five people stabbing him.
27. He confirmed that the first time he saw the BMW was at the railway station in the carpark. After that, when he was running down Fairlight Avenue, he saw the BMW come up Wilga Street from the direction of the station and turn right into Fairlight Avenue where it stopped quickly on the corner. It was as he crossed Wilga Street that the men jumped out of the BMW and he looked around and saw three of the men chasing him. He was near his friend's unit but far from the blue door entrance. He sprinted downhill to his friend's unit, along a little garden path, and turned right into the stairwell.
28. He agreed that he said the three men reached him when he was at his friend's door and they dragged him down the stairs and assaulted him at the spot he circled on photograph four. It was not outside.
29. He agreed that if he was standing outside his friend's door at the blue entrance as depicted in photograph two, he would not be able to see the red Camry parked on Wilga Street as there was a building in front of the view. He agreed that when he was being stabbed in the stairwell, he could not explain where the two men who had been standing near the red Camry were as he could not see the street from that location.
30. He agreed he told the police the assailants chucked one knife at him only. He agreed he also told police the men who stopped him in the stairwell and front door area were all holding knives. He then agreed that he did not see anyone holding knives while under the stairwell and commented that it was dark. He said when he went outside the blue door, "that's when I seen".
31. He maintained that Mr Chlab came out of the flat with a piece of timber. He said that he took the piece of timber off Mr Chlab when he went through the blue door after he had been stabbed. He later accepted that he may have been mistaken about whether he took the piece of timber.
32. It was put to him that there were no knives at the railway station. The victim said that there were, but he had not mentioned this to the police. He said that if there had not been knives, he would not have jumped on the train tracks. He said three of the men were holding knives and said that one of them held the knife with his arm outstretched. The man said to him, "they're my brothers, mother fuckers". [26] He could not recall what the other two were doing with their knives as it was three years ago, at the time of giving evidence.
33. The victim agreed that the first photograph he had chosen during the ID parade was photograph nine (a photograph of the applicant). He agreed that he said the following to the police: "This one. At the station, yeah, I seen his face at the station." [27]
34. He then gave evidence: "I picked him; you know why I picked number 9. I looked - I didn't, like, - like I didn't pick him at the first place. Like I looked, I looked at all the photos and then I came back to him. I was thinking and I said I don't want to choose anyone of these photos, like someone wasn't there, you know what I mean, so I was thinking, because I don't want to choose someone that wasn't there". [28]
35. The recording of the ID parade was played in the court and paused at different intervals for questioning. In the video, the victim said photographs three and four in the first group of photos shown to him, "50% looks like" the man sitting in the passenger seat during the McDonald's incident.
36. The victim agreed that, during the video while viewing the second set of photos, he paused for 20 seconds to look at photograph nine. He continued to look at other photos and then returned to photograph nine. He looked at it for some time and then said, "this one … at the station, yeah, I seen his face at the station". [29] He agreed he then said, "when I went at the unit, no, he was - he is covered his face. I seen his face at the station, me, Junior, everyone." [30] It was suggested to the victim that he selected photograph nine because he recognised him as someone he had seen at the railway station. The victim responded, "Yeah, and then - and outside the unit, outside the blue, where the blue door." [31]
37. When the police asked the victim what the person in photograph nine did, he responded, "Well, he's the boss of them, first he was shouting, saying fucking this and that at the station". [32] The victim gave evidence that he also recognised this man from the unit. He agreed that up until this point in the ID parade, everything he had said about photograph nine involved recognition of the man from the railway station.
38. The victim agreed that it was the police that introduced the question of whether he had seen the person in photograph nine at the Wilga Street unit. He agreed that he did not say he had seen him at Wilga Street before the officer introduced it, and said he did not know the name of the street. In response to further suggestion that it was only after the officer asked whether the person he had selected stabbed him that he answered yes, the victim said, "Yeah. But I remember his face. Like, I never forget his face…or my blood". [33]
39. He agreed that his evidence was that it was dark in the stairwell and he could not see the faces of who was stabbing him, but he saw a man when he was standing outside the blue door swinging the piece of wood given to him by Mr Chlab. [34]
40. The victim was asked about another group of photos shown to him in the ID parade. He agreed that he looked at photograph four for some time and then pointed at it saying, "this guy, was that one there" while pointing at the photo from the previous selection. He said that what he was saying was "his brother". [35] He agreed he pointed at photograph four and said, "I was confused. That's him". [36] He agreed he then pointed at photograph nine and said, "Not that one" and pointing at photograph four said, "this one … I swear, this one". [37] Photograph four was an image of Martin Hanna. Photograph nine was an image of the applicant.
41. He was then asked by the police where he saw the person in photograph four and he responded: "That's the one who was wearing the white hat and hoodies and he was running after me. Then I jumped on the track, then he went back to Junior and he was talking to Junior. I went back and he asked me 'what's your background, what's your nationality'. I said, 'Iraqi', he started chasing me, and I went back to jump on the track, yeah, this guy, 100% this guy." [38]
42. He agreed that when asked by the police if he saw the person in photograph four when he was stabbed, he said, "yeah, this one when I went to the unit. He was after me, and the others were after him. He was the first guy, yeah, 100%." [39] He agreed that in the video he pointed at photograph nine and said, "no, no, he wasn't there, not this guy. I seen on Fairfield", and then "it was this guy" pointing at photograph four. [40] The victim referred to the person in photograph nine as being the brother of the person in photograph four because this person said to them at the station, "you're hurting my brother, you motherfuckers". [41] The victim gave evidence that the man in photograph four was the same man driving the red Camry at McDonald's and who the victim punched on that night. The victim gave evidence that the man in photograph nine was the front seat passenger in the red Camry and was in the BMW at the railway station. He said the man in photograph nine was not at McDonald's.
43. It was put to him that he remembered the man in photograph nine from the railway station and the BMW because there was light in those areas. The victim said, "Yes, and I see it in, after I got stabbed, and, like, walked out of the blue door, and I seen, that's why I said that's true." [42] It was put to him that he may have confused the man he saw at the railway station and in the BMW with someone he saw later; the victim responded, "yeah". [43]
44. The victim gave evidence that, during the month before the ID parade, he was sick and was seeing a psychologist and psychiatrist. He could not sleep and was taking medication. He would get angry whenever he saw a photo of himself. He was having bad dreams and did not leave the house. The victim agreed that due to his condition there was some confusion during the ID parade. [44] He started seeing the psychologist about two months after the incident on 7 August 2016.

A summary of Mohammad (Ahmed) Chlab's evidence

1. Mr Chlab lived at Wilga Street, Fairfield in August 2016. On 7 August 2016 between 10:00pm and 11:00pm, he heard someone screaming his name while he was in the kitchen. Mr Chlab went outside the unit with a large stick and saw some young men. It was dark outside but he thought he saw three men, other than the victim. The men ran away when he came out of the unit. Mr Chlab did not see any physical interaction between the victim and the three men.
2. He said that the men's clothes looked black and it was dark. He saw the tallest of the three men with a long knife which was pointed at him. This knife was thrown at him. This happened immediately after he came out of the unit.
3. He said that one of the men was wearing "something, a mask on his face". [45] Mr Chlab said that this was something which was normally placed on the shoulders. This man, who was not the man who had thrown the knife at him, fell over. He did not see where the men went after one of them fell over.
4. When Mr Chlab first saw the victim he had fallen down; the victim did not say anything to him. He helped the victim stand up, went inside the unit and then called the police (after the men had run away). He saw blood and noticed that the victim was bleeding very heavily. While attending to the victim, Mr Chlab gave the phone to his friend, Ibrahim Hadani, to speak to the police. Mr Hadani came to be at the unit because he had called the victim's phone which Mr Chlab answered and asked him to come and help.
5. Leave was granted to the prosecutor to cross-examine Mr Chlab pursuant to s 38 of the Evidence Act 1995 (NSW). Mr Chlab was taken to his police statement made on 8 August 2016 where he said that when he first heard the victim screaming, he looked out his window and saw three people hitting a fourth. Mr Chlab said it was very dark and he did not recall saying that to the police. He accepted he might have said that on 8 August 2016.
6. In cross-examination, Mr Chlab agreed his evidence was that he came out of the unit with a piece of wood, went down the three stairs to the blue door and saw the victim lying down. The victim was wounded and moaning. Mr Chlab stood and stared at the people in front of the blue doorway. He agreed that when he came outside his unit and stood at the doorway of the blue doors, the victim was lying behind him on the ground.
7. He said the men then fled towards Wilga Street, he went to his unit with the piece of wood in his hand, threw the piece of wood, and went back to the victim who was still on the ground. He initially said he left the door to his unit open but later said that he shut the door because he was terrified before returning to the victim. He said there was "less than a minute" [46] between when he passed the victim to go to his unit and when he returned to assist him. He said he helped the victim to his feet and took him to the unit, put him on the floor and tried to dress his wound. He said he was with him on the floor until the police and ambulance arrived.
8. While he was on the floor with the victim, the victim received a call. Mr Chlab answered it and it was his friend, Mr Hadani. Mr Hadani arrived at the unit before the ambulance and police. Mr Hadani spoke to the police on the phone.
9. Mr Chlab initially said that after taking the victim into his unit he remained with him until the police arrived, but later said that he went outside to find Mr Hadani who did not know the location of the unit. He said he did not mention this in his previous evidence as he had not understood the question.
10. Mr Chlab gave evidence that he first saw the victim standing, before he fell down to the ground. Mr Chlab also gave evidence that he did not see the victim walk out of the blue door and never gave the victim the piece of wood he was holding.
11. He agreed that looking out from his kitchen window he would not be able to see the tiled area behind the blue door leading up to the three stairs.
12. The police did not ask him to participate in a photo identification exercise because he said it was very dark that night and he could not see any faces; covered or not.
13. In re-examination, Mr Chlab said it was before he brought the victim into his unit that he locked the door to it.

A summary of Ibrahim Hadani's evidence

1. Ibrahim Hadani was outside his shop, Ibrahim's Fruit and Grocery Market, on The Crescent in Fairfield on 7 August 2016. Around 10:00pm, he saw the victim running in the direction of the carpark of the railway station and in the opposite direction from the tunnel with someone chasing him. Mr Hadani initially said he did not know who the other person was but later said it was Roni Pottress shouting and chasing him. He heard Mr Pottress say something but he could not understand what he said. There were no other men nearby and he did not hear anyone call out to Mr Pottress. He then returned back to his shop.
2. Mr Hadani gave evidence that a few minutes later he received a call from "another Ahmed" (a reference to Mr Chlab) telling him that the victim had been stabbed and asking him to come and help. He went to the unit at Wilga Street and spoke to the police at some stage on the phone. He agreed it was his voice the jury heard saying, "[Roni, Roni,] he has the blue, have blue, the blue, blue jeans, blue" [47] but he did not recall saying that. He met Mr Chlab outside the unit as he did not know the exact number.
3. Mr Hadani gave evidence that when he arrived at the unit, he came from the tunnel and he saw Mr Pottress outside on the other side of the tunnel but Mr Pottress did not see him. When asked if Mr Pottress was close by the unit, Mr Hadani said he was not. When he saw the victim, he was shocked and went out and saw Mr Pottress outside. Mr Pottress saw him and ran. Mr Hadani thought that Mr Pottress ran away with other people that he did not know. He told the 000 operator then that the person with the knife was Mr Pottress. He was not sure about that while giving evidence but said that if he had not seen the knife in his hand, he said he would not have said that.
4. Leave was granted to the prosecutor to cross-examine Mr Hadani pursuant to s 38 of the Evidence Act. Mr Hadani agreed that in his statement on 8 August 2016 he told police that he heard Mr Pottress yelling loudly towards the victim as he was chasing him. He agreed he told the police the last time he saw Mr Pottress and the victim was as they ran towards Fairfield Hotel near the passageway under the railway line. He agreed that he told police that after 10 minutes he saw Mr Pottress walking back from near Fairfield Hotel to the railway station carpark by himself. He agreed that he saw Mr Pottress twice: the first time as the victim and Mr Pottress were running; and the second time about 10 minutes later when Mr Pottress came walking back from down near the Fairfield Hotel, walking towards the railway station carpark by himself. He agreed that his memory was better at the time of the statement. He remembered, as he had told police in his statement, that he saw two men on the RSL side of the railway station calling to Mr Pottress in Assyrian, but he did not recall what was said.
5. Mr Hadani agreed that he had called the victim's phone to see what had happened to him after he saw him being chased. Mr Chlab answered that phone and asked him to come to the unit and help because the victim had been stabbed and was bleeding.
6. During cross-examination, Mr Hadani agreed that he told the 000 operator that there were eight people on the road.
7. He agreed with his police statement of 8 August 2016. He said the first time he saw Mr Pottress was outside his shop on The Crescent when Mr Pottress was running through the carpark of the railway station on The Crescent side. He knew Mr Pottress because Mr Pottress used to help him in his sweet shop sometimes. He told the police that Mr Pottress was wearing a dark blue coloured jumper and dark coloured long pants. He did not recall telling police that Mr Pottress had something on his head, but accepted that if he said it at the time then it was correct. Mr Hadani told police that it looked like Mr Pottress was chasing the victim. Mr Pottress was also yelling loudly at the victim. He recognised the victim who was a customer at his store. The victim was running and kept looking over his shoulder. He agreed his evidence was that he heard two men on the other side of the railway station calling out to Mr Pottress in Assyrian but he could not hear what they said. He could not recall what they looked like either.
8. He agreed with a summary of his evidence regarding the three times he saw Mr Pottress. He said the third occasion he saw Mr Pottress was on the phone to the police when he was asked to check if he could still see anyone. He went outside the unit and told police that Mr Pottress was still there. When asked when he saw Mr Pottress with a knife in his hands, Mr Hadani indicated that he could not recall, but then said it was on the third occasion.
9. Mr Hadani gave evidence that while he employed Mr Pottress at his former sweet shop, he had seen him hide knives and sticks in the carpark. He explained that he saw Mr Pottress hiding mostly pieces of wood, but once he saw him hiding knives. During re-examination, Mr Hadani said that he did not see Mr Pottress hide a stick or a knife from 2013 to 2016. He had not seen Mr Pottress use the knives he had hidden before 2013.

A summary of DA's evidence

1. DA gave evidence that he was at Fairfield McDonald's on 5 August 2016 with the victim and his cousin, DM. He was dropped off by his friend, Shaqi. As DA was walking to the carpark to see his cousin, he saw a red Camry come out of a driveway and park on the other side of the road. Two men got out of the car and ran towards him, the victim and his cousin, saying, "Come here, come here". [48]
2. A fight then broke out between all of them. DA recalled that the two men were beaten up and went back to their car, saying to the three of them, "We're going to get youse". [49]
3. On 7 August 2016, DA was at the railway station with the victim, Junior, Ajaz, and TL. One of them, he could not recall who, was there to buy cannabis. After the drugs were purchased, the victim and DA noticed the red Camry from McDonald's at the railway station. The car began following them as they walked to the railway station. He did not notice who was in the car and no one from the car said anything to them.
4. When they arrived at the station, two or three men in a BMW pulled up in the carpark and said to them, "come under the bridge". [50] DA gave evidence that at least two of them put hoodies on and pulled them up so their faces could not be seen. They did not go and stayed at the railway station waiting for the train. DA was challenged on this during cross-examination because originally he wrote in his statement to police that, "The red Toyota Corolla pulled up in the carpark, and said, 'Come meet us under the bridge.'" [51] DA disagreed with this statement and said the police may have written the wrong car down. He said it was the BMW that pulled up and the red Camry stayed under the bridge.
5. The same men came back again and started running at DA and his friends. He and his friends, including the victim, jumped onto the train tracks. DA did not recall the men saying anything to them or seeing anything in their hands. He did not see the victim again that night.
6. DA went to the police station. He did not go inside but waited around to make sure it was safe. He then called one of his friends who told him that the men had left. He returned to the railway station and took the train with his friends. The victim was not with them.
7. DA tried to call the victim once he went back to the railway station to catch the train with his friends, but he could not recall if someone answered or not. The victim did not answer. After he had boarded the train, he was told that the victim had been stabbed. He remembered he was told this when he had called the victim's phone.
8. DA was asked to go to the police station to participate in an ID parade. He was shown two separate sets of about 20 photographs. In the first set of photos, he selected photograph 18, being Mr Hanna. DA was shown his statement and could not remember that the man he had identified was one of the men at the railway station, but agreed he told police that. DA did not recognise anyone in the second set of photos he was shown.
9. DA was involved in another incident on 6 August 2016 which he informed the police of. At about 6:45pm, he and his friend called a drug dealer. Both went to a multi-storey carpark at around 7:00pm to buy the drugs. A red Toyota with three men arrived. When DA saw the red car, he recognised it as the same one from McDonald's the night before. He described the car as a Corolla to the police because he could not remember whether it was a Corolla or Camry, and he told the police this. Two men from McDonald's were in the car. DA immediately attempted to conceal his identity by putting his head down and pulling up his hoodie. His friend concluded the drug deal. DA looked up and the two men saw his face. The driver said, "You're the one that was in the fight last night". [52] He got out of the car. DA saw him holding something shiny which he thought was a knife. He was scared so he ran away. The driver chased him for a little bit until DA ran into a church.
10. DA agreed he had told police what happened on 7 August 2016. At about 11:00pm, he was at the railway station with his friends Ajaz, Junior, TL, and the victim. One of his friends called the drug dealer asking for one stick of weed which cost $20. The dealer said he would arrive in 15 minutes and meet them at the usual spot. DA and the victim were not present when the drugs were purchased but waited around the corner as they knew the dealer would be one of the occupants from the red Toyota at McDonald's and from the day before. The deal was concluded between the people in the car, Ajaz, Junior, and TL. He agreed that he told the police that the red Corolla was the same vehicle and inside it were the same two men that he had seen at McDonald's two days earlier. The red Toyota kept doing U-turns and coming back past them. DA agreed he was not comfortable with what was happening considering it was the same car and people from the fight and he thought he had seen one of them with a knife the night before.
11. DA agreed that he told police that, at about 11:20pm or 11:30pm, a silver black BMW pulled up in the carpark near them. He agreed the BMW came after the Toyota. There were three people in the BMW. Two of the men got out of the car, the front passenger and the driver. He was not able to see the rear passenger as he stayed in the car.

A summary of Ali Ziadi's evidence

1. Ali Ziadi lived at the unit with Mr Chlab. He was also friends with the victim.
2. Mr Ziadi dropped DA at McDonald's on 5 August 2016 and saw the victim there. He noticed a red Camry come out of the drive-through and the driver of the car signal to the victim and DA by waving his hand and saying, "fuck you, fuck you, come on". [53] The car parked outside of the drive-through area of McDonald's.
3. He saw a fight break out between the victim, DA and the men in the red Camry. He did not know the other men. He left the scene after he saw the victim get kicked in the leg and punched in the face.
4. On 7 August 2016, Mr Ziadi received a phone call from the victim in the late afternoon requesting that he collect him from Cabramatta Railway Station and drop him off in Fairfield. Mr Ziadi gave the victim a lift. He could not recall what time it was, and when asked if it was about 8:30pm or 9:00pm he agreed it was late afternoon but could not recall if it was night.
5. Later that night, he received a call from Mr Chlab telling him that the victim had been stabbed. Mr Ziadi was not at home but with his friends at the time. Mr Chlab asked him to come home. Mr Ziadi and his friends arrived at the unit but the police did not allow them to go inside. By the time they arrived, the police and ambulance were already on the scene.

A summary of Detective Senior Constable Alexander Guy's evidence

1. DSC Alexander Guy was the officer in charge and oversaw the investigation.
2. He recalled attending the area of the stabbing at 11:30pm on 7 August 2016. He read from parts of his statement made on 24 August 2017. When approaching the unit on Wilga Street, he observed blood droplets in the common area. There were other police officers already on the scene and the victim was in the unit on the ground floor.
3. He was informed that police had detained Mr Pottress on the Dale Street side of the railway station and DSC Guy travelled to interview him. He noticed small stains on the front of Mr Pottress' pants which appeared to be blood. DSC Guy placed Mr Pottress under arrest and transported him to the police station where his clothes were seized as evidence.
4. DSC Guy explained that after examination of Mr Pottress' clothing, "There was a female profile located on one of the stains that I identified." [54] The stain was not linked to the victim in this matter.
5. CCTV footage was obtained and two vehicles of interest were identified, being a red Camry and a BMW. On 10 August 2016, a search was conducted of 65 Lime Street, Cabramatta West, being a house associated with the applicant. A grey BMW, with the same identifying features as in the CCTV footage, was parked out the front.
6. On 6 September 2016, DSC Guy conducted an ID parade with the victim which was recorded by Detective Booker. DSC Guy agreed that the standard procedure was to place one person who is a person of interest within the group of photos in an ID parade.
7. On 20 September 2016, a search warrant was conducted at the applicant's residence. A black Puma hoodie and a pair of black track pants were located at the house. The applicant was arrested. A police interview was conducted with the applicant on the same day.
8. The applicant answered no comment in relation to questions about what he was doing on 7 August 2016, if he knew Mr Hanna, identification of images in CCTV stills from the railway station on 7 August 2016, and whether he was a passenger of a BMW on 7 or 8 August 2016.
9. The applicant said the last time he was at the railway station was when he walked past within the last two or three days. When asked again what he was doing on 7 August 2016, he replied, "Straight up, I don't remember, I, like, what I ate this morning, you know…Forgot." [55] He said he was not involved in the crime and had not hurt anyone. He said he did not want to answer questions because he was worried about incriminating himself for a crime he had not committed.
10. He consented to providing his DNA to the police and participating in an ID parade.
11. DSC Guy was shown the crime scene log, and confirmed the earliest time police attended the scene was 11:20pm. A line search was conducted, and police maintained a presence at the crime scene until 1:50am the next morning.
12. A search warrant was executed at the residence of Mr Hanna. A maroon-red Toyota Camry was seized; a McDonald's' receipt dated 5 August 2016 was found in the driver's side door.
13. The registered owner of the Camry was Mr Hanna's mother, who confirmed that her son, Mr Hanna, was using the vehicle on both occasions.
14. DSC Guy confirmed that the registered owner of the BMW was Dominic Nissan, who told police that he had sold the car to a man by the name of Olevar Merza. [56]
15. DSC Guy confirmed that Mr Hanna pleaded guilty to being involved in stabbing the victim.
16. When Mr Pottress was taken into custody, he provided DNA by consent. He was later released and never charged.
17. DSC Guy did not think he became aware until the following day that Mr Chlab said a knife had been thrown. He and other officers went back to the unit block and searched from the doorway entrance, along the grass and path area up to the road. No knife was found. No search was conducted beyond the perimeter of the fence. It was 20 to 30 metres from the blue door to the back fence.
18. DSC Guy agreed that the victim must have been attacked between 11:08:37pm, the time he was last seen on CCTV, to 11:12:02pm, the time of the first ambulance call. He agreed that if it was to be assumed for convenience that it took the victim 21 seconds to run the distance; that was a 3 minute period between then and the call. He agreed that the male (reference to Mr Hadani) said there were eight people still outside and said the person with the knife was Mr Pottress, and that this portion of the second call completed at four minutes into the call. He agreed if you added four minutes and 22 seconds (the 22 seconds being the time of the first 000 call) to the starting time of 11:12:02pm, the time would be 11:16:33pm. The last time the BMW was depicted was about 11:10:49pm. DSC Guy agreed that the speaker on the 000 call seemed to indicate 5 minutes and 10 seconds into the call that Mr Pottress was still outside. He agreed that 11:12:02pm plus 22 seconds plus 5 minutes 10 seconds took the time to 11:17:43pm. He agreed the BMW had been gone for approximately "six and a bit" minutes at this stage.
19. DSC Guy believed the victim was 14 years old when he participated in the ID parade and agreed it is desirable not to ask children leading questions. DSC Guy was taken through the questions he asked in the ID parade with respect to the victim's identification of the applicant. He did not agree that at the point when the victim had identified the applicant (photograph nine) and DSC Guy asked the victim, "Did you see him at Wilga Street?" the victim had not yet indicated he had seen the man at Wilga Street. [57] DSC Guy agreed that when he asked the following question, "Did you, when you were stabbed, did you see him?" the victim had not yet indicated he had seen the man when he was stabbed. [58] DSC Guy disagreed he introduced the concept of the stabbing into the victim's mind when asking that question.
20. DSC Guy was taken through the questions he asked in the ID parade with respect to the victim's identification of Mr Hanna. DSC Guy agreed that during the ID parade, the victim identified photograph four as Mr Hanna. He also identified photograph nine as the applicant. The victim said Mr Hanna was the man at McDonald's and the applicant was in the passenger seat of the BMW. The victim was asked if either of the two men he had identified were present when he was attacked at Wilga Street, and he pointed to the photo of Mr Hanna, "this one", and the photo of the applicant, "and this one". [59]
21. In re-examination, DSC Guy confirmed that police do not put people that they know the witness already knows into an ID parade. The victim had told police on 6 September 2016 in his interview that he knew Mr Pottress.

A summary of Anna Galezska-Dimitrovska's evidence

1. Dr Galezska-Dimitrovska worked at Liverpool Hospital in 2016 as a surgical registrar, and part of her job was to answer calls for trauma. She said the victim had sustained nine penetrating injuries. Most of the injuries were on the left side. The victim also suffered a punctured lung.
2. The doctors conducted a laparotomy which meant they cut into the victim's abdomen so as to better inspect the injuries of the organs. More injuries were discovered. The most important and critical injury was the injury to the victim's stomach. The injury to his stomach was not very big, only 5 millimetres, but was big enough to cause stomach content to leak out and a bit of bleeding. This required surgical intervention and sutures.

A summary of TL's evidence

1. TL was with the victim and other friends on the night of 7 August 2016 at the railway station. At around 9:30pm, his friends discussed buying cannabis. He recalled that they arranged to meet up with a dealer. DA and the victim were not with him when the meet up happened; they were hiding because they had been chased the night before. He thought it was DA who had been chased. The dealer arrived in a Toyota. TL bought the weed and then the Toyota reversed and left.
2. The group walked to the railway station. The Toyota drove past them and TL heard someone yell, "I want to shoot you" or "I'm going to shoot you". [60] The car then drove off and they continued walking. They waited for the train and the same car went back and forth while they stood on platform 2. He then saw a new car, a black car; as it drove past them someone said words to the effect of, "Go to the tunnels". [61] His friends did not discuss going to the tunnels and instead waited for their train.
3. The black car stopped in the carpark and three occupants got out and started running in the group's direction. TL and his friends jumped on the tracks. DA and the victim ran. His other friends were on the fence getting ready to jump. The three men told TL and his friends, Junior and Ajaz, to come onto the platform and they did. They slapped Ajaz. Ajaz said, "What the, what the F". [62] The rest were already on the tracks, and after Ajaz was slapped, Junior, TL and Ajaz jumped on the tracks. He did not know where the victim was. He recalled the men telling them not to come back to Fairfield. He did not see any of the three men's hands; he thought they had their hands out. The men took off and he and his friends split up.
4. He did not recall seeing anyone on the other side of the train tracks, although he read his statement before court and saw that he had said he saw someone on the other side.
5. Leave was granted to the prosecutor to cross-examine TL pursuant to s 32 of the Evidence Act. TL was taken to paragraph 10 of his police statement made on 28 August 2016. He recalled telling police that he saw a man called "Roni" and that he saw him walk to the fence of the carpark on the opposite side of the railway station and yell out, "What's happening?" [63] He recalled telling police he then heard the driver say Roni's name and then speak in a different language to him. He did not recall what he heard the driver say to Roni. He later said he heard the driver say to Roni, "Catch him so we can chop his leg off". [64] The victim then jumped the fence. He did not see in which direction the victim ran. He did not see Roni do anything.
6. TL saw the three men leave in their car, the black car. He did not see where the car went or what else it did. He recalled the black car stopped at some point and then it went again. TL and his friends left the station and went to Cabramatta. He did not recall who received a call later that night about what happened to the victim. He described the three men in the black car as having beards. They were dressed in black.
7. In cross-examination, TL said his description of the men from the car as Assyrian came from his friend's description of the men. He recalled that in his statement he said the Toyota was red. At the time of purchasing the weed, the victim was behind an electrical box. After the deal was concluded, the driver of the red car indicated to the victim and said, "You're the bloke from yesterday". [65] He agreed the car then reversed and drove the same way it came.
8. He agreed he told the police that the three men were all swearing at Junior saying, "Fucking get up" [66] off the train tracks but he was not sure who said it. He agreed he did not attribute any specific threats or anything physical to the front passenger, but he was one of the three men that ran up to his group.

A summary of Roni Pottress' evidence

1. Mr Pottress was homeless in August 2016. He was sleeping in the area of the sweet shop in Fairfield, in the carpark.
2. Mr Pottress recalled a night when a boy with a white hat ran across the train tracks. He ran after him because he wanted to help him. He was not able to catch up to him. When he could not catch the boy, he went back to the shop and Fairfield Park to go to the toilet. He was then arrested and taken to the police station where an interview was conducted. Mr Pottress could not recall if anyone had asked him to chase the boy.
3. Leave was granted to the prosecutor to cross-examine Mr Pottress pursuant to s 38 of the Evidence Act. Mr Pottress could not read so he was led through his statement. Mr Pottress thought he remembered telling police that two men called out, "Hey Roni". [67] He told police, "They want me to smash them, but I can't". [68] When asked who they wanted him to smash, he told police, "The guy with the white hat". [69] He told police he did not know why. He agreed he said to police, "I just wanted to run after him, catch him, say what the fuck is going on, and let him go". [70]
4. Mr Pottress told police that he knew the victim and did not want to hurt him for that reason. He did not have a knife when he chased the boy; he only wanted to talk to him.
5. Mr Pottress said that the men who called out to him were wearing black.
6. He was taken to photographs of clothes seized from him upon his arrest. He accepted his blood was on the clothing, saying, "I [washed] myself when I got cut at work. Yeah, this is because is dirty because I was sleeping on the floor". [71] He explained he slept in the gutter sometimes. He denied going to Wilga Street.
7. In cross-examination, when it was put to him that from time to time he hid knives and sticks in the area behind the shops, he said, "No, I got nothing to do with that knives or sticks. Those sticks for the mop and brooms and the shop was using it, was all from shop, … they're all using this sort of stuff there, they're cleaning products. They had all sorts of things put down the side where the fire exit was." [72]
8. After he chased the man, he did not go in the direction of Lawson Street but went back to the shop where he slept and then went to the railway station and then the park. Mr Pottress said: "I got nothing to do with it after. I don't know what happened so I don't know, I just left him, he's gone. I don't know where he go. I'm a good runner too. I couldn't have caught up to him to talk to him." [73]
9. He did not chase him in the direction of Wilga Street. He stopped chasing him when he could not catch him. He told police that when he wasn't able to catch up to him, he went straight to Fairfield Park toilet.
10. Mr Pottress was taken to the map which indicated the location on Wilga Street where the victim was stabbed. Mr Pottress was asked if he was in that area that night and he answered no, and then said he wasn't sure. When asked if he was in the area between 11:00pm and 11:30pm he said no, and then said he didn't know. He could not recall the time the police spoke to him, but he remembered going to the police station.
11. Mr Pottress recalled telling police that he chased the boy under the bridge, but added that he ran halfway through, came out from the other side, and came back. He did not chase the boy up Fairlight Avenue and across Wilga Street. He told police that he did not go to the unit block on Wilga Street. He said he was not present when the victim was stabbed. He agreed that when the police asked him if he was ever at the unit block, he told police that he walked around and had a quick look but did not go in the building.
12. The police told Mr Pottress in the interview that they would be taking swabs for DNA and asked whether they would come up at the crime scene. Mr Pottress responded, "Maybe. Maybe, we were joking hours ago." [74] He explained he had seen the victim hours before the incident, during the day. During that time, he touched the victim on his arm, having his arm around him, while he was talking to him at Mr Hadani's shop.
13. He agreed he heard men yelling out about the boy before he chased him. He didn't know who the people were yelling at him.
14. He denied holding a knife outside the building on Wilga Street. He said he never had a knife. He said he usually carried scissors to chop up cannabis, but he stopped carrying scissors after he got in trouble with the police. It was pointed out that he was convicted of carrying a knife in public, and he said that he only used it for cutting grass and lawn mowing.
15. He denied chasing the boy up Fairlight Avenue into a unit block and stairwell on Wilga Street. He denied that his purpose in going back to Fairfield Park was to wash his hands and dispose of the knife. He responded, "that's a lie, that's a lie. That's a lie." [75] He could not remember how much time had passed from when he left the Fairfield RSL to the time he spoke to the police. He maintained he went to the park to go to the toilet.

A summary of Detective Senior Constable Steven Fitzgerald's evidence

1. DSC Fitzgerald attended the unit on Wilga Street and took a number of photographs. He was shown a Cellbrite report from the applicant's mobile phone. He confirmed that from 7:36am, there was access to numerous news sites and more than 20 searches in relation to stabbing at Fairfield.

A summary of the Defence case

1. The defence submitted that the photo identification process which identified the applicant as being one of the stabbers was flawed and was, in any event, contradicted by the evidence of his friend, Mr Chlab. Mr Chlab was uninjured at the time and in effect gave evidence that the victim was seriously injured lying on the tiles near the bottom of the stairs in the unit complex when the victim claimed he was outside and saw the applicant.
2. Further, the defence argued that the victim alleged that at this time, Mr Chlab had given him a piece of wood. Mr Chlab gave evidence that he never gave the piece of wood to the victim. Mr Chlab also said that it was too dark outside to make any identification of the assailants.
3. The defence submitted that the victim identified the applicant in the photograph array because he had seen him at the railway station that night, not because he had seen him outside the unit complex after the stabbing.
4. Finally, based on the CCTV footage, the defence submitted that the applicant had driven away from the scene as the front seat passenger of his BMW with another man driving before the time that the victim allegedly saw the assailants outside the unit complex after the stabbing. The applicant gave evidence to this effect.

A summary of the applicant's evidence

1. The applicant said he was not at Fairfield McDonald's on 5 August 2016 and he was not in the red Camry at the Downey Street carpark on 6 August 2016. He agreed that he was in the CCTV footage from the railway station on 7 August 2016.
2. The applicant gave evidence that on the night of 7 August 2016 he was at his friend's house with other friends. They all decided to get something to eat. His friend Antonio drove while the applicant sat in the front passenger seat. While driving, Mr Hanna, who was sitting in the back of the car, received a phone call. Mr Hanna asked to be dropped off at the tunnels and informed the applicant that the boys who "jumped" them were at the railway station. The applicant told Mr Hanna that they would go to the railway station and "see what's going on". [76]
3. The applicant agreed that he got out of the BMW with two others and walked to the platform. When they got to the station, the applicant noticed about "five, six bodies". [77] The three men approached the platform and the applicant said, "the boys, they got a bit intimidated and they jumped on the tracks, I told them, 'Relax, come back, we're not here to fight'".
4. The applicant said, "They were kind of comfortable enough to come back so obviously they knew they weren't in any imminent danger right there and there so they've jumped back up and I started talking to them." [78] The applicant said he was trying to placate the situation. The applicant said he then exchanged words with the boys by swearing at them and asking them why they had been "jumping people". The applicant said he noticed Mr Hanna getting angry. Mr Hanna then swung at one of the boys and so the applicant and his friend grabbed Mr Hanna and pushed him back.
5. He said that the victim got scared, jumped onto the tracks and ran away. The applicant then said: "[T]he first thing that came to my head at the time was tunnels, he's running towards the tunnels and he's sitting on the fence and he's facing the tunnels, exactly where Martin had just told me the boys are waiting to meet up to go, come fight these guys and yeah, that's all." [79]
6. The applicant noticed Mr Pottress and told him to not let the victim go to the tunnels. The applicant said he watched to see if Mr Pottress managed to catch up to him. They were out of sight so he turned around with his friends and went back to the car. He got into the front passenger seat again and Mr Hanna was in the back. Mr Hermiz (since deceased) was driving.
7. They exited the carpark onto Dale Street. They let their friend Elzie [80] jump into the car. They turned right onto Wilga Street. The applicant said he started to stress as he thought the way the victim had been running was in the direction of the tunnels and he knew that his friends were still there. They continued down Wilga Street and turned right on Fairlight Avenue. They stopped on Fairlight Avenue as they saw the shadow of two or three people run past their vehicle, the BMW. The people running were coming from the direction of the tunnels, towards Fairlight Avenue, towards Wilga Street. The car stopped and Mr Hanna and Elzie jumped out and started to pursue the victim. The applicant said he told them to stop and to get back in the car but they ignored him. The applicant said he was furious at Mr Hanna for not listening to him. The applicant and Mr Hermiz then drove another 10 metres, did a U-turn and reached the intersection of Fairlight Avenue and Wilga Street. They waited for 20 to 30 seconds with high beam lights on to see where the men went. They then turned left onto Wilga Street and drove off past the railway station.
8. The applicant said what had happened had made him lose his appetite so they went back to their friend's place from earlier in the night.
9. The applicant said he did not go to the unit on Wilga Street. He said he never had a knife with him at any stage of the night. When it was put to him that he was at the stairwell in the unit when the victim was stabbed, he said, "If I was present at the stairwell, he would have never got stabbed". [81]
10. The applicant said he did not see a red Camry that night.
11. He recalled that on 7 August 2016, he was wearing a Puma hoodie jumper that was all black with a white puma across the chest, and Lonsdale tracksuit pants. He could not recall what shoes he was wearing but he knew they were white. He had a scarf on that stayed with him from the railway station to when he took off down Wilga Street. He said his mother still had the scarf. [82]
12. Regarding the internet searches that were made on his phone on the morning of 8 August 2016, the applicant said his grandmother lived next door to the unit block. He received a call from his brother-in-law telling him that an incident had occurred. The applicant said: "I put two and two together, I knew that something had happened from prior, like prior yeah and I ended up searching, I tried searching up to see what exactly happened or what information the police were releasing to the media to find out what was going on exactly, that's why I made them searches. If I was there I would've known what what happened, I wouldn't need to search it". [83]
13. With respect to the telephone calls played during the trial, the applicant said he did not want the victim to give false evidence: "I wanted him to do two things, either not come to court and lie or come to court and say the truth, like say exactly what you say, like don't say you seen me there when you never seen me there. He never actually seen me there, so - so". [84]
14. During cross-examination, the applicant gave evidence that he and Mr Hanna were very good friends. They had known each other's families for a long time. He said that on the night of 7 August 2016 he was trying to protect Mr Hanna as he knew his family.
15. The applicant accepted that he led the charge at the railway station. He did not agree that he was acting aggressively on the platform, but then agreed he was a little towards the end when he was making his way back to the BMW and telling the remainder of the boys to leave the railway station. He did not agree that he slapped one of the boys. He said he pushed his shoulder area, but the person jumped back quickly.
16. The applicant said he yelled out to Mr Pottress in Assyrian, "Stop him". [85] He knew Mr Pottress very well; he came from a good family. He realised Mr Pottress knew the victim from the way he was looking at him and was trying to wave at him, so he asked him to stop the victim from running away.
17. The applicant denied that he went back to the BMW in order to chase the victim. He said before Elzie got into the car, the intention was to go towards the tunnels where their other friends were. He said he was not certain who the other boys at the tunnels were because he was not there. He was at the railway station to try and stop the fight.
18. He did not accept that he received a call from Mr Hanna that night asking him to come to the area to help him out. He did not accept that Mr Hanna got out of the red Camry and into the BMW with the applicant. The applicant said that Mr Hanna was with him and his red Camry was with a friend of his.
19. The applicant agreed that he knew at the time that there were CCTV cameras at the railway station. The applicant did not agree that he was tailoring his evidence to match the CCTV footage and what he heard in the telephone calls. He said he was telling the truth. He agreed that he wanted the victim to be coached on what to say but he wanted him to tell the truth which was that the applicant was not present at the unit.
20. The applicant agreed that he had called the victim a "snitch" in the telephone calls. [86] He said he was furious that he was put in prison for something he did not do and he lost compassion for the victim even though he felt sorry for him.
21. He agreed he told his friend Mr Hermiz to make sure that whoever spoke to the victim covered his face. He said the reason he asked Mr Hermiz to cover his face when he approached the victim was because he did not want his friend to get in trouble. He said the victim had already put him in gaol and he did not want it to happen to another person as well. He accepted that he was prepared to offer the victim money.
22. It was put to the applicant that Elzie had nothing to do with the matter and the applicant was trying to pay him off to admit to something he did not do. He agreed that he gave Elzie $50,000 to entice him to tell the truth. He did not agree that he gave Elzie the money so that he would admit to something he did not do. He said that Elzie could be seen in the footage getting into the car at Dale Street carpark. The applicant said he wanted Elzie to take the blame for what Elzie had done, so that the applicant could be released from gaol.
23. He was taken to a call he made on 22 November 2016 and shown where he said, "He must say he was in your Corolla." [87] He agreed he knew at the time that the police had made the link between him and the BMW. He agreed that he wanted Elzie to admit to police that he had committed the crime. He agreed he wanted Elzie to say he was in a different car to the applicant's but said this was the truth, and that in the footage he jumped out of the red car and came into the BMW. He disagreed he wanted Elzie to say this in order to distance himself from the incident but said it was because Elzie had been in the red car prior to the BMW. He knew Elzie would receive a lower sentence as a juvenile, but disagreed that was why he wanted Elzie to take the blame for it: "he had actually done it". [88]
24. He was taken to Exhibit P. It was put to him that that was the scarf he was wearing on the night. He said it was Mr Hanna's scarf which he wore under his clothes. He said his scarf was with his mother. He did not agree he was saying it was Mr Hanna's scarf so that he was not linked to the crime scene. He said DNA evidence from him would have been detected on it if it was his scarf.
25. The applicant agreed that he was taller than Mr Hermiz and Mr Hanna.
26. The applicant was shown Exhibit B, photograph 11. He agreed that he was the figure facing away from the camera. He disagreed that the scarf he was wearing in that photograph was dropped on his way out of the unit. He said that the scarf was Mr Hanna's scarf and he still had his scarf, which was never seized by the police. He denied that his family bought him another one that looked similar.
27. The applicant said it was possible he had washed his jumper but he was not sure.
28. The applicant said he made the internet searches on 8 August 2016 because he was panicking that the police might attribute the crime to him as he had been at the railway station earlier.
29. In re-examination, the applicant was shown a black scarf, tendered as Exhibit 5, and he identified it as his scarf that the police did not seize from him. The applicant said the police "left it out" to suit their case. [89] He said he was wearing that scarf on 7 August 2016.

Legal Principle

1. The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Keifel JJ) in SKA v The Queen [90] as follows: "The task of the Court of Criminal Appeal [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".'" (footnotes omitted)
2. In The Queen v Baden-Clay, [91] the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) emphasised the regard that must be had to the constitutional function of the jury as the tribunal of fact: "The whole of the evidence The role of the jury [65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" (footnotes omitted)
3. More recently in Pell v The Queen, [92] the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations concerning the jury's advantage in seeing and hearing witnesses at [38]-[39]: "[38] It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible. [39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (footnotes omitted)
4. The High Court went on to say: "[42] As Weinberg JA noted, defence counsel's choice to employ the language of impossibility in his closing address risked setting a forensic hurdle that the defence did not need to overcome. Regardless of counsel's rhetorical flourish, the issue was whether the prosecution had excluded the reasonable possibility that the applicant did not commit the offence/s. [43] At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. [44] The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: 'But the question for an appellate court 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.' (footnote omitted; emphasis in original) [45] As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (footnotes omitted)

Assessment of evidence

1. During the trial, the jury had the opportunity of seeing and hearing many witnesses. The victim and the applicant gave evidence of some length and were cross-examined. In these circumstances, weight must be given to the fact that the jury were able to be satisfied beyond reasonable doubt of the guilt of the accused in respect of counts 2 and 3 on the indictment.
2. Notwithstanding the jury's assessment that the evidence of the victim was honest and reliable, the question remains whether there are inconsistencies, discrepancies and inadequacies upon an examination of the record, which lead to the conclusion that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant's guilt.
3. The matters affecting the victim's reliability which the applicant challenged in this appeal were clearly exposed in cross-examination, in the final addresses of the prosecutor and the applicant's trial counsel, and in the trial judge's summing up. The trial judge reminded the jury of what were said to be inconsistencies between the victim's evidence and that of Mr Chlab; Mr Hadani's evidence that he told the 000 operator he saw eight people outside within minutes of the stabbing; the competing arguments raised about the identification process; the timing of the stabbing; the movement of the BMW; and the applicant's evidence.
4. The trial judge instructed the jury that the prosecution case in relation to counts 1 and 2 largely depended on their acceptance of a "single witness" being the victim. His Honour's directions to the jury included: "[I]n any criminal trial where the Crown case relies solely, or substantially, upon the evidence of a single witness, every trial judge must tell each such jury to approach the evidence with particular caution because of the onus and the standard of proof placed upon the Crown". [93]
5. His Honour informed the jury that they were entitled to convict the applicant upon the victim's evidence, "but only after you have carefully examined the evidence of the [victim] and satisfied yourself that it is reliable beyond reasonable doubt". [94]
6. His Honour went on to say: "In considering [the victim's] evidence, and whether it does satisfy you of the guilt of the accused, you should, of course, look to see if it is supported by other evidence." [95]
7. It was open to the jury to find that the victim's identification of the applicant as being one of the three men who were present when he was stabbed was supported by the following: 1. The incident at McDonald's on 5 August 2016 in which Mr Hanna, the applicant's close friend, was involved. The jury was entitled to find that Mr Hanna's desire to get the boys who "jumped" him provided the motivation for the applicant's participation in the stabbing. 2. The CCTV footage clearly showed the applicant's aggressive behaviour at the railway station which was inconsistent with his evidence that he was trying "to placate the situation". Furthermore, there was Mr Pottress' evidence that he was told to smash the guy with the white hat. [96] It was not in dispute that the applicant had called upon Mr Pottress to chase the victim. When viewed in combination with the urgency with which he got into the BMW after the victim fled from the station, the jury was entitled to reject the applicant's evidence that he drove to the corner of Wilga Street and Fairlight Avenue only because he was concerned that others might be lying in wait for the victim at the tunnels and to find that he intended to pursue him. 3. The victim's identification of the applicant being the passenger sitting next to the driver of the BMW was supported by the CCTV footage and the applicant's own evidence that he was in the front passenger seat of the BMW when it drove up Wilga Street, turned right into Fairlight Avenue and then stopped. The victim told the jury when he was running down Fairlight Avenue, he saw the BMW come up Wilga Street from the direction of the station and turn right into Fairlight Avenue where it stopped quickly on the corner. He said three men exited from the front passenger door, the back passenger door and the driver's door. The victim's further evidence included that the man he saw get out of the front passenger seat started chasing him. [97] 4. The CCTV footage from Fairfield Station showed that the applicant was wearing a black scarf with tassels consistent in appearance with the black scarf with tassels found at the unit complex. Mr Chlab gave evidence that he saw one of the three men wearing something around his face that would usually be worn on the shoulders. 5. Unsurprisingly, the jury did not accept the applicant's explanations for the intercepted telephone calls which are detailed at [12]-[14] above. It was well open to the jury to find that those calls demonstrated a consciousness of the applicant's guilt for his participation in the stabbing.
8. The Court has viewed the footage of the victim's ID parade (Exhibit N) and has reached the conclusion that it was open to the jury to find that, despite initial hesitancy, the victim engaged in the identification process thoughtfully and ultimately expressed with conviction that both the applicant and Mr Hanna were present at the unit on Wilga Street when he was attacked on 7 August 2016.
9. In reading the evidence of the victim, it must be recognised that he was 14 years of age at the time of the stabbing and 17 at the time he gave evidence some three years later. There was nothing inherently implausible in his oral testimony, the bulk of which was consistent with other evidence including objective evidence such as the CCTV footage. The primary issue in dispute was whether the applicant was present and participating in the attack which occurred in the foyer outside the door of Mr Chlab's Wilga Street unit. The applicant did not deny that he was in the vicinity shortly before the stabbing, nor that the stabbing occurred. His case was that the three men who entered the foyer of the building did not include him. On his case, his BMW had left the area before the victim and Mr Chlab came out of the building chasing the three men. That conclusion he sought to support by reference to the timing of such events as were recorded, either by reference to the CCTV footage, or the phone calls. However, that reasoning was dependent upon accepting a degree of precision in the accounts of what Mr Chlab and the victim saw, and at what points in time. We are not persuaded that this material gives rise to a reasonable doubt as to the presence of the applicant.
10. Otherwise, the applicant relied on inconsistencies as to matters of detail, primarily in the accounts given by Mr Chlab and the victim. These matters, taken individually and cumulatively, could cast an element of doubt on the identification of the applicant as present in the foyer of the unit. However, an assessment of the cross-examination of the victim, based on the transcript, did not demonstrate a material basis giving rise to reasonable doubt in our minds. He answered questions briefly, but responsively, and said when he did not know, or that he did know something not because he had been present but because he had been told about it later. The transcript does not reveal any basis upon which the jury ought to have formed a reasonable doubt as to his creditworthiness. By contrast, as noted above, aspects of the evidence given by the applicant were inherently implausible. If his explanations of the intercepted telephone calls were not to be accepted by the jury, they cast significant doubt on his credibility as a witness of truth in respect of the central issue, namely whether he was involved in the attack in which the victim was stabbed numerous times.
11. There were undoubtedly difficulties with the evidence of the victim. However, on the whole of the evidence, these difficulties were not such that they ought to have caused the jury, acting rationally, to entertain a reasonable doubt as to the applicant's guilt of counts 2 and 3 on the indictment.
12. We would dismiss Ground 2 of the appeal.

Severity appeal

1. Section 44(2) of the Sentencing Procedure Act provides that the balance of the term of a sentence "must not exceed one-third of the non-parole period" unless the court decides that there are "special circumstances for it being more". The sentence imposed in the present case (a 9 year non-parole period with a 3 year balance of term) complied with this provision.
2. When a court accumulates a new sentence on part or all of a pre-existing sentence, it may consider varying the length of the non-parole period to take account of the fact that the balance of term will be a smaller proportion of the total term of imprisonment than of the new sentence. The adjustment will result in a balance of term of the new sentence which is greater than one-third of the new non-parole period. The authorities confirm that a finding of special circumstances is available to permit such a variation in the proportion with respect to a new sentence, which would otherwise comply with s 44(2). However, there is no obligation to do so.
3. In written submissions, counsel for the applicant submitted that neither counsel had raised the matter before the sentencing judge (Colefax DCJ) and, there being no mention of the matter in the judgment on sentence, it may be inferred that the sentencing judge overlooked the effect of the accumulation on the existing sentence. However, although the first part of the submission may be correct (as to counsel not having raised the matter), the second proposition, and the accompanying inference, are not correct. The judge stated: "[71] I note that since the time you were arrested, you have served various other terms of imprisonment for totally unrelated matters. [72] Accordingly, the sentence which I shall soon impose will be backdated so as to commence on 26 September 2019. [73] In fixing that start date, and in fixing the aggregate sentence, I have had regard to totality." The judge had already concluded that whilst "rehabilitation remains a relevant factor, it is of reduced significance" and that the applicant's "prospects of rehabilitation" were poor: at [63] and [64]. He continued: "[65] They would not be enhanced by a longer period on parole - and in any event, the non-parole period that I intend fixing will be sufficient for that purpose."
4. The effect of the proposed variation would be to provide a parole period of 3 years 9 months, which the trial judge considered unnecessary, and would reduce the effective non-parole period from 9 years to 8 years 3 months. The judge was entitled to take the view that the appropriate non-parole period was 9 years.
5. The fact that the judge was conscious of the period of backdating and the existence of earlier sentences, together with the reference to consideration of the principle of totality, demonstrate that the possibility of a variation in the sentence period and the non-parole period were not overlooked.
6. The challenge to the severity of the sentence for failure to find special circumstances must be rejected.

Drug offences - sentence appeal

1. On 15 February 2019 the applicant was sentenced in the District Court (O'Brien DCJ) as a leading member of a cannabis supply syndicate. He had continued to run the syndicate using mobile phones smuggled into the prison, following his arrest in September 2016. He had established residential locations as safe houses, which also continued to operate whilst he was in custody and, indeed, after being raided by police. At the time of his arrest on 20 September 2016 he was found in possession of 2.7kg of cannabis, with which he was originally charged, although the charge was withdrawn. It was agreed that between 20 September 2016 and 15 February 2017 the applicant was involved in the supply of more than 7kg of cannabis leaf. There was a further charge of dealing with the proceeds of crime. The applicant entered pleas of guilty to each count and was given a 25% utilitarian discount as a result.
2. There were, in substance, two errors alleged on the applicant's behalf. One was that a period of five months between 20 September 2016 and 15 February 2017 had not been taken into account with regard to either the sentence imposed by Judge O'Brien, or the sentence for the wounding and the related offence imposed by Judge Colefax. However it was agreed, in response to the written submissions for the Director, that that was an error and the issue need not be pursued.
3. Judge O'Brien sentenced the applicant as one of seven co-offenders. The other alleged error was that in a passage in his written reasons (at p 14), under the heading "The roles played and objective seriousness", the judge stated: "The objective seriousness of his offending is also aggravated by the fact that Mr Merza has a significant criminal record including three prior convictions for supplying or taking part in the supply of prohibited drugs, in respect of which sentences of full-time imprisonment were imposed."
4. The Director conceded that this statement involved an error in that the existence of a criminal record cannot affect the objective seriousness of the offending for which the person is to be sentenced. Given the conceded error, the Director did not oppose a grant of leave to appeal. It followed, in accordance with the principles stated in Kentwell v The Queen, [98] that the Court should grant leave to appeal and re-exercise the sentencing discretion. Although the sentence is no longer being served, if it should have been shorter, that may affect the commencement date of the later sentence.
5. Whilst the Court should accept there was an error in the present case, the error rests on a linguistic convention which should be acknowledged.
6. Before the heading in the judgment noted above the judge had already identified a number of issues relevant to the objective seriousness of the offences. He said that the quantity of drugs supplied fell below the middle of the range between the indictable and commercial quantities, "a relevant factor to be taken into account in considering objective seriousness": p 13. He had also noted that the monetary value would have been substantial and had regard to the sophistication and organised nature of the enterprise, inferring that the drugs were supplied for financial gain. By contrast, the language used in the passage under the heading "The roles played and objective seriousness" was not so confined. The judge stated that the roles played were "obviously significant in determining the respective criminal culpability of each offender." The term "culpability" was also used in making an assessment of the differing levels each played in the organisation. As the head of the syndicate, according to the agreed facts, the judge expressed the view that Mr Merza was "the most morally culpable of all of the offenders."
7. When the judgment is read as a whole, it appears that the term "objective seriousness" was generally referrable to the offending, and "culpability" to the offender. Further, the headings found in the judgment did not necessarily confine the considerations contained in the ensuing text. Thus, whilst read literally the impugned statement was erroneous, there might have been good reason not to read the statement literally.
8. Statements of principle which require hard lines to be drawn between different aspects of sentencing are, as Spigelman CJ noted in R v McNaughton, [99] hard to reconcile with the "instinctive synthesis approach to sentence." [100] However, the Chief Justice observed that the need to assess separately the objective seriousness of the offending was derived from the judgment of the High Court in Hoare v The Queen. [101] In Hoare the High Court held that a sentencing judge should not increase an otherwise appropriate sentence to make allowance for remissions which were likely to reduce the actual sentence served in custody. Two reasons for adopting that approach were noted: first, there was no right to remissions and they might not be applied. The second reason was as follows: [102] "Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances …. It would represent a departure from that basic principle if a judge, instead of imposing a sentence within the limits of what represented appropriate or proportionate punishment for the crime, were to 'impose a longer sentence merely because the offender may possibly earn remissions for good conduct' …."
9. In the first sentence quoted, the word "objective" is italicised in the original and a reference is made to Veen v The Queen [No 2]. [103] However, the principle in Hoare actually operated to prevent the increase of a sentence deemed appropriate following the whole process of instinctive synthesis, including the personal circumstances of the offender. The possibility of future reduction by remissions was simply an irrelevant consideration.
10. The ultimate source of the principle was the troubling case, Veen [No 2]. It is sufficient to refer to the joint reasons of Mason CJ, Brennan, Dawson and Toohey JJ in Veen [No 2]. The issue was the manner in which the purpose of protecting society could be applied in the case of a person who had committed more than one homicide, but suffered from diminished responsibility. In dealing with statements by Jacobs J in a previous case involving Mr Veen, the majority in Veen [No 2] stated: [104] "The sentencing principle which his Honour laid down is that a sentence should be 'proportionate to the gravity of the offence' unless, perhaps, the applicant's history warrants some departure from the principle. … The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender…."
11. After noting "the troublesome nature of the sentencing discretion" and the need to give weight to different purposes of criminal punishment, the joint reasons continued: [105] "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences …. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
12. The introduction of standard non-parole periods gave statutory effect to the phrase "middle of the range of objective seriousness for [specified] offences". [106] It now refers to "objective factors affecting the relative seriousness of [an] offence". It is not necessary to the scope of the statutory language, nor the cases discussing its operation. [107] At least on one view, the idea that there is a bright line distinction between objective seriousness and moral culpability as integers of the sentencing process is not to be found in this line of authority. However, as error has been conceded, it is necessary for this Court to proceed to resentence.

Resentencing

1. In considering the objective seriousness of the offence of supplying prohibited drugs, it was clearly relevant that the quantity of drug was approximately 30% of the commercial quantity. However, the supply took place as part of the sophisticated and organised nature of the enterprise described by the sentencing judge which was a commercial operation. The role played by the offender was agreed to be that of the person who directed the activities of the syndicate and thus was a principal in respect of the supply offence and the charge of knowingly directing the activities of a criminal group contrary to s 93T(4A) of the Crimes Act 1990 (NSW). A significant element of the latter offence was that it was an activity conducted from prison by way of mobile phones, possession of the phone being an offence contrary to s 27DA(1) of the Summary Offences Act 1988 (NSW), which was included on a Form 1.
2. The offence of dealing with proceeds of crime arose from activities of the applicant and his associate Antonio Hermiz in laundering through a TAB account money obtained by the drug syndicate from the sale of cannabis. There is no doubt, and it was agreed, that the applicant knew that the money was the proceeds of crime.
3. The objective seriousness of the offending may properly be addressed first as a general question, as each of the offences formed part of one ongoing activity. None of the offences involved a standard non-parole period, so it is not necessary to identify the seriousness by reference to objective factors placing it in or outside the middle of the range of seriousness, as would be required by s 54A(2). It is sufficient to say that the seriousness lies near the mid-point. This assessment will have different consequences for the individual offences.
4. So far as the personal circumstances of the applicant are concerned, the findings of the sentencing judge should be accepted. Although his family fled from Iraq to Jordan when he was four years old and came to Australia when he was five, there is no evidence linking his criminal history with his disrupted earlier years or upbringing in a new country. He completed Year 10 at Fairfield High School and subsequently obtained employment. According to the report of his psychologist (the applicant did not give evidence on sentence), he commenced using alcohol and cannabis when he was 15 years of age and cocaine at 17. He also claimed to have a gambling problem. According to a sentencing assessment report dated 30 October 2018 he admitted to ongoing use of cannabis whilst in custody.
5. The sentencing report assessed his risk of reoffending as "medium"; the judge was "guarded" in respect of prospects of rehabilitation. He expressed hopes that, being a relatively young man, the applicant "may yet be able to live a social life within the community."
6. The trial judge in effect rejected his written claims of remorse and noted that the author of the sentencing assessment report concluded that he had "largely minimised and rationalised his offending behaviour" and "has no recognition in regard to any individual victims."
7. Evidence tendered by the Director on the appeal revealed a significant course of misconduct whilst in custody which removes the possibility of a more favourable assessment at the present time.
8. It was clear from the applicant's criminal record that he was entitled to no leniency. His criminal record, his current offending and subsequent conduct demonstrate a flagrant disregard for the criminal law: it is apparent that specific and general deterrence loom large in considering an appropriate sentence. Any diminution of the sentence below that imposed by the sentencing judge must have regard to the careful gradation of sentences imposed on the group of offenders sentenced at the same time.
9. The sentencing judge indicated the sentences which would have been imposed for the individual offences as follows: Count 1: 5 years imprisonment less 25% the plea of guilty, indicating a sentence of 3 years and 9 months; Count 2: a sentence of 4 years imprisonment less 25% for the plea of guilty, indicating a sentence of 3 years imprisonment; Count 3: a sentence of 2 years imprisonment less 25% for the plea, indicating a sentence of 18 months imprisonment. The aggregate sentence was a term of 4 years and 6 months with a non-parole period of 3 years.
10. In our view, the second offence, directing the activities of a criminal group, which carried a maximum penalty of 15 years' imprisonment would have warranted a higher starting point. The manner in which the activities were conducted, including from the gaol, suggested that the culpability of the applicant was significantly above the mid-point. Because of his youth, a crushing sentence would not have been imposed, but a starting point of 6 years imprisonment would have been appropriate, giving a discounted putative sentence of 4 years 6 months. If the supply of cannabis were treated as an isolated offence, we would have proposed a sentence of 3 years 6 months, discounted to 2 years 7 months for the guilty plea. We agree with the putative sentence for the dealing with the proceeds of crime, namely 2 years, discounted to 18 months.
11. If individual sentences had been imposed, there would have been a high level of concurrency so as to avoid double punishment for related conduct. However, the aggregate sentence would not have been less than 4 years and 6 months. Given that sentence, the 3 year non-parole period was the appropriate sentence. Accordingly, in our view no lesser sentence was warranted and the appeal should be dismissed.
12. HAMILL J: I have had the advantage of reading the draft judgment of Basten JA and Price J. I adopt their Honour's comprehensive summary of the evidence given at the applicant's trial. I agree with their Honours, essentially for the reasons provided, that the appeal against conviction should be dismissed. I also agree that the ground of appeal advanced in the appeal against the sentence imposed by O'Brien DCJ should be upheld but that the appeal should nevertheless be dismissed. However, I have reached a different conclusion in relation to the appeal against the sentence imposed by Judge Colefax SC. I would uphold that appeal and exercise the sentencing discretion afresh. In doing so, I would find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 and reduce the non-parole period.

Ground 1

1. I agree with Basten JA and Price J that, in the circumstances of the applicant's trial, the directions concerning the standard of proof and the use of the facts behind count 3 to support an inference that the applicant demonstrated a consciousness of guilt with respect to the offences charged in counts 1 and 2, did not give rise to any unfairness. The way the summing up and relevant directions unfolded, as described in the joint reasons, satisfies me that the jury would have understood that the facts underpinning count 3 needed to be established beyond reasonable doubt and that understanding would almost certainly have constrained their use of that evidence as "consciousness of guilt" evidence when considering count 1 (where there was a verdict of not guilty) and count 2 (which resulted in a conviction). The re-direction given at the request of the Prosecutor, reproduced in the joint reasons at [19], was the last thing the jury heard before retiring to consider its verdict. In those circumstances, there was no risk that the jury would misuse the evidence.
2. Again, as the joint reasons point out at [29], the trial Judge did not direct the jury that the matters giving rise to count 3 could be used as consciousness of guilt evidence in respect of the other counts even if it was not satisfied of those matters beyond reasonable doubt.
3. I accept that cases may arise where there is a danger of a kind of circular reasoning process when the facts of one count are used in support of another count and the jury is not directed as to the standard of proof. That circularity of reasoning is that the jury (i) is satisfied to some lesser standard of the evidence supporting (in this case) the public justice offence, (ii) uses that evidence to reach a finding of guilt in relation to another count, and (iii) reasons to satisfaction beyond reasonable doubt of the public justice offence by reference to its finding of guilt in relation to the other offence. In such a case, the trial Judge will have to be careful in framing the necessary directions. However, as explained in the joint reasons and in the foregoing paragraphs, that danger did not arise in the present case.
4. I agree with Basten JA and Price J that ground 1 cannot be upheld.

Ground 2

1. As Basten JA and Price J point out, Ground 2 was addressed to the conviction of the applicant on count 2. Having reviewed the record at trial, I am satisfied that it was open to the jury - in the sense discussed by the High Court in M v The Queen [108] and the cases referred to in the joint reasons at [225]-[228] - to be satisfied beyond reasonable doubt of the applicant's guilt in relation to the offence of wounding with intent to inflict grievous bodily harm.
2. Despite the obvious problems with the identification procedure and the evidence adduced from the victim, AA, the circumstantial case supporting the case that the applicant was one of the three men present at the time of the stabbing was very strong. He had motive and opportunity, was acting aggressively towards the victim at the train station shortly before the stabbing, was a passenger in the BMW from which the assailants emerged, and conducted himself after the incident in a way that almost certainly betrayed a consciousness of guilt.
3. In addition to those matters, the scarf found at the crime scene was similar to the item worn by the applicant shortly before the incident and the jury was entitled to consider that his explanation of its whereabouts (and tender into evidence in re-examination) was unconvincing. The applicant was examined in chief as follows: "Q. Did you have a scarf on at some stage in the evening? A. Yes, I did. Q. Did that scarf stay with you from when you left the station to when you took off, as you say, in the car down Wilga Avenue? A. Yes, yeah, my mum still has that scarf til now." [109]
4. The applicant was cross-examined as follows: "Q. I want to suggest that the scarf that you're wearing is the same scarf you were wearing when you had gone to the block at 20 26 Wilga Street at Fairfield, on this night? A. No, Miss That was Martin's scarf, my scarf is still here. Q. And that you had dropped this scarf on your way out? A. No, Miss, not correct. I still have my scarf, Miss. The police never seized it during the search, which was pretty suspicious. Q. You still have that scarf, do you? A. Yes, Miss. Q. Have you gone and got another scarf, or had your family get another scarf that looks similar, Mr Merza? A. No, Miss You would have heard on the phone taps, wouldn't you?" [110]
5. He was then re-examined on the issue: "Q. You were asked some questions about a scarf and you said you've still got the scarf that you were wearing on that night? A. Yes, your Honour. Yes. Q. I show you an item. Would you just take that out of the plastic bag and have a look at it for me please? A. Yeah. Q. Would you hold it up, please? What do you tell the members of the jury about that item that's in your hands?" A. It's my scarf, they never ceased [seized] it from the police raid, they left it out, so it could suit their case, because they found the scarf, mine and Hana's scarf and they didn't seize my scarf for that. Q. Were you wearing that scarf on the night in question? A. Yes, I was." [111]
6. At this distance, the applicant's evidence appeared to be implausible on a number of levels and did not withstand scrutiny.
7. The verdict of guilty on count 2 was not unreasonable and was able to be supported having regard to the evidence. I agree with Basten JA and Price J that ground 2 must be rejected.

The appeal against the sentence imposed by Judge O'Brien

1. The applicant was sentenced by Judge O'Brien on 15 February 2019 in relation to drug, proceeds of crime, and criminal group offences that were unrelated to the wounding and perversion of justice offences. His Honour imposed an aggregate sentence of 4½ years with a non-parole period of 3 years. The sentence commenced on 15 February 2017 and the non-parole period expired on 14 February 2020.
2. This sentence was the subject of a separate application for leave to appeal and the applicant was represented by different counsel. The appeal hearing was extremely brief and it was accepted that the exercise was somewhat academic because the non-parole period had already expired and did so after the commencement date of the sentence imposed by Judge Colefax in relation to the wounding offence.
3. I agree with Basten JA and Price J, for the reasons given at [250]-[254] that there was a legal error in the sentencing Judge's assessment of the applicant's objective criminality. I also agree, that no lesser sentence is warranted, and the appeal should be dismissed in spite of the error.

The appeal against the sentence imposed by Judge Colefax

1. After the trial to which the conviction appeal relates, Judge Colefax SC imposed an aggregate sentence of 12 years with a non-parole period of 9 years. The indicative sentences for the purpose of s 53A(2)(b) were 10 years with a non-parole period of 7½ years for the wounding offence and 3½ years for the offence of attempting to influence the witness. No issue was taken with the total length of the aggregate sentence (12 years) or with the putative sentences indicated for the two individual charges. The proposed appeal against sentence was solely concerned with the length of the (aggregate) non-parole period and the failure of the sentencing Judge to consider or find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999.
2. The sentence was ordered to commence on 26 September 2019 which meant that it was accumulated (in part, and by the extent of around 2 years and 7-8 months) on the sentence imposed by Judge O'Brien. As I have said, the earlier sentence commenced on 15 February 2017 and included a non-parole period of 3 years. The effect of the order made by Judge Colefax was that the total accumulated sentence was around 14 years and 7½ months with a total accumulated non-parole period of around 11 years and 7½ months. That means the total effective non-parole period was around 80% of the total accumulated sentence.
3. As the joint reasons point out at [242]-[243], there is no obligation under s 44 or otherwise for a sentencing Judge to vary downwards a non-parole period so that it is 75% of the total sentence. A finding of "special circumstances" is only required if the balance of term is to exceed one third of the non-parole period. This is well established, including by authorities decided under earlier sentencing legislation in similar terms to s 44: see, for example, R v GDR (1994) 35 NSWLR 376 at 381-382. It is equally well established that the impact of accumulation may amount to special circumstances and justify a reduction of the non-parole period so that it is in the order of 75% of the total sentence: see, for example, R v Simpson (1992) 61 A Crim R 58 at 60-61, R Close (1993) 31 NSWLR 743 at 748, Matthews v R [2014] NSWCCA 185 at [27] and GP v R [2017] NSWCCA 200.
4. In McKittrick v R [2014] NSWCCA 128, Simpson J (as her Honour then was) said at [36]-[37]: "This has come to be called the 'statutory ratio', which is not to be departed from unless special circumstances are found. The effect of s 44(2) is that a sentence in accordance with 'the statutory ratio' will be made up of a non-parole period that is 75 per cent of the head sentence. Where the court decides to impose a non-parole period in a lesser proportion, it is required to state its reasons for doing so. There is no equivalent requirement for reasons where the non-parole period exceeds 75 per cent of the head sentence. Nevertheless, it is usually considered appropriate that reasons be given for such a decision."
5. Her Honour discussed the history of the provision and referred to the second reading speech introducing the 1989 legislation. Her Honour said at [42]: "Nowhere in the speech was any explanation given for the selection of 75 per cent as the proportion of the overall sentence required to be served in custody (other than to meet an election promise). What is plain is that the intention was that the proportion should apply, in cases of multiple offending, to the overall sentence, that is, the total of the sentences imposed. The structure of individual sentences is, at most, a secondary consideration."
6. Adamson J said at [154]: "The statutory prohibition in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on structuring a sentence such that the ratio is smaller than the statutory ratio unless special circumstances are found requires reasons to be given for any such finding. There is no requirement for reasons to be given when the ratio between the non-parole period and the total term exceeds the statutory ratio. However where reasons are not given for the excess, there is at least an implication that the Sentencing Judge has not appreciated the mathematical effect of two sentences on the overall ratio. I am satisfied that this is what has occurred in the instant case."
7. In Lonsdale v R [2020] NSWCCA 267, Beech-Jones and Adams JJ considered the issue at [65]-[66]: "[65] Section 44(2) of the Sentencing Act has no direct application to any analysis of a total effective sentence that results from the operation of two or more sentences. Nevertheless, it is common to make a finding of special circumstances under s 44(2) to ameliorate the effect of accumulating sentences that would otherwise result in the ratio of the 'effective' non‑parole period exceeding 75% of the effective total term (see GP v Regina [2017] NSWCCA 200 at [16]; 'GP v R'; CM v R [2020] NSWCCA 136 at [35]; 'CM v R'; R v Simpson (1992) 61 A Crim R 58 at 60-61.) Further, it has been accepted that it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose where the ratio of the effective non-parole period exceeds 75% of the total effective term (McKittrick v R [2014] NSWCCA 128 at [154]; GP v R at [22]). In such cases, the question is "whether the record of proceedings leads to an inference that the matter was considered or adverted to or not" (GP v R at [22]). Thus, in CM v R it was concluded that the sentencing judge did not intend 'a result which would require the applicant to spend 87.5% of the "effective" term of imprisonment in custody' (at [40]). [66] However, these principles are not hard and fast rules. Their application in a given case involves matters of degree. In this case, the ratio of the effective non-parole period to the effective total sentence was 76.47%. The sentencing judge considered questions of both totality and special circumstances at length. In those circumstances, we do not accept that his Honour failed to consider or advert to the very modest amount by which the accumulation of the two sentences meant that the effective non-parole period exceeded 75% of the total effective term. Otherwise, given the trivial amount by which it was exceeded in respect of the accumulated sentences, no obligation to "flag an intention … to do so" was engaged."
8. The reference to GP v R is a reference to my judgment where I said at [22]-[23] (Macfarlan JA and Button J agreeing): "[22] Ultimately, the parties agreed that the question is whether the record of proceedings leads to an inference that the matter was considered or adverted to or not. Ordinarily, where a sentencing judge is accumulating sentences and the non-parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation. That was not done in this case. Both the transcript and the judgment on sentence are silent on the issue. There is a discussion of the principle of totality both in submissions and in the remarks on sentence. It is clear that her Honour appropriately and properly applied such principles in assessing the degree of accumulation in terms of the total effective sentence. [23] However, there is nothing to support the inference that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period. In particular, her Honour made no remark concerning the fact that the proportion settled upon by Judge Payne (62.5%) would, as a result of the accumulation, become 81.5%. Equally, there is nothing in the arguments or in the remarks on sentence to suggest that her Honour considered the fact that the 3 year balance of term settled upon by Judge Payne would be reduced to 2 ½ years upon the accumulation of the sentence.
9. See also Huang v R [2019] NSWCCA 144 at [52]-[53], Zreika v The Queen [2020] NSWCCA 345 and Vincent v R [2020] NSWCCA 271 at [64]-[66].
10. The sentencing Judge in the present case did not indicate that he had turned his mind to the impact of the accumulation on the proportion of the non-parole period to the total sentence. His Honour's remarks included the following: "[71] I note that since the time you were arrested, you have served various other terms of imprisonment for totally unrelated matters. [72] Accordingly, the sentence which I shall impose will be backdated so as to commence on 26 September 2019. [73] In fixing that start date, and in fixing the aggregate sentence, I have had regard to totality."
11. Unlike the majority, I am unable to conclude that these remarks demonstrate that his Honour considered the matter or that he did not overlook the possibility of making a variation to the non-parole period. There is no further explanation as to the choice of commencement date, no reference to the question of special circumstances, and no elucidation as to how his Honour "had regard to totality". Most significantly, as I have said, there was nothing to suggest his Honour adverted to the impact of the accumulation of the proportion between the total sentence and the non-parole period.
12. As to the commencement date, a footnote to the respondent's written submissions was in the following terms: "The basis for the calculation of the commencement date was as follows: as at the date of the sentence proceedings, 3 April 2020, the applicant had been I custody since 20 September 2016 (a period of 1291 days). Of that period, 1101 days were spent serving sentences of imprisonment for unrelated offences. It followed that the applicant had been in custody on this matter alone for a period of 190 days. The sentence date of 26 September 2019 reflected the backdating of the sentence by 190 days."
13. If this is correct, it demonstrates that the selection of the commencement date did not reflect the application of the principle of totality but the necessary back-dating of the sentence to take into account pre-sentence custody that the parties agreed was solely referable to the offences to which the sentence related.
14. While it is true that neither counsel at first instance referred to the issue of the accumulation, special circumstances or the impact on the proportion of the non-parole period to the head sentence, I am satisfied the applicant has established error.
15. Senior Counsel for the applicant did not submit that any further adjustment should be made to the sentence and did not contend that the total aggregate sentence or the indicative sentences were infected with error.

Orders

1. Accordingly, the orders I favour are as follows: 1. Where necessary grant leave to appeal against conviction, but dismiss the appeal. 2. Grant leave to appeal against the sentence imposed by O'Brien DCJ on 15 February 2019 but dismiss the appeal. 3. Grant leave to appeal against the sentence imposed by Colefax DCJ on 15 May 2020 and allow the appeal. 4. Quash the sentence imposed by Colefax DCJ and in lieu thereof impose an aggregate sentence of 12 years commencing on 26 September 2019 and expiring on 25 September 2031 with a non-parole period of 8 years and 3 months expiring on 25 December 2027. 5. Confirm the indicative sentences nominated by Colefax DCJ. 6. The applicant will be eligible for release to parole at the expiration of the non-parole period.

Endnotes

1. The applicant's first name is subject to different spellings: this is his spelling as appears in his ERISP.
2. Phone intercept transcript, 28/09/2016, p 5.
3. Phone intercept transcript, 5/10/2016, p 4.
4. It was not clear if "LC" were initials, or a name misunderstood on transcription.
5. Tcpt, 8 October 2019, p 520(40).
6. Summing up, 17 October 2019, pp 31-32.
7. Summing up, p 36.
8. (1990) 170 CLR 573 at 579 citing Wigmore on Evidence; [1990] HCA 56.
9. (1993) 178 CLR 193 at 210; [1993] HCA 63.
10. Applicant's Speaking Notes, par 3.
11. Tcpt, 19 July 2021, p 11(43)-(45).
12. Applicant's Speaking Notes, par 8.
13. Applicant's Speaking Notes, par 14.
14. Applicant's Speaking Notes, par 14.
15. Applicant's Speaking Notes, par 15.
16. Tcpt, 19 July 2021, p 15(33)-(35).
17. Tcpt, 2 October 2019, p 336(35).
18. Tcpt, 23 September 2019, p 13(11)-(30).
19. Tcpt, 23 September 2019, p 6(5)-(6).
20. Tcpt, 23 September 2019, p 11(7)-(10).
21. Tcpt, 23 September 2019, p 18(46)-(47).
22. Tcpt, 23 September 2019, pp 16(40)-17(21).
23. Tcpt, 24 September 2019, p 45(39).
24. Tcpt, 24 September 2019, p 48(29)-(32).
25. Tcpt, 24 September 2019, pp 52(50)-53(1).
26. Tcpt, 25 September 2019, p 91(30).
27. Tcpt, 25 September 2019, p 97(16)-(18).
28. Tcpt, 25 September 2019, p 97 (26)-(30).
29. Tcpt, 1 October 2019, p 273(28)-(30).
30. Tcpt, 1 October 2019, p 273(32)-(34).
31. Tcpt, 1 October 2019, p 273(42)-(43).
32. Tcpt, 1 October 2019, p 274(18)-(19).
33. Tcpt, 1 October 2019, p 276(46)-(49).
34. Tcpt, 1 October 2019, p 277(28)-(41).
35. Tcpt, 1 October 2019, p 278(39)-(41).
36. Tcpt, 1 October 2019, p 278(43)-(46).
37. Tcpt, 1 October 2019, pp 278(48)-279(5).
38. Tcpt, 1 October 2019, p 279(15)-(20).
39. Tcpt, 1 October 2019, p 279(25)-(29).
40. Tcpt, 1 October 2019, p 280(26)-(30).
41. Tcpt, 1 October 2019, p 280(34)-(39).
42. Tcpt, 1 October 2019, p 283(1)-(2).
43. Tcpt, 1 October 2019, p 283(9)-(11).
44. Tcpt, 1 October 2019, pp 281(27)-282(22).
45. Tcpt, 25 September 2019, p 107(35).
46. Tcpt, 26 September 2019, p 132(43).
47. Tcpt, 26 September 2019, p 152(34)-(37).
48. Tcpt, 30 September 2019, p 181(42)-(43).
49. Tcpt, 30 September 2019 p 182(38).
50. Tcpt, 30 September 2019, p 184(12)-(16).
51. Tcpt, 30 September 2019, p 196(38)-(41).
52. Tcpt, 30 September 2019, p 193(25)-(26).
53. Tcpt, 30 September 2019, p 201(43)-(45.
54. Tcpt, 30 September 2019, p 206(9).
55. ERISP 20/9/16, p 6.
56. Tcpt, 2 October 2019, pp 302(47)-303(7).
57. Tcpt, 8 October 2019, p 465(22).
58. Tcpt, 8 October 2019 p 465(32)-(34).
59. Tcpt, 8 October 2019, p 471(22)-(28).
60. Tcpt, 1 October 2019, pp 248(49)-249(7).
61. Tcpt, 1 October 2019, p 249(48).
62. Tcpt, 1 October 2019, p 252(33).
63. Tcpt, 1 October 2019, p 254(13)-(15).
64. Tcpt, 1 October 2019, p 260(26)-(28.
65. Tcpt, 1 October 2019, p 262(5)-(6).
66. Tcpt, 1 October 2019, p 266(23)-(25.
67. Tcpt, 3 October 2019, p 363(39)-(41).
68. Tcpt, 3 October 2019, p 363(43)-(45).
69. Tcpt, 3 October 2019, p 363(47)-(49).
70. Tcpt, 3 October 2019, p 364(5)-(8).
71. Tcpt, 3 October 2019, p 365(10)-(11).
72. Tcpt, 3 October 2019, p 366(34)-(37).
73. Tcpt, 3 October 2019, p 368(19)-(22).
74. Tcpt, 3 October 2019, p 379(12)-(14).
75. Tcpt, 3 October 2019, p 382(20).
76. Tcpt, 8 October 2019, p 489(22)-(26).
77. Tcpt, 8 October 2019, p 489(34).
78. Tcpt, 8 October 2019, p 490(3)-(6).
79. Tcpt, 8 October 2019, p 490(18)-(21).
80. The person also referred to as "LC": see [15] above
81. Tcpt, 8 October 2019, p 494(41).
82. Tcpt, 8 October 2019, p 497(25).
83. Tcpt, 8 October 2019, p 497(42)-(47).
84. Tcpt, 8 October 2019, p 498(7)-(10).
85. Tcpt, 8 October 2019, p 500(15)-(18).
86. Tcpt, 8 October 2019, p 504(35)-(37).
87. Tcpt, 8 October 2019, p 510(8)-(11).
88. Tcpt, 8 October 2019, p 512(10).
89. Tcpt, 8 October 2019, p 528(42)-(43).
90. (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14].
91. (2016) 258 CLR 308; [2016] HCA 35.
92. (2020) 268 CLR 123; [2020] HCA 12.
93. Summing up, 17 October 2019, p 18.
94. Summing up, 17 October 2019, p 18.
95. Summing up, 17 October 2019, p 18.
96. See [178] above.
97. See [69] above.
98. (2014) 252 CLR 601; [2014] HCA 37 at [42].
99. (2006) 66 NSWLR 566; [2006] NSWCCA 242.
100. McNaughton at [16].
101. (1989) 167 CLR 348; [1989] HCA 33.
102. Hoare at 354.
103. (1988) 164 CLR 465 at 472, 485-486, 490-491, 496; [1988] HCA 14.
104. Veen [No 2] at 472
105. Veen [No 2] at 477-478.
106. Sentencing Procedure Act, s 54A(2) as enacted.
107. See, eg, R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [85]-[86]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27], [31], and their progeny.
108. M v The Queen (1994) 181 CLR 487; [1994] HCA 63.
109. Trial tcpt, 08/10/19, p 497.
110. Trial tcpt, 08/10/19, p 519-520.
111. Trial tcpt, 08/10/19, p 528. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2021