MG v R;; AE v R [2016] NSWCCA 228 | Case summary

Judgment

HOEBEN CJ at CL: Offences and sentence On 1 October 2014 the applicants, MG and AE, pleaded not guilty to the murder of ED (the deceased). The trial before Hall J was heard with that of SB. The jury retired to consider its verdicts on 12 November 2014. On 21 November SB and AE were convicted of murder.
His Honour gave a Black direction in relation to MG shortly after midday on 21 November. On 25 November 2014 the jury indicated in a note that it was unable to reach a unanimous verdict. His Honour directed the jury in accordance with s 55F of the Jury Act 1977 that they might return a majority verdict. On 26 November 2014 MG was found guilty by majority verdict of murder pursuant to s 18 of the Crimes Act 1900.
MG was sentenced on 1 May 2015 to imprisonment with a non-parole period of 8 years commencing 25 November 2014 and expiring 24 November 2022 with a balance of term of 4 years expiring 24 November 2026.
On the same day his Honour sentenced AE to a term of imprisonment with a non-parole period of 8 years commencing 20 November 2014 and expiring 19 November 2022 with a balance of term of 4 years expiring 19 November 2026.
Three co-offenders - JP, JH and AN - were convicted of manslaughter in respect of ED. JP and JH were convicted following separate trials. AN was charged with murder but the Crown accepted his guilty plea to manslaughter.
MG and AE have appealed against their conviction for murder pursuant to s 6(1) of the Criminal Appeal Act 1912.
MG relies upon the following grounds of appeal: Ground 1 - The verdict of guilty was unreasonable and could not be supported having regard to the evidence. Ground 2 - His Honour erred in directing the jury in relation to extended joint criminal enterprise for murder. Ground 3 - In his directions on circumstantial evidence his Honour erred in failing to direct the jury that it was indispensable to a conclusion of guilt that: (a) The applicant wore the Lonsdale jumper at the time of the attack on ED; and (b) The applicant knew that JP had in his possession and intended to use the green bottle to assault ED.
AE relies upon the following grounds of appeal: Ground 1 - The jury's verdict was unreasonable and cannot be supported having regard to the evidence. Ground 2 - His Honour erred in not giving appropriate directions to the jury concerning evidence of the identification of AE. Ground 3 - His Honour erred in not giving appropriate directions to the jury concerning joint criminal enterprise. OVERVIEW OF CROWN CASE
The Crown case was that a group of six young men, being the applicants, JP, JH, AN and SB, attacked ED at a Halloween party at Bossley Park on 30 October 2010, at some time between 8.18pm and 8.40pm.
The group, which called itself the "Wakeley Boys" arrived uninvited to look for the "Campbelltown Boys" but were unable to find them. The deceased was at the front of the house when at least one member of the group recognised him and called out to him. At some time between 8.23pm and 8.40pm the deceased approached the group and JP removed the deceased's hat. At that moment one member of the group punched the deceased in the face and the deceased fell to the ground. The group of boys then proceeded to assault him and very early on in the attack, JP smashed a glass bottle over the deceased's head. The attack by the group happened very quickly - in the order of about 5 - 10 seconds.
The deceased managed to get up and run away. SB and AE gave chase but the deceased outran them. The group then got into a red car and drove off before returning to the party later that night to look for a knife. The deceased was found unconscious one and a half hours after the attack, lying at the side of the house. He remained in a coma until he died on 5 November 2010.
The group of boys returned to the party approximately one hour later. Two of them, AE and JH, can be seen at the party in a photograph taken when they returned (Exhibit S).
The Crown case was that the fatal blow was caused by JP smashing a bottle over the deceased's head. According to the pathologist, Dr Wills, who performed a post mortem examination, the deceased died as a result of a head injury. Dr Wills said: "Several sites of impact were present within the head and neck, one of which on the top of the head showed incised and bruised components."
His opinion was that the deceased's injuries were indicative of an "assault involving several points of blunt impact to the head and face and additional sharp force injury". He said that the wound on top of the deceased's scalp could have been caused by a bottle being struck over his head. The deceased also sustained bruising to other parts of his body. The bruising to his lower limbs may have related to direct impacts and/or contacts with objects, including while stumbling and falling.
The Crown relied on the concepts of joint criminal enterprise and extended joint criminal enterprise. The Crown contended that an agreement to assault or inflict grievous bodily harm on the deceased could be inferred from the group's behaviour. The Crown case was that the way in which the group surrounded the victim, outnumbered him and wielded weapons demonstrated a shared understanding that they would attack him.
The Crown case was that JH thought that the deceased was a "snitch". The deceased had previously given evidence to the police about an incident in which he was robbed and bashed by a group of men, one of whom was JH. JE, who knew both the deceased and JH at the time, gave evidence that the deceased had been labelled a "snitch" as a result of giving evidence to the police.
The Crown case was that witnesses saw MG and AE at the party. Furthermore, although no witness identified him as participating in the attack, there was forensic evidence linking MG to the attack. There was eyewitness identification linking AE to the attack. EVIDENCE AT TRIAL
All the evidence at trial was called by the Crown. Neither MG nor AE gave evidence.
There was uncontroversial evidence that the deceased had on a prior occasion given evidence to police in relation to an incident where he was robbed and assaulted by a group of males, one of whom was JH. The assault and robbery occurred in February 2010. There was evidence that in August 2010 JH had said "I still haven't got him. I'm still going to get him back." This was a reference to the deceased. It was the Crown case that JH held the opinion that the deceased was a "snitch". Before the assault
A young woman, BT, hosted the Halloween party at Restwell Road, Bossley Park on 30 October 2010. She received notification on Facebook that someone purporting to be from the "Campbelltown Boys" wrote on her event page that they were going to bring drugs to her party. She did not want this to happen and spoke to a friend who said that he would deal with it. It transpired that the friend spoke to the "Wakeley Boys" who attended the party to deal with the "Campbelltown Boys".
BT gave evidence that 10 - 12 boys arrived at the party uninvited. When she asked if they were the "Wakeley Boys", they replied "Yes". BT told them that she did not want any trouble and that the "Campbelltown Boys" were not coming to the party. She said that most of the group were wearing Nike hats and bum bags, white shirts and white tracksuit pants, although one of them stood out because he was wearing a red shirt. After she spoke to them, BT said that she did not see them again that night.
MH, another young woman, saw a group of 15 boys of Middle Eastern appearance arrive at the party. They were swearing and generally being loud and rowdy. She recognised JH and told him not to come to the party and "disrespect the house". JH told her to "Shut the fuck up". She later saw BT talk to the boys and tell them not to fight there but to take the fight somewhere else.
LM was standing at the top of the driveway when he saw a group of 7 - 10 boys of Arabic background at the front of the house. He heard them ask for the "Campbelltown Boys". He observed that one of them was holding a metal pole which he described as a dumbbell/barbell without the weights. (There was frequent reference to a "pole" in the evidence. That would appear to be a reference to a metal bar having the approximate dimensions described by LM.)
KC went to the Halloween party in a gladiator costume. He was in the kitchen when he saw a group of six boys enter the house. They were acting in an aggressive manner and one of them was holding a pole. They asked him whether he was from Campbelltown. He saw them go into the backyard and ask other males at the party if they were from Campbelltown. He described the group as being of Middle Eastern and Assyrian background, dressed in jeans, sneakers and jumpers.
JE arrived at the party with the deceased. He saw a group of more than five boys at the front door looking for people from Campbelltown. He recognised JH as a member of this group since JH was a friend of his. The group was behaving in an aggressive manner. They were of Middle Eastern appearance, of average height and were wearing athletic clothing. He said that the colour blue was stuck in his mind with regard to their clothing generally. He watched as the group made their way around the backyard asking about people from Campbelltown.
JT was in the backyard when a group of five to seven males arrived at the party. The group was standing at the back door and were being loud and disruptive. He recognised one of the males, JH, because he knew him from school in the year above him. The group were all wearing similar clothing, specifically Adidas hoodies. The boys were of Assyrian background. He knew this because he had socialised with Assyrian people. He heard one of them say that he was looking to hit Assyrian Arabs and also heard them ask people if they were from Campbelltown.
AM saw a group of about ten males of Assyrian background. One of the group called out "Who's Campbelltown?" and the rest looked like they were going to start trouble.
LDM saw a group of six to eight Assyrian males arrive at the party. He recognised JP because they were acquaintances. JP and the rest of the group were wearing dark clothing. JP was wearing a dark jumper and also carried a bum bag.
GE was inside the house when he saw a group of five males of Middle Eastern appearance enter the house. They were all wearing similar clothing - hoodies and dark coloured clothing. Two of the males approached him and one of them asked if he was from Campbelltown. One of them held a knife pointed towards him. The person holding the knife was wearing dark clothing, possibly black, with a hood and tracksuit pants. The knife was about 20cm long. (A knife matching this description was subsequently located by police in the backyard of the house.) GE was with KC when he saw the knife. He also saw someone carrying a pole which was about 70cm long. The person carrying it was holding it next to his leg trying to conceal it.
HAH saw a group of eight to ten males in the backyard asking if anyone was from Campbelltown. They were all dressed in similar clothing, i.e. tracksuit pants and jumpers. They were aggressive. The group then went to the front of the house. Subsequently one of them, JP, whom HAH knew from primary school, came back, grabbed an empty green wine bottle from the backyard and took it with him to the front of the house. JP tried to conceal the bottle by carrying it under his right arm, down by his leg. HAH saw BT when she went to speak to the group. He also saw that one of the boys in the group had a pole in the left pocket of his tracksuit pants. It was the size of a 30cm ruler, if not larger. It was silver or silver white. He was trying to conceal it with his hands.
JD saw five young males get out of an old green car. She knew two of them - JH and JP. JP was wearing a black hoodie and was carrying a black bum bag over his shoulder. JH was wearing a white Adidas jacket and three quarter pants. He was also holding a brown wooden stick. As he walked into the house JH said "Let's go have some fun boys". She did not recognise the other three males but said that one of them was wearing a white t-shirt with no writing on it and shorts. Another was wearing a blue t-shirt and carrying a black jumper. These three were each carrying a pole.
PP was at the front of the house when he saw a group of nine or ten Middle Eastern boys barge through the door. They were loud and were banging on the front door. He only saw one weapon which he described as "one piece of a car steering lock" about 60 cm long, black or silver in colour. He thought the group was looking for trouble and that one of them was asking if there were any Campbelltown boys at the party.
BT was in the backyard when he noticed a group of over five boys arrive. One of them asked him if he was from Campbelltown and he saw that other members of the group were asking the same question of other people in the backyard. They were wearing a similar type of clothing - sloppy joes and Nike shoes. One of them was wearing a white sloppy joe with writing on the front.
Two of the young women present at the party, CO and JD, took photographs during the night. These photographs formed part of Exhibit R. The assault
At the time of the assault on the deceased, a number of the party goers were at the front of the house. The evidence relating to the number of people in front of the house ranged from 20 to 50. The assault itself took place over a short period of time - between five and ten seconds.
LM gave evidence that he was standing with some friends on the footpath out the front when he heard someone from the group of young Middle Eastern men say "He's the one with the piercings, with all the piercings on his face". About a minute later he heard one of the group call out "Come here, you fat cunt". At the time, he was facing the road and did not see to whom the comment was directed. About a minute later, while he was still facing the road LM heard what sounded like a slap.
After hearing the slap, LM turned around and saw that the group had "circled" the deceased who was on one knee. There were six or seven people surrounding the deceased. They were the same people he had seen arrive at the party earlier. He saw one of the group hit the deceased over the head with a bottle, and saw it shatter. LM did not see any other weapon used in the assault. He then saw about seven of the group punch and kick the deceased. The assault lasted between five and ten seconds. The deceased got up and ran down the street. LM was standing about one - two metres from the group while the assault was happening.
LM saw one of the group pursue the deceased and continue to assault him for a short period of time. He described this person as stocky/large, with black hair and wearing a black shirt and shorts. This person was not armed. He saw the majority of those involved in the assault, five or six of them, run to an old, red station wagon and get in. The car then took off in the same direction as the deceased. LM and a couple of his friends went to look for the deceased, but could not find him. LM was not able to say whether every member of the group was directly involved in the assault because he only saw what was happening after he turned around following the initial slap sound.
TM was standing out the front talking to LDM when he heard a bottle smash. He turned around to see a group of men kicking and stomping the deceased. There were about ten or fifteen males in the group and they were standing in a "circular formation" around the deceased. The kicks and stomps were aimed at the deceased's torso and legs. The assault lasted about five to ten seconds. One of the males in the group was fat and was wearing a red t-shirt, and another was wearing a black jacket.
TM saw the deceased eventually get up and run down the road. He was chased by a male wearing a hoodie who hit him twice in the back of the head with a pole. He described the male as having short black hair and short facial hair. He was skinny and about 185cm tall. The pole was silver, made of metal and about a metre long. After striking the deceased, the male turned back and ran towards Boronia Road. The other members of the group followed him into the road. TM said that he had seen four of the persons who were in a circular formation around the deceased, at the back of the house earlier in the night. He recognised JP as one of the males.
BJ was also at the front of the house with LDM when he heard someone call out "Come over here, you fat cunt". He heard a bottle smash and then looked over to see a fight happening. The attackers were standing "all around" the deceased on the footpath. One of the attackers was holding a metal pole which was about 30cm long. It looked like a dumbbell without the weights. He did not see anyone use the pole.
BJ saw persons punching and kicking the deceased who was on the ground. They were bending down and crouching over him. He was unsure how many people were involved in the assault but estimated around eight or 10 persons. He saw the deceased get up and run up the hill and the other males scatter in different directions. He did not see the deceased being chased but saw some people from the party run after him. When asked in cross-examination whether some of those persons present were not physically involved in the assault, he said that he was not sure "but from what I seen there was a lot of people laying into him and kicking him" (T 396.17). He described the attackers as wearing dark Nike brand clothing and some of them were wearing caps.
CO gave evidence that she was about to leave the party at 8:30 or 9:00pm when she heard "a few guys screaming" just behind her. She turned around and saw a male with a bottle and he was "throwing it down … in a downwards direction, I don't know if he actually let go of it or not". She did not see the bottle strike anyone but heard it smash (T 428.22). She saw the deceased crouching on the ground with his hands over his head, and the attackers leaning over him. She recalled about seven or eight people, but only three or four of them were involved in the violence.
CO only had a clear view of the male with the bottle but thought that the other attackers were kicking and punching the deceased. Before he was hit with the bottle, she saw the deceased being assaulted by three or four people. The main aggressors were the male holding the bottle and the two males on either side of him. Some of the males in the group looked like they were trying to help the deceased, and were pushing the other males away. She described the male with the bottle as wearing a white shirt, or light blue or light green shirt with dark pants.
CO saw the deceased being chased by a few guys, but only two of them looked like they wanted to hurt him. One of the guys chasing the deceased was wearing a white hoodie. She saw him go up the road after the deceased, then cross the road and run the other way. She believed that he was the one she had earlier seen with the bottle. The other guy was wearing a dark blue or black shirt and was holding a metal pole. KC and AS were two of the males she saw trying to help the deceased.
LDM heard arguing and then turned around to see who it was. He was standing about one and a half metres from a group which was standing near a truck. He then heard a smash and turned around again to see a group of six or eight males in a "circle formation" around the deceased who was on the ground. The males were punching and kicking the deceased. One of the males had a pole (which he described as a shopping trolley handle) and was raising it and then lowering it towards the deceased. He did not see whether the deceased was struck by the pole. The deceased managed to get up and run towards the park. The person with the pole chased him. He was not able to say that all the people standing around the deceased were punching and kicking him.
JE gave evidence that he was standing on the footpath at the front of the house with ELD. The group of boys he had seen earlier were also at the front. When the deceased came out, he warned him that JH's group was at the front and that he should go back inside. When the deceased was walking back to the house, one of the group called out "hey fatty". The deceased then walked to the group and one of them asked him about his hat to distract him from the others who were crowding around him in a semi-circle formation. At that point someone else struck a big blow to the right side of the deceased's head. Following that first blow, JE saw "a barrage of hits and kicks and punches" (T 643), and heard a bottle smashing, although he did not see the bottle come down on the deceased. At the time, the deceased's head was down but he managed to get up and run away. JE saw the deceased run towards Cowpasture Road, and he was followed by three people. One of the three was wearing a blue shirt but he did not see that person do anything violent towards the deceased. He agreed that it was pretty dark when he made his observations.
JE said that about 20 people were standing in front of the house at the time of the assault, and that not all of those standing in the immediate vicinity of the assault were taking part. He saw only four of the males actually assault the deceased, but did not see their faces. He stated that JH was not one of the four. He described the violence as "very fierce" and having occurred "very quickly" - about 10 seconds.
Immediately after the assault JE observed the group searching for a knife. He then saw them walk towards a red car parked across the road. JE tried to contact the deceased by sending him a text message asking what had happened and to call back. In cross-examination, JE agreed that he had lied to the police about certain matters in his first statement, not in attempt to hinder police in their investigation, but because he was concerned for his safety. He gave a further statement because he saw a photograph of himself in the newspaper with the caption "Does anyone know who these people may be?". He also admitted lying in his second statement (T 709). He reiterated that his reason for lying was that he was afraid for his safety and that he did not want to be labelled a "snitch". He felt guilty for standing by while the deceased was assaulted.
ELD gave evidence that he was in the front yard with JE when he saw a group of four or five of the boys that he had seen earlier in the back yard. He heard one of the group say "Oh that's the guy that snitched", followed by "Eden" (the deceased's first name). ELD told the deceased not to approach the group, but the deceased did so. ELD identified the person who was holding a pole as SB. He also identified JP who was holding a champagne bottle. ELD saw SB hit the deceased on the head with the pole, and then saw JP smash the bottle across his head. He saw another male punch the deceased. The deceased fell to the ground, got up and ran towards Cowpasture Road. A couple of minutes later, ELD saw a red car speed off.
ELD saw only three of the persons in the group take part in the assault on the deceased. He did not see anyone running after the deceased, nor did he see anyone in a gladiator costume. He thought there were about 40 people in front of the house when he heard the group call out to the deceased. People were on the driveway, on the top section where he was standing next to JE (about 5 to 7 metres from the group), on the lawn area, the footpath and sitting on the retaining walls. He said that there were other people standing near the group who did not take part in the assault.
JZ was standing on the driveway when he heard one of the group call out "Hey Eden". JZ went to move down the driveway towards the deceased, but was grabbed by someone who held him back and told him not to get involved. He saw one of the group take the deceased's hat off his head. At this point another came from behind a truck and hit the deceased in the face. JZ saw the deceased fall "to the ground and I can't remember exactly but I remember two chubbier guys on his left and then they all ambushed him and they were all hitting him" (T 842). JZ said that only the two chubby guys were involved in stomping or kicking the deceased. The deceased managed to run away and one of the guys followed him and grabbed onto his jacket, and threw a few punches which connected with the back of the deceased's head. The rest of the group ran off once the deceased had run away.
The person who removed the deceased's hat was wearing a white hooded jacket and long pants. JZ said that there were 30 or more people at the front of the house at the time of the assault. He saw four or more males surround the deceased but agreed that in his statement he described only four as participating in the assault. He described the clothing of two of the people who assaulted the deceased - one was wearing a red top, and the other a yellow top. In addition to the four people, JZ said there was a fifth person and this was the person who chased the deceased. He described this person as wearing a white hooded jumper, he had dark skin and was of possible Arab background. JZ went to look for the deceased to see if he was okay but was not able to find him.
KC was standing in the middle of the driveway when he saw a group of six males exit the house and come out the front. He heard someone say the deceased's name and then saw the deceased and the group walking towards each other. There were about 15 to 20 people in the front yard before the assault commenced.
The first thing KC saw was a pole being swung like a baseball bat, but he did not see whether it hit the deceased. He described two separate altercations. The first took place at the bottom of the stairs and involved six to seven males punching and kicking the deceased. KC was standing about 10 metres away at the time. KC then moved from his position behind a car towards the deceased and his assailants. He saw the deceased break away from the group. Two of the males ran across the road. The deceased fell at the bottom of the driveway at which point the second altercation began which involved four or five males kicking and punching him.
The deceased got up again and started running but was pursued by two of the group, one of whom had a pole and was trying to hit him, while the other was trying to push him from behind. This second person was wearing a blue shirt.
KC gave evidence that he intervened and shoved the person with the pole as he was trying to hit the deceased with it, while the person in the blue shirt continued to try to push the deceased to the ground from behind. The only weapons KC saw were the bottle and the pole. He did not see whether the bottle hit the deceased.
In cross-examination, KC accepted that in the committal proceedings he stated that there were close to 20 people in the area during the assault, but maintained his evidence at trial that there were about 14. He agreed that he had told police that it could have been only three or four boys that were stomping on the deceased. He was not concentrating on the faces of the males who were assaulting the deceased. He agreed that his observations were limited - he was standing ten metres away and there were shrubs and trees within his line of sight. He also agreed that at the time of the assault there were a lot of things going on (T 1059 - 1061).
LDM gave evidence that he was standing about two metres away from where the assault took place. He heard arguing and turned to see what was happening when he heard a bottle smash. He saw a group of six to eight males in a circle formation, with the deceased on the ground. They were punching and kicking the deceased. He then saw KC and someone else run in and tell them to stop. The deceased got up and ran towards the park. LDM saw a male with a pole chase the deceased, as well as KC and others who ran after him to see if he was okay. He then saw the person with the pole run back down the opposite side of the road and turn into a street.
JT did not witness the assault but heard the sound of what he believed to be a bottle smashing, as well as a male and a girl scream. He then saw three people running - two towards Cowpasture Road, and one towards the Marconi Club in the opposite direction. This person was wearing white tracksuit pants. He could not tell who the people were because it was dark. Of the two people running towards Cowpasture Road, the person in front was about 170cm tall and wearing black, and the second one was skinny and was wearing a green hoodie. JT then saw the male in the green hoodie run back the other way in the direction of the person in the white tracksuit pants. He was unable to say if the second person was a member of the group he had seen earlier in the backyard, or whether either person was holding a weapon. JT saw a "reddish" station wagon drive fast in the same direction as the two males running towards Cowpasture Road. After the assault
A number of witnesses saw the group return after the assault. Numbers ranged from between 5 and 15 persons.
AC was standing on the veranda at the front of the house when the assault took place. She had heard a bottle smash and saw people running. She subsequently heard from someone that the deceased had been "bottled". She called the deceased to ask what had happened. She spoke to him and his voice sounded out of breath, like he was running. The deceased told her that he could not talk and he would call back. She tried calling him back but was unsuccessful. AC went to the backyard where she saw JE and ED. She told them what she had heard and asked them whether they had seen the deceased, to which they replied "no". When AC communicated with JE on Facebook the following week, he did not tell her that he had witnessed the assault, nor did ED in subsequent conversations.
After the assault AP saw a large group of boys standing on a paved area next to the sliding door in the backyard. From that group she recognised JP, AE and MG. She was able to do so because she went to the same school. She had not seen any of them earlier that night. She said that MG had a plaited pony tail with a shaved head.
SA was inside the house after the assault and saw the applicants AE and MG. She also saw JP and AN. It was about 9:30pm. She recognised them from school. She saw them dancing in a group of about 10 boys.
After the assault, KC changed out of his gladiator costume. He did that when the group returned to the party. Some of the group were asking for the person in the gladiator outfit.
GE gave evidence that when the group returned they were asking "Where's the gladiator fuckwit?"
LDM saw the same group of males about half an hour after the assault. JP approached him and asked for water as his hand was bleeding.
TM saw JP after the assault with a cut on his hand which was bleeding. He also saw the person who had chased the deceased and hit him with the pole. He was no longer wearing a hoodie and was wearing a white t-shirt with writing on it and black tracksuit pants. He was still carrying the pole.
JE gave evidence that when the group of boys returned to the party he socialised with JH. When the police arrived, he left the party with ED via a back alleyway.
JD saw the same group of young men who got out of the old green car, come back to the party after the assault. She said that the person who was originally wearing a blue shirt had changed into a green shirt, but was still carrying the black jumper. This person was identified as MG's brother. When the group came back to the party there were more than had originally arrived in the green car. One of them she identified as "AS" who was shown in the left corner of Exhibit AX. The other male in the right hand corner of the same photograph was AE. IDENTIFICATION OF THOSE INVOLVED IN THE ASSAULT
The persons involved in the assault were identified by a number of the partygoers as the applicant AE, JP, JH, AN and SB. The appellant MG was not identified by any of the eyewitnesses as having participated in the assault.
During the course of the investigation, a number of witnesses were shown a photograph from Facebook. The photograph became Exhibit S and was referred to as the "lady in the silver dress" photograph. This photograph was taken at 9:14pm after the assault had taken place. It depicted the appellant AE wearing a blue Champion brand t-shirt, JH, AS and JE. Upon his arrest, AE signed a copy of the photograph to acknowledge that he was depicted in it (T 1197).
KC first came across the photograph marked Exhibit S a week after the party and spoke to BT about it. He then took steps to find out the names of the people in the photograph including the applicant AE (T 1065, T 1071). (a) The applicant AE
JE was shown Exhibit S by police on 9 February 2011, and did not at the time identify AE as one of the persons involved in the assault. However, when he was shown that photograph at trial, he said that the person in the blue shirt was one of the four involved in the attack and who then chased the deceased "I just remember him assaulting the deceased and chasing him afterwards" (T 651-652.1). He maintained that evidence under cross-examination.
JE also identified AE from photograph 8 in the third array shown to him on 5 May 2011 (Exhibit BJ). With regard to that photograph, JE said that he looked "sort of familiar" and he was " pretty sure" that he saw the person at the party with the group of Middle Eastern boys (Exhibit BL at pp 4-5, T 659; T 723, T 725).
JE was questioned about the influence that Facebook had on his version of events. He stated that it only had the "slightest" influence and that it solidified the facts in his mind after hearing them from "a lot of different areas". The inquiries he made through Facebook did "not entirely" influence his evidence (T 721).
KC gave evidence that one of the males who chased the deceased and tried to push him was wearing a blue "Champion" brand t-shirt (T 984, T 986, T 994). The shirt had black and white writing on it. KC described the male as "a bit chubby". He also identified the male in the "lady in the silver dress" photograph (Exhibit S, Exhibit DU, photograph 23 in Exhibit R), and stated that he was one of the attackers who did the punching, kicking and stomping.
In cross-examination, KC agreed that in his first and second statements to police on 31 October 2010 and 14 March 2011, he described the "tubby" person as wearing a blue shirt with black detailing on the front. He did not describe it has having the "Champion" brand on it. At the committal hearing on 2 October 2012, he gave evidence that the writing on the shirt could have been black or white - he knew the shirt was blue but was not sure if it had any pattern on it. He denied making up the further description of the shirt, and stated that he did not know why he had not given police the full description.
KC participated in a photographic array procedure on 1 May 2011. He paused at a photograph of the applicant AE and said that he was not sure whether he was one of the group, but that he looked similar to one of them (T 1010). At the time he did not identify AE as having been a participant in the assault. In cross-examination he stated that he was confident that it was AE (T 1061, T 1064).
SA identified AE in photograph 12 of the fourth photographic array shown to her on 6 September 2011. She remembered seeing him at the party dancing in the group with JP (T 535, Exhibit AT). She also identified him in Exhibit AU as the boy wearing the blue Champion t-shirt.
AP identified AE in photograph 15 of the fourth photographic array shown to her on 6 September 2011. She stated that he was at the party with JP's group.
JZ identified AE from the photographic array shown to him on 30 April 2011. He said "I paused on him because he's chubby like the guy and the one that I could see, he was closer to me that was stomping on him and, I don't know, the one next to him looked similar, but not the same. Do you know what I mean?"(T 860 - 861). (b) The applicant MG
MG was not identified as one of the persons who participated in the assault by the eyewitnesses but he was positively identified as being at the party that night.
PP gave evidence that he saw MG with the group of Lebanese boys after the fight had occurred. He identified MG in a line-up on 20 May 2011. PP did not have any interaction with MG, and was not able to describe what he was wearing that night. He did not see the assault, and in cross-examination stated that he was 70 percent certain of his identification of MG.
JT identified MG in photograph 6 in the second photographic array shown to him on 4 May 2011. He said to police that he was 75 percent sure that the person in the photograph was the person that he had seen in the group as he looked "very similar". He stated that he had seen that person with JH around the area before and after the party. However, in cross-examination he stated that he could not be sure if MG was the person he had seen at the party, or only before and after the party. JT did not see the assault and could not recall what the person he thought might be MG was wearing.
LDM recognised MG in photograph 6 in the first photographic array shown to him on 19 May 2011 (Exhibit AL). He was not sure whether MG was a person he had seen at the party. He recalled that a person at the party had a rat's tail, but was not sure whether the person at the party was MG or his brother who also had a rat's tail. His evidence was that the person with the rat's tail was with the group of young Middle Eastern men at the party, but he did not know where this person was during the assault. LDM was unable to say what this person was wearing.
SA did not recognise any of the boys who were involved in the fight, or who were running away from it because she was talking to a girlfriend at the time, and did not realise what was happening. She had previously been in a relationship with JP and knew MG. She knew him because she had seen him around at school. SA gave evidence of having seen MG at the party at about 9:30pm when the group of boys returned. She saw him standing near a wall and taking turns dancing with the other boys in the group. She identified MG in photograph 19 in the fifth photographic array shown to her on 6 September 2011 (Exhibit AT, T 533-535). She did not know that MG had a brother, and said that she did not see anyone at the party that looked similar to MG and who might have been his brother.
AP gave evidence that MG was one of the males she saw amongst the group after the fight. She went to the same school as MG, who was in the year above her. She recalled that he had a shaved head with a small plaited ponytail at the back. She identified MG from photograph 2 in the fifth photographic array shown to her on 6 September 2011 (Exhibit BF). She was not aware that MG had a brother, and did not recall seeing anyone at the party who looked similar to MG. She was unable to say what MG was wearing at the party and did not know where he was at the time of the assault. MG's brother
MG's brother was present at the party. He is depicted in photograph 57 in Exhibit R. Both he and MG had rats' tails at the time. The investigating police officer gave evidence that his photograph was not included in the identification procedures shown to witnesses.
BT gave evidence that one of the people who arrived at the party, looking for the "Campbelltown boys", had dark brown shaved hair and a thick rat's tail and a stocky build. On 3 November 2011 he was shown a photograph from Facebook by police and recognised one of the people as the person he had seen with the long rat's tail at the party. The rat's tail was about 5cm thick and about 20 - 30cm long. This person was MG's brother. BT did not think that the person with the rat's tail was with the boys who returned to the red car.
JD identified MG's brother from Exhibit BB and photograph 57 in Exhibit R as one of the boys who came back to the party after the assault. She said that he was one of the people who jumped over the back fence when police arrived. In cross-examination she agreed that he was one of the people who arrived at the party with the original group and was wearing a blue shirt at the time. When he returned to the party after the assault, he was wearing a green shirt. Clothing identification
Witnesses at the party described the tops worn by members of the group who attended the party as follows: White - BT at T 222, JD at T 555 and ED at T 407. Black or dark - HAH at T 288, LDM at T 457 - 458, GE at T 488, JD at T 556 - 557, CA at T 931. Blue - GE at T 513, J at T 590, JE at T 634, KC at T 983. Red - BT at T 222.
Witnesses described the tops worn by those said to have been involved in the assault as follows: White - CO at T 438 - 439, ED at T 755, JZ at T 849, 881 and 875. Black or dark - HAH at T 288, JT at T 319, TM at T 369, 371, BJ at T 397, CO at T 440, 450, KC at T 1040. Blue - JE at T 651 - 652, KC at T 983 - 986. Red - TM at T 373, GZ at T 872. Green - JT at T 317 - 318.
Witnesses at the party described members of the group that returned to the party after the assault as wearing the following coloured tops: White - JD at T 561 - 562. Black - JD at T 561, CA - T 931. Blue - CA at T 933, AP at T 614 - 616. Green - JD at T 590 - 591, CA at T 933. The arrival of police, ambulance and the medical treatment.
Police attended the party at Restwell Road, Bossley Park at approximately 9.44pm and found the deceased lying on his back with his head resting on a gate which was closed. He was unconscious and struggling to breathe. Ambulance personnel arrived at approximately 10.46pm. The deceased was unconscious and having difficulty breathing. The airways in his nose were clotted with blood. He also appeared to be fitting or convulsing which was indicative of a head injury. The deceased was transported to Liverpool Hospital.
The deceased arrived at Liverpool Hospital at 11.30pm. On presentation he had a very low level of consciousness - no eye opening to any form of stimulus, no verbal response and no motor response. A CT scan revealed a subdural haematoma on the left side of the brain, between the scalp and the skull. The injury could have been caused by a blow from a hard blunt object, or fist, or foot to the head. The deceased never regained consciousness and was confirmed brain dead on 5 November 2011. DNA Evidence
A document entitled "DNA Evidence" was tendered and marked Exhibit H. The document outlined the findings relating to a number of items that became of interest in the investigation. (a) Grey Lonsdale jacket
A grey Lonsdale zip-up jacket was discovered on the driver's seat of the red car (photographs 17, 20, 43, 45, 47 & 20 in Exhibit D). The jacket was found to have two blood stains: the first on the front of the jacket, and the second on the waistband. The DNA recovered from both blood stains was the same profile as the deceased (T 185-186, Exhibit H).
DNA was recovered from the inside left wrist cuff and it had the same profile as the applicant MG. Traces of DNA from another individual were also recovered but at levels too low to determine a profile (T185 - 186, Exhibit H).
The forensic pathologist, Ms Collins, opined that the DNA matching MG on the grey Lonsdale jacket was more likely to have been directly transferred from him touching or wearing the jacket, rather than by secondary transfer. This occurs where another person or item has contact with the applicant's DNA and then transfers it onto the jacket.
The particular question and answer was: "Q … Given what was obtained from that trace or traces of DNA, are you able to give an opinion of the likelihood of it being a secondary transfer by reason of that result? A. Depending on the type of transfer that might be suggested, for example, there's several different types of secondary transfer, for example a wet blood stain is quite easily transferred. If I stick my finger in a wet blood stain and touch another item and the stain is wet then secondary transfer is very easy to do. Even it's a dry blood stain, the transfer is harder because of the nature of the stain itself, there's going to be less transfer and that's a blood stain which is a very rich source of DNA. If you're talking about trace DNA, or DNA from shed skin cells, that's a much poorer source of DNA so there's less DNA in that - I'll call it a stain, it's not really a stain, so the chances of actually transferring from an item a very small amount of DNA to another item, it gets harder the less DNA we're starting with. In this case the profile that we have recovered off the wrist cuff is mostly a single source profile so the transfer - there is one area of all of the ten areas that we looked at where there is one type which could be from another person so when we're talking about traces it is a very low level of traces. So the fact that it's a single source profile and the level of DNA that we have recovered is a pretty reasonable level of DNA, I would suggest it's more likely to be direct transfer from someone touching or wearing that area than would be from a second person having contact with DNA and then transferring it to that item. It's more likely to be the primary transfer but I certainly can't rule out the possibility, depending on the source, that that DNA turns out to be." (T 199.32 - 200.7) Ms Collins agreed that it was impossible to say how long the DNA had been present on the grey Lonsdale jacket. (b) Black cap
A black cap was found in the boot of the red car (photographs 29, 30, 38 and 39 in Exhibit D). Forensic examination revealed a DNA mixture originating from two main individuals. The DNA was recovered from the sweatband of the cap. The major component of the DNA had the same profile as the deceased, and JP could not be excluded as a contributor to the mixture. Traces of DNA from another individual were recovered but at levels too low to interpret. A blood stain on the front of the cap matched the DNA profile of JP. The red car
Around the time of the assault on the deceased, or a short time after, a number of people saw a red car. These included LM (T 238, T 242); JT (T 320); CA (T 921); ED (T 762); JE (T 648); and BT (T 412).
BT (a male), who had been at the Halloween party, lived three or four houses away. After police arrived and blocked off the street, he saw the same group of boys he had seen earlier that night hanging around what he thought was a red Toyota Camry, and then run off shortly after. He believed that they ran away when police blocked off the road. The person he had seen earlier in the white sloppy joe was with the group.
While at the crime scene, one of the investigating police officers was approached by a male. He was taken to Boronia Road where a red Toyota Camry station wagon was pointed out to him. The vehicle was photographed and seized by police. The police officer placed his hand near the front grill and felt heat emanating from it. RTA records showed that the red car was registered to Rayhana Hurmiz, who is the grandmother of the applicant MG. Police located two halves of a steering lock in the red car. One piece was in the front passenger's footwell, and the second was in the rear passenger's footwell.
When police spoke to Rayhana Hurmiz and Eddie Saffar (her son and the father of MG) about the car, they were told that Eddie Saffar had sold it to SH for $200 on 28 October 2010. On 18 November 2010, SH collected the car from police. He was in the company of SB and another male.
CCTV footage was obtained from KFC at Stocklands Mall, Wetherill Park, which showed the applicant MG, SH, JP and PB at the shop on 31 October 2010 at about 3:30pm (T 1407.39). Fingerprint evidence
A number of fingerprints were identified on the outside and inside of the red car, including those of the two applicants. The right palm print of AE was found on the outside of the car, on the pillar between the front offside window and windscreen. His left middle fingerprint was found on the outside on the front offside guard. His right palm print was found outside on the front bonnet edge. His right index fingerprint was found outside on the front bonnet edge. His left palm print was found outside on the front nearside window. Two right ring fingerprints and the left thumb print were found outside on the rear nearside window. The right thumb print was found outside on the rear nearside window. The right palm print was found outside on the rear nearside window. The right index middle fingerprint and left palm print were found outside on the rear offside window. The left thumb print was found on the rear vision mirror. The right palm print was found inside on the rear offside door frame area. A left thumb print was found inside on the rear nearside window. Two right thumb prints were found inside on the rear nearside window.
In relation to MG, the right middle fingerprint and right little fingerprint were found outside on the rear offside door. The left middle and left ring fingerprints were found outside on the rear offside door.
There were fingerprints of SB and AN found both outside and inside the motor vehicle. Recorded conversations between Police and the Applicants (a) The applicant AE First recorded conversation - 16 February 2011
On 16 February 2011, AE participated in a recorded conversation with police in the presence of his brother and his mother. In that interview he said the following: (a) He went to the party by himself and was dropped off at the party by his mother between 8:00 and 8:15pm. He was hoping to meet a couple of friends. (b) He did not see any of his friends there. (c) He had only been there for five or six minutes when he heard screaming and saw people running to the front of the house and he ran with them. (d) At the front of the house he saw two people running up the hill. (e) He heard people say that the cops were going to come so he called his mum on her mobile to come and pick him up. (f) While he was calling his mum he saw a red station wagon drive past him. People from the party were yelling for it to 'come back'. He thought that the two people that he had seen run up the hill had got into the red car. (g) He had never previously seen the red car. (h) He did not know the deceased. (i) At the party he was wearing a blue Champion brand shirt and blue shorts. (j) Afterwards he heard a rumour at school that it was 'two Lebos' that had assaulted the deceased. (k) He provided police with his mother's mobile number. (1) He stated that since the party he had only spoken to MG just to say "Hi" and "Bye". Second recorded conversation - 11 March 2011
On 11 March 2011, AE participated in a further recorded conversation with police in the presence of his sister. In that interview he said the following: (a) He arrived at the party between 8:00 and 8:15pm but was not sure how long he remained. (b) He went there hoping to see his mates, any of them that might be there but no-one in particular. (c) His mother dropped him off and picked him up. (d) When he called her his mother was still on her way home. (e) He left quickly because there was a fight and because none of his friends were there. (f) He could not tell what the two people running up the hill looked like because it was dark. (g) He was shown a photograph and agreed that he appeared in it, but could not explain how it was that he was in it if the photograph was taken between 9:30 and 10:00pm (Exhibit DT). (h) He did not know anyone by the name of JH. (i) He did not know anyone involved in the attack but had heard rumours that it was 'two Lebos'. (j) He knew JP and MG as they both went to his school, but only to say "Hi" or "Bye". He did not know JH or AN, nor MG's brother. (k) He denied speaking to MG about the assault on the deceased. (b) The applicant MG
On 19 December 2010, police attended his home to speak to MG's brother about the death of the deceased. MG's brother told them that he knew nothing about the assault and that he and MG were at home all day and all night on 30 October 2010, for their sister's 11th birthday party. He said that there would be photographs on his mother's camera of him at his sister's party. Police also had a conversation with MG, who was present when police spoke to his brother. MG told police that he had heard about the assault at school but did not know anyone who had gone to the party where the boy died.
On 20 December 2010, Eddie Saffar (the father of MG and his brother) supplied police with three photographs which were said to have been taken at his daughter's 11th birthday party on 30 October 2010. The photographs depicted MG's two brothers, but there were none of MG. The photographs were said to have been taken at 3:37pm, 4:53pm and 6:06pm on 30 October 2010. First recorded conversation - 19 January 2011
The first recorded conversation took place on 19 January 2011, in the presence of MG's two brothers, his father and his mother. In that recorded conversation MG said: (a) He acknowledged that police had already spoken to his brother. (b) He was not at the party and had stayed home all day and night as they were having a party for his sister's birthday. (c) He did not know anyone by the name of JH, but did know a JT. Second recorded conversation - 24 February 2011
The second recorded conversation between police and MG took place in the presence of his father and brother. In the second conversation he stated the following: (a) He was not at the party where the deceased had died. He was at home at his sister's party. (b) His brothers were also at home at his sister's party. (c) He denied that he had any reason to lie. (d) He did not know anyone who had gone to the party. (e) He had heard a rumour that it was "two Lebos", it might have been a fight over a phone or a girl. The third recorded conversation - 3 March 2011
Present during the third recorded conversation with MG was his father. During that conversation MG maintained that he had not gone out that night. When asked about JH, he stated that he would probably know him if he saw his face. The fourth recorded conversation - 14 March 2011
Present during the fourth conversation with MG was his father and his brothers. The following occurred: (a) With reference to being questioned on previous occasions about JH, MG was shown a copy of Exhibit S (photograph of the lady in the silver dress), and was asked if he recognised anyone in that photo. He said that he was unable to see it properly. (b) One of his brothers spoke out and said, "Yeah, but you can't see his face. I can't even see his face. He doesn't recognise it mate". (c) MG then said that he did not recognise JH. Telephone intercept evidence
The Crown relied on the telephone records of the applicants AE and MG, as well as JH, JP, AN and SB to show that there were no calls between any of them between 7:50pm and 9:27pm on 30 October 2010. The telephone records showed that there was a continued association between those six persons, particularly in the period after the Halloween party and around the time that police were speaking to each of them. (a) Call charge records - AE
The appellant AE's mobile telephone records were tendered and marked Exhibit DC. The records showed that: 1. there were no telephone calls recorded from his phone to his mother's phone on 30 October 2010; 2. there were no calls recorded from his phone between 6:05pm and 10:59pm; and 3. there were two calls from his mother's phone to his phone at 9:36pm and 11:24pm.
The Crown case was that the effect of this evidence was that AE could not have called his mother to come to pick him up after the assault and that the later calls from his mother suggested that he was not at home. (b) Call charge records - MG
The applicant MG's call charge records for 30 October 2010, were tendered and marked Exhibit DD. The records showed the following: 1. There were calls to MG from JH, AE and AP (the mother of JP). 2. There were no calls made or received by MG between 7:53pm and 8:40pm. 3. At 8:52pm, JH attempted to call the MG three times.
The Crown case was that the effect of this evidence was that JH and AE were both known to MG and showed an association between them. (c) Call charge records - the deceased
The deceased's telephone records were included in Exhibit DF to establish that the assault took place sometime between 8:23pm and 8:43pm. (d) Telephone intercepts
During the trial, the jury listened to a number of intercepted telephone conversations between those persons whom the Crown said had been involved in the assault on the deceased. The transcript and the audio of the conversations were tendered and marked Exhibits DH and DJ respectively.
On 28 November 2010, there was a call between MG and JP at 7.04pm. The call was initiated by JP.
When MG indicated that he would not be going to school until Tuesday, the following exchange took place: "JP: Fuck bro I need to talk to you about something. MG: About what? JP: About the thing …"
On 1 December 2010, there was a call between JP and MG at 10:11pm. By this stage, police had attended MG's home, but had not spoken to him about the assault, nor had they spoken to JP about it. The call was initiated by JP and the following exchange took place: "MG: Yeah, what are you doing? JP: Nothing. Listen, are you going to give me a big hug tomorrow or what?; MG: Why? FP: Brother, you know all that thing, about that thing? MG: About what? IP: About the thing. MG: Yeah? JP: Everything's cleared off."
On 6 January 2011, a call was intercepted at 2:38pm between MG and JP, followed by a call between the two applicants at 2:44pm: The 2.38pm call was initiated by JP. The following exchange took place: "MG: All these cunts are asking if I'm 'little A'. JP: All right, listen, ah look thing, grab all the boys AE and AN, we need to talk about the thing bro. MG: All right, they're all coming here. Ah, where are you? JP: I'm home, I'll be there in like ten minutes, let me get ready and shit."
The 2:44pm call was initiated by AE. The following exchange took place: "AE: Where are youse. MG: I'm at little A's. AE: Walk Cubby. MG: (Unintelligible) fuckin' come here, come here. AE: Well what for? MG: What do you mean what for? Come here bro. Yallah, bye."
On 7 January 2011, a number of calls were intercepted by police. At 12:39pm a call initiated by JP to MG took place. The following exchange occurred: JP: How fast can you get to my house? MG: Huh? JP: How fast can you get to my house? MG: Why? JP: We need to talk. MG: Um, not, not now, bro. My mum's upstairs (unintelligible). JP: All right, listen, fucking... MG: Message me. JP: No, no, no, I can't. 'Cause it's about the thing. MG: I'll talk to you today."
At 2:15pm a call initiated by AN was made to MG. The effect of the call was that MG was going to go to AN's place that day.
At 3:11pm a call initiated by AE to MG was made. In that call MG indicated that he was at AN's place to which AE responded that he would be there in five minutes.
At 5.42pm a call initiated by JP was made to MG. The content of the call was a suggestion by JP that MG go to a certain location.
At 5.56pm a call initiated by AE was made to MG. MG agreed to meet AE at a specified location.
A few days before 13 February 2011, one of the investigating police had attended AE's home and spoke to his brother who advised that AE was at camp. On 13 February 2011 at 7:24pm there was a call initiated by AE to MG. The call concerned the visit by the police. Relevantly, the following was said: "MG: Everything all right? AE: Yeah. When they came I wasn't home, well I was at a camp. MG: Yeah, I know. What happened, what did they want, what happened? AE: I don't know, they just came and wanted to talk. MG: Did they come back? AE: No, they haven't come back yet. MG: Does your mum know? AE: Yeah. MG: What did she say? AE: Nothing. MG: She doesn't... AE: What could she say? MG: She doesn't care, hey, 'cause she was all right, she was like, "Oh, do you want me to drop you home", and shit, I thought she didn't know about it. AE: No. She knew. MG: What did they want? AE: I don't know, bro, they just wanted to ask me some questions. MG: About what? AE: About the thing. … That thing. MG: Oh. AE: Yeah. MG: About, about that thing, oh, they even asked me too, cuz. AE: Are you serious? MG: About the party bullshit? AE: Yeah. MG: Yeah, they, remember when I told you they came to my house? AE: Yeah."
It was the Crown case that the discussions about "the thing" were a reference to the assault, thus linking the persons who were involved in the assault to each other. Taxi records
Taxi records were tendered. These showed that at 11.19pm on 30 October 2010 a person calling himself JH booked a taxi from Gallipoli Street, Bossley Park for two people to be taken to Hoxton Park. The person who called the taxi was dropped off in the vicinity of Dalbertis Street, Abbotsbury, which is the home address of MG. It was the Crown case that one of the occupants of the taxi was JH. Post mortem
Dr Stephen Wills conducted a post-mortem examination of the deceased. He determined the cause of death to be from a head injury. There were a number of impact sites on the deceased's head and neck, the most prominent being on top of the head, which showed incised and bruised compartments. Dr Wills opined that the overall pattern and nature of the injuries could not be accounted for simply by a fall with impact to the ground. His opinion was that the injuries were indicative of an assault involving several points of blunt impact to the head and face, and additional sharp force injury.
Dr Wills said that the incised wounds to the top of the head and to the left palm indicated the use of a sharp object such as a bottle. Incised wounds were generally caused by sharp objects, and the injury to the top of the deceased's head was consistent with being hit over the head with a bottle.
With regard to the head injury, Dr Wills stated that a subdural haemorrhage was present in the brain and that would have caused the brain to leak blood and build up pressure inside the skull, hampering the blood supply to the brain, and consequently preventing oxygen flow.
Dr Wills gave evidence that following the infliction of the head injury, the deceased would still have been able to run, hide and make a telephone call before losing consciousness because the bleeding within the skull around the brain would take time to accumulate and put pressure on the brain. Police investigation
On 7 March 2011, police executed a search warrant at AE's home and took a blue Champion t-shirt which was on the line in the backyard. JP was arrested on 21 July 2011 and MG, AE, AN and SB were arrested on 19 October 2011. CONVICTION APPEAL BY AE Ground 1 - The jury's verdict was unreasonable or cannot be supported having regard to the evidence.
The applicant submitted that the Crown case was made up of circumstantial evidence and evidence of identification by JE and KC. The applicant submitted that there were a number of unsatisfactory aspects of that evidence so that this Court could not be satisfied that the evidence was honest and reliable.
The matters relied upon on this issue by the applicant were: 1. The conditions in which each eye witness's observations of the relevant events were made. 2. The number of people who comprised the group of uninvited males. 3. The number of males actually involved in the assault on the deceased. 4. The number of males who pursued the deceased on Restwell Road and the description of these males. 5. The presence of at least two other young people in blue t-shirts at the party, including MG's brother and the evidence of JD as to her observations that MG's brother changed the colour of his shirt following the assault from blue to green. 6. The absence of any identification of the applicant by those who were familiar with him at the time of the assault. 7. The absence of any subsequent identification of the applicant on the night of the assault by those who were familiar with him or by other eye witnesses to the assault. 8. The failure of all eye witnesses to the assault, including KC and JE, to identify the applicant during the photograph identification procedures. 9. The circumstances surrounding the subsequent identification of the applicant from Exhibit S by KC on 1 May 2011 and then JE in his evidence at trial.
The applicant submitted that there was no issue in the trial that it was dark when the assault took place, that the assault lasted about 10 seconds and that there was a large number of people standing around in the vicinity of the assault. At least five witnesses commented on how dark conditions were at the time. The estimates of the number of people in the vicinity of where the assault took place ranged between 30 and 50. The applicant submitted that the combined effect of this evidence would make it very difficult for anyone to make an accurate identification and that this evidence needed to be kept in mind when assessing the reliability of the evidence of KC and JE.
The applicant submitted that the evidence of the number of people who comprised the group of uninvited males was not satisfactory. The numbers varied between four and fifteen. The applicant submitted that this variation in number was also a feature of the evidence in relation to how many people actually participated in the assault upon the deceased. The evidence on that issue provided a range of between four and ten persons. He submitted that this evidence was further complicated by the inconsistency in the evidence of how many people actually pursued the deceased following the assault upon him. The evidence varied from no persons pursuing him to three persons doing so.
The applicant submitted that these inconsistencies had to be taken into account when assessing the evidence of JE and KC. JE said that he saw three people pursue the deceased and described one of them as being dressed in a blue shirt. He subsequently identified this person in court as the applicant AE. KC saw two people pursue the deceased and described one of these as being dressed in a blue shirt. He also subsequently identified that person as the applicant AE.
On this issue the applicant relied upon KC's initial description of the blue shirt as having a black design on the front. No mention was made in his first police statement, the day after the assault, of a Champion logo or white writing. The applicant noted that Exhibit BB was a photograph of MG's brother from the party which depicted him dressed in a blue t-shirt with a black design on the front.
The applicant relied upon the fact that the photograph identification procedures undertaken by the police in April and May 2011 resulted in only two witnesses, AP and SA, identifying the applicant. Each did so not on the basis that he was involved in the assault upon the deceased, but because they each knew him before the party from school and recalled seeing him at the party. The applicant noted that they were both eyewitnesses to the assault upon the deceased, but did not at any time identify him as having been involved in the assault, despite seeing him at the party. The applicant noted that in April and May 2011, fourteen other witnesses participated in photographic identification procedures, yet none of them including KC and JE at that time, identified him as having participated in the assault.
The applicant submitted that his identification as a person who participated in the assault depended upon the identification of him by KC and JE from Exhibit S. He submitted that the circumstances surrounding each of those identifications made their reliability doubtful.
In relation to JE, the first time he identified the applicant as one of the four persons who were actively involved in the assault on the deceased, was in his evidence at trial. When shown Exhibit S on 9 February 2011 he did not identify the applicant. When shown a photograph of the applicant in a photographic array on 5 May 2011 he did not identify him. The applicant referred to the admission by JE that in his first two interviews he had told a series of lies to the police. The applicant submitted that when all those matters were taken together, JE's evidence was unsatisfactory and unreliable.
The applicant submitted that the identification of him by KC from Exhibit S was questionable. He submitted that given the conditions prevailing at the time, it would have been difficult, if not impossible, for KC to identify him primarily from facial features which KC had the opportunity to observe. This was because the person in the blue shirt was running. That evidence of KC at trial, it was submitted, stood in stark contrast to the evidence which he gave at the committal proceedings to the effect that because it was dark, it was near impossible to be able to register the facial characteristics of the individuals involved in the assault. In further support of that submission, the applicant noted that KC had seen Exhibit S before he identified him on 1 May 2011. He had looked at it on Facebook. Despite this, he did not mention the photograph or its depiction of what he later claimed to be another of the deceased's attackers in his second and third statements to the police before 1 May 2011.
The applicant submitted that KC's original description of the blue shirt was more consistent with that worn by MG's brother, as depicted in Exhibit BB, than the one worn by the applicant in Exhibit S. The applicant submitted that KC's evidence evolved into what was ultimately presented at trial so that his description of the blue shirt became more consistent with that worn by him in Exhibit S.
The applicant submitted that this identification evidence from JE and KC was unsatisfactory and clearly unreliable. He submitted that the case against him was based almost entirely upon this identification evidence. He submitted that this Court should have a doubt as to the reliability of that evidence and that this doubt should have been one experienced by the jury.
While the applicant accepted that the jury had the advantage of seeing and hearing the witnesses, he submitted that this advantage should not be overstated, particularly in the case of identification evidence. He submitted that the real danger with identification evidence was that mistaken witnesses could be very convincing. Accordingly, the benefit the jury had of hearing and seeing the witnesses was not as important when considering the reliability of identification evidence. The applicant submitted that this Court was in as good a position as the jury to make that assessment.
The applicant submitted that the benefit enjoyed by the jury essentially went to the question of the honesty of the witnesses, not their reliability. He submitted that reliability was a matter which this Court was better equipped to assess. He submitted that this Court was fully aware of the dangers associated with identification evidence and could compare the evidence of JE and KC against extrinsic evidence and the evidence of others who had a better opportunity and were better able to identify him as being amongst those who assaulted the deceased but were unable to do so. The applicant submitted that this was particularly so in this case where the identification was not spontaneous but occurred over a period of time with the inevitable risk of displacement and reconstruction because subsequent to the assault he was seen to be part of a group, some of whom were clearly involved in the assault. Consideration
The leading case in this area remains SKA v The Queen [2011] HCA 13; 243 CLR 400. There the plurality (French CJ, Gummow and Kiefel JJ) said: "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[5]. 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." … 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'.""
Subsequent to SKA, this Court has set out those principles in a number of cases. In Hawi v R [2014] NSWCCA 83; 244 A Crim R 169 Bathurst CJ (with whom Price and McCallum JJ agreed) said: "308 It is not enough for the verdict to be unreasonable that a review of the evidence shows that it was open to the jury to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. However, it is equally clear that it is not sufficient that there was evidence on which a jury could convict. That was made clear in M, cited in SKA at [13]. If, after giving full weight to the primacy of the jury as the fact finder, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [26] and [55]-[56])."
In Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 the Court (Bathurst CJ, Hoeben CJ at CL and Bellew J) said: "350 The manner in which this Court should approach its task pursuant to s 6(1) of the Criminal Appeal Act was set out in M, MFA, R v Nguyen [2010] HCA 38; 242 CLR 491 and SKA. When considering whether a verdict was unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for the Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in the circumstances to let the verdict of guilty stand. Put another way, the question is whether, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 351 In carrying out that task, the Court must not disregard or discount that the jury is the body entrusted with the primary responsibility of determining guilt or the consideration that the jury has had the benefit of having seen and heard the witnesses. As McHugh, Gummow and Kirby JJ observed in MFA at [59] the determination by an appellate court as to the reasonableness of a jury's verdict "involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials"."
In Elwood v R [2016] NSWCCA 18 the Court (Meagher JA, McCallum and Button JJ) said: "21 The question for this Court is whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt; in other words, "whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt": Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493. 22 In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury's advantage in seeing and hearing the evidence could have resolved that doubt. The jury's advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCCA 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence."
While it was appropriate for the applicant to focus on the identification evidence in his submissions, this Court has to be mindful that particular pieces of evidence in the Crown case should not be considered in isolation but in the context of all of the evidence in the Crown case. This Court has to apply the principles set out above and reach its own conclusion based on the whole of that evidence.
The advantage of the jury in assessing the evidence of JE and KC as to its reliability, has been somewhat understated by the applicant. There was a very substantial attack in cross-examination on the credibility of both JE and KC. This cross-examination covered all of the matters which have been raised in this appeal as indicative of the unreliability of the identification evidence. In the case of JE, stress was placed upon the lies which he told in his first two interviews with the police and his late identification of AE. The jury had the advantage of seeing and hearing JE and KC when subjected to this vigorous examination. Accordingly, the jury was in a better position than this Court to assess not only what was said in response by those witnesses, but how they said it. As the statements of principle set out above make clear, on issues such as this appropriate weight has to be given to the primacy of the position of the jury as the finders of fact.
It also needs to be remembered that unlike other observers of the assault, KC intervened, albeit towards the end of the assault. This gave him a better opportunity than anyone else to observe the two persons from the attacking group who chased the deceased. His evidence was: "Q. And what happened? A. The person in the blue shirt was trying to push him behind and the person with the pole was trying to line him up to hit him again. … Q. What happened? A. I kind of jumped in the way. Q. You jumped in the way? A. Yes, kind of pushing and shoving the guy with the pole. Q. You rose to your feet at some point you said? A. Yes once I heard the first altercation. Once I heard the first altercation. Q. You stepped in why? Why did you do that? A. Reaction. Q. What did you do? A. I shoved the person with the pole." (T.984.6 - .36). "Q. That left the blue shirt? A. (No verbal reply). Q. And what was blue shirt doing when you stepped in to stop the man with the pole? A. Continuing to try and push Eden to the floor and attack him. … Q. Did you do anything with the guy with the blue shirt? A. No. He looked back and noticed his associates weren't there with him so he went in between two cars and ran off after trying to push Eden." (T.986.20 - .36)
It is also important that when KC was shown the photo array, which included the applicant on 1 May 2011, he said: "I recognised number 4 as looking similar to one of the members of the group of Assyrian males I described in paragraph 18 of my first statement. I'm not sure that he was one of them but he does look similar." (Exhibit CT, T 1015.7)
This was the occasion that KC told police that he had seen a Facebook photograph which depicted some of the persons involved in the assault on the deceased. It was on this occasion when shown the relevant photograph (Exhibit S) KC was able to identify the applicant.
All of this material was before the jury, including an audio-visual record of KC examining the photographic arrays and identifying the Facebook photograph, Exhibit S. When that evidence, together with the cross-examination is taken into account, it was well open to the jury to be satisfied beyond reasonable doubt that KC had reliably identified AE as being the person in the blue shirt who had been part of the group which assaulted the deceased.
AE of course admitted that he was the person in the blue shirt in Exhibit S.
It was never suggested that there was any collaboration between JE and KC. That being so, the evidence of each of them as to the identification of the applicant as forming part of the group who assaulted the deceased, supports that of the other.
When the other matters which formed part of the Crown case against AE are added to the identification evidence, the Crown case against him was strong. There was the evidence of close association before, during and after the assault on the deceased with the other four people known (JH, JP, PB and AN) or said (MG) to have been involved in the assault. There is evidence that the applicant was at the party at the relevant time. The applicant's fingerprints are on many locations on the inside and outside of the red station wagon, which is known to have been linked to the persons involved in the assault. There are the undoubted lies told to the police, which it was open to the jury to find, were told out of a consciousness of guilt.
Although the only two witnesses to identify the applicant as involved in the assault on the deceased were JE and KC, there were other witnesses who identified him as being at the party at the relevant time (SA, AP and JZ). The Facebook photograph, Exhibit S, conclusively established that he was there at a time after the assault between 9.30pm and 10pm.
The lies told by the applicant and the matters to which they relate are important. On two occasions the applicant told the police that he was not at the party after the assault. They were lies. He told the police that he had called his mother and arranged for her to collect him. That was a lie. He told the police that he had not seen any of his friends at the party. That was a lie. He told the police that he had never seen the red station wagon before. That was a lie. In the second ERISP, he said that he did not know anyone by the name of JH or AN, and denied having spoken to MG. They were lies.
When the content of the telephone intercepts is taken into account, it was well open to the jury to accept that these lies were told out of a consciousness of guilt. The call on 6 January 2011 at 2.44pm was important because of the urgency with which MG wanted a meeting with the applicant. That was the day on which the police had spoken to SB. On the following day, there is further urgency in the conversation concerning another meeting between MG and the applicant. The call by the applicant to MG on 13 February 2011, where reference is made to the police asking questions "about the thing", makes it clear that there was a continuing real concern on the part of the applicant about the death of the deceased. The level of concern evident from those three phone calls was much more than one would expect from someone who had a general interest in what had happened to the deceased because he was there.
The position of the jury in this matter was not unlike that of the jury in Shamoun v R [2015] NSWCCA 246 where the chief Crown witness was a person of dubious character and antecedents, who had been shown to be dishonest on a number of earlier occasions. In that case, I said (Hall and McCallum JJ agreeing): "91 The Crown case depended upon the jury's acceptance of Saad. His credit was very much at issue and defence counsel at trial spent many days cross-examining him in order to discredit him. The jury were repeatedly warned of his potential unreliability and the summing up identified in detail the applicant's criticisms of his evidence. There were, as the applicant has identified, inconsistencies in Saad's evidence and in that regard the evidence of the Vespermans and the phone call of 12.05am were emphasised. Even so, it is not sufficient for the applicant to merely submit that as an acknowledged liar and perjurer, Saad's evidence should not be accepted. 92 No Crown case is ever perfect and there are often unanswered questions. An important factor here is the amount of time which had elapsed between the murder and the trial. That of itself provides a reasonable explanation for why, not only in relation to Saad's evidence but that of other witnesses, there were inconsistencies and differences between the evidence at trial and statements made many years earlier. 93 Most particularly, however, this was a case where the jury had a very significant advantage over this Court in assessing the credibility of Saad. This case provides a good example of the qualification expressed by the plurality in M that when considering a ground asserting the unreasonableness of a verdict, the Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses". (M at [7] and SKA at [15]). In this case, the assessment of the credibility and reliability of the evidence of Saad was quintessentially one for the jury to determine."
In the same case McCallum J said: "290 … The case was opened and run on the basis that Saad was the central witness. The advantages enjoyed by the jury in assessing his evidence were significant. There were aspects of his evidence that were unsatisfactory but it does not follow that he could not be accepted on the critical issue whether the applicant was with him that night. …"
Although we do not know what happened at the various meetings which were organised and referred to in the telephone intercepts, there was a clear inference available that the subject matter of these meetings was the death of the deceased and the police investigations which were being carried out into it.
On the basis of the above evidence, I am not left with any reasonable doubt as to the correctness of the verdict. On the contrary, I have concluded that it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt. This ground of appeal has not been made out. His Honour erred in not giving appropriate directions to the jury concerning evidence of the identification of the appellant?
The applicant accepted that his Honour spent considerable time in his summing up explaining to the jury the difficulties associated with identification generally and making specific reference to the evidence. Nevertheless, the applicant submits that the directions did not go far enough.
The applicant submitted that the nature of the Crown case against him was such that a direction consistent with the decision in Domican v R [1992] HCA 13; 173 CLR 555 was required to be delivered to the jury in unequivocal terms.
The applicant's specific complaints were articulated as follows: "126 The evidence of the identification of the appellant by KC and JE was not merely significant to the Crown's case against the appellant but essential. In the circumstances of the appellant's case, it was not sufficient for the trial judge to direct the jury in terms of the general need for caution. 127 What was required was for the trial judge to identify the various matters affecting the reliability of the identification of the appellant by KC and JE in the circumstances of this case and to advise the jury of the special need for caution by reference to those matters as well as the general need for caution. While the trial judge did recite the submissions of counsel setting out the circumstances leading to the special need for caution in this particular case, that is not sufficient. Repetition of counsel's argument is not sufficient. The special need for caution by reference to the circumstances of this particular case must come with the imprimatur of the judge. 128 Further, even when the trial judge referenced the type of matter set out by counsel and referred to his warning, he stated "In line with what I earlier said are matters that can require special caution with identification evidence. They apply in this case and they are drawn to your attention so that you will take those into account in your consideration of the facts in this case in making decisions about the issues that are relevant to determine the Crown case against AE and those matters also of course apply to the two other accused". 129 The difficulty with this passage is that it belies the danger. The judge should not tell the jury that these matters can require a special caution, it is not the matters referred to that require special caution, it is the acceptance of the identification evidence that requires special need for caution. The matters referred to, in conjunction with the general danger, are the reasons for that special need. 130 Further it is not that the matters "can" require special caution, that leaves it to the jury to decide whether or not to exercise special caution. The judge has an obligation to tell them there is a special need for caution and the reason for that need for caution, both general and specific."
In oral submissions, the argument was put in this way: "The major issue that isn't met by the Crown setting out the entirety of what the judge said is set out in my submissions at paragraph 129 and in particular the fact that the judge talks about the matters that can require special identification evidence. What the judge doesn't do, it's the identification itself that requires the special caution. In my submission, the fact that the judge, on occasions, through the course of the passage - set out in full in the Crown's submissions - about some of the dangers, he doesn't state, as he should, in my submission, that is, the identification itself that requires special caution when one deals with it and the matters associated with that are the things that lead to the identification evidence itself requiring special caution." (AT 10.1) Consideration
At SU 41 - 48 his Honour gave the jury general directions on identification evidence. In particular, his Honour said at (SU 45 - 47): "Members of the jury, as I've earlier indicated, there is a special need for caution before accepting identification evidence. There may be a number of reasons for that caution. They concern the issue of reliability of such evidence, including reliability, in particular, in the circumstances established in this case. There have been cases where innocent persons have been convicted on the basis of mistaken identity or identification. Honest witnesses may be certain as to identifying a person and yet be mistaken. Mistakes may be made even where there are multiple witnesses. A mistake may be made even by witnesses who knew an accused person before the occasion on which the offence was committed, and grave miscarriages of justice can occur if identification is mistaken. In this case certain witnesses said they heard and/or saw persons and various events take place. Others said they did not see what other witnesses said they saw and heard. That, of course, is explained in many cases by reason of the fact that they were not in a position to see what happened. That may be because of the position they have taken up, or were occupying when this sudden attack occurred, or there may be obstruction of vision, for one reason or another, such as bushes or other persons standing in the line of sight. Others were not looking in the direction of where the assault took place when it commenced. Some only turned to look upon the hearing of a glass or bottle smashing. You will need to bring into account the matters to which I have referred in evaluating the reliability of the identification evidence, and as I've indicated, there can be a number of factors or circumstances that may impact on the ability of a person to identify the accused in this case. Mostly, and I'm sure it's apparent to you, that would include the sudden violent nature and associated stress of the situation. They include the lighting conditions in the relevant area, or areas, having regard to the time at which the attack occurred, after sunset, and the relative darkness in that area, or areas, although you will have regard to the evidence that there was some lighting there. The distance from which any of the eyewitnesses stood from the scene of the attack is another factor. The number of persons that formed the group of attackers is another. The fact that a number of months had passed since 31 October 2010, and the photo arrays that were taken, for example, in May 2011. Whether the witness saw a member or members of the group, or the accused in particular, at only one point in time during that evening, or whether he or she had the opportunity of seeing persons who are members of that group more than once during that evening, 31 October 2010. Persons in the latter category, obviously, had a greater opportunity than those in the former. All of these sort of factors may have an important bearing and effect upon the reliability of identification evidence. Accordingly, you are required to scrutinise the evidence, scrutinise the evidence of identification, in this case with special care, and to exercise particular caution before accepting it as reliable. The reasons for that caution, which I've outlined - I don't mean to say that they're totally exclusive - but you've heard matters raised in the submissions of counsel as well for the accused. Those matters all are relevant to the identification of persons in what I've referred to as the pre-attack segment, in the attack segment, and in the pursuit or chase segment. They depend upon many variables which include, as I've said …"
At the start of day 2 in the summing up (7 November 2011) counsel for the applicant asked his Honour to deal more fully with the defence case on identification. In addition to referring to counsel's submissions in respect of JE's evidence, his Honour went through the many reasons that counsel for the applicant had submitted to the jury gave rise to the danger of unreliability of KC's evidence. His Honour did this at SU 219 - 223.
The matters specifically identified by his Honour were: 1. The brevity of the time in which the events occurred. 2. Darkness. 3. Shrubs in his line of sight. 4. The period between the events and the process of identification. 5. The change from uncertainty to certainty in KC's version of the applicant's involvement. 6. The inability to recall facial features. 7. The change in his description of the blue shirt. 8. Error in describing the applicant as wearing jeans. 9. Undertaking his own investigations. 10. Never telling police that he had seen the applicant's face when he turned round. 11. Not mentioning having seen Exhibit S, (photo on Facebook), for some months. 12. The suggested exaggeration in how he dealt with the person with the pole.
On the morning of day 4 of the summing up (11 November 2014), the following exchange took place between his Honour and counsel for the applicant at SU 229: "HIS HONOUR: Mr Conwell, I received your written suggested directions. I had myself last night gone through the evidence and I am satisfied, and I have made my own notes which record many of the matters you have raised, and I intend to, as I'm presently dealing with the evidence of KC and the issue of reliability arises, make reference to many of the matters that are dealt with in your memorandum of submissions. MFI # 59 WRITTEN SUGGESTED DIRECTIONS OF MR CONWELL DATED 10.11.14 HIS HONOUR: Is there anything else you wish to say? CONWELL: I rely on those written directions, but may I emphasise, your Honour, that the directions should come from the Court and not from me."
I have read MFI 59 and it would be fair to say that his Honour's further directions as to identification contain almost word for word what is in MFI 59, except for the submissions of law. What his Honour said was: "Members of the jury, I want to continue with the submissions made on behalf of AE by Mr Conwell. You may recall he had identified five factors which went to the observations that took place by KC and that part of his submissions were directed to the question of the reliability of his evidence. I will not repeat all of those matters but I will come back and deal with them in a moment. He, however, identified them as including matters of what he called the darkness factor, the period of time in which observations are made and the delay in the identification process and so on and I will deal with that in a moment in greater detail. So the submission is directed to the proposition that by reference to these matters, the reliability of KC is a significant matter. I earlier gave you directions that identification evidence requires the exercise of special caution because even honest witnesses can be mistaken and it is therefore these matters that were relied upon as indicating the relevant matters which are said to go to the reliability of KC's evidence. KC, as you will recall, attended and gave his account of what he said he saw and heard and the matters that are relied upon on behalf of AE as going to the issue of reliability include the fact that KC did not previously know AE. In other words, there is no recognition involved here of someone whom he previously knew because he did not know him before this night and that is a reality and it is important to take it into account because identifying persons who have been previously known to another person can be wrong and, of course, identification of somebody who is a stranger also carries an obvious risk of that kind and that is to be factored in. The amount of time that elapsed when the observations made by KC plainly is important. This episode, as it were, unfolded very quickly and you have heard evidence about that, varying from a period of five to ten seconds, or something of that order, when the attack itself was occurring, and that is a limited period of time in which to absorb, make observations and take in information. That is a factor obviously you would take into account. A lot was happening at that time so that can operate as a factor, as you would appreciate in ordinary life, which can distract and affect the accuracy of observations. And then the issue of the lighting conditions, and you have heard evidence about it, I will not repeat it, but it obviously is relevant, you must take it into account in determining accuracy in observations. At the time of the attack on the deceased, as you have heard, it was not day-time but in the evening. You have heard comments about - and I mentioned them yesterday - about KC's intervention. There is some dispute as to exactly what was the manner of his intervention, as I mentioned, but the question also to be taken into account is: Well, is he in a position to make observations of the person he sees in the blue shirt in the drama of the moment, firstly, because the drama of the moment can affect reliability of observations and, secondly, what is occurring, such as chasing somebody after such a dramatic incident itself can impair observations, it distracts perhaps because of the events. I mentioned yesterday that when you are looking through a line of sight you also have to bear in mind that if a line of sight is impaired by people standing in that line of vision, there are shrubs and so on, you take that into account. Reliance is placed on the evidence of KC in this trial and he was particularly asked about how close his observations were and he, you might think, was quite candid with some of the answers he gave, and I will refer to some of those questions. He was asked in cross-examination by Mr Conwell a number of questions directed to exploring what opportunity, in terms of whether it was a limited opportunity, he had to make observations, so that KC was asked: "Q. You weren't in a position to make any close observations of these individuals' faces, correct? A. No. Q. You could not see colour of eyes or else make observations in relation to facial features up close, correct? A. Yes. Q. What about their faces, could you see them? A. I wasn't really concentrating on their faces during the attack, just watching what was going on essentially." And a question was raised as to whether he was focusing on the group particularly at the front at the time that was occurring. The evidence he gave indicated that there was no focus on the group out the front and you will recall the evidence as to when his attention was first directed to it and he gave evidence of what he said he saw. Members of the jury, those matters are the sort of matters that, in line with what I earlier said, are matters that can require special caution with identification evidence, they apply in this case and they are drawn to your attention so that you will take those into account in your consideration of the facts in this case in making decisions about the issues that are relevant to determining the Crown case against AE, and those matters also of course apply to the two other accused. A question was put to him, you may recall, that was put to him in the committal proceedings in October 2012. It was this question: "Q. And as a result of it being dark, it was near impossible, I would suggest, for you to be able to register at this time the facial descriptions or the facial characteristics of these individuals, correct? A. I guess, yeah, correct." That is consistent with what I said a moment ago as to his response about facial characteristics and the like. There were a number of issues raised with him as to the process by which he was asked to identify, or try and identify, relevant persons and you recall that the initial statement he gave was on 31 October 2010 and then on 14 March 2011 he was asked to come back to deal with a statement by Detective Barnes and Detective Barnes' evidence on that is at transcript 1363, which I will remind you of briefly. He explained why he called him back in, was to do with a statement that there had been an oversight and that that was required. It was a statement that should be included about whether the person had told the truth in the statement. He gave that explanation and he said he did not take the opportunity on that occasion to ask him if he wanted to change anything or add anything to the first statement. So the submissions put were that there were changes in KC's evidence and you will recall the references were that he initially referred to the black writing, he did not refer initially to the Champion white writing, and it was put that he had no explanation for not telling the police on 31 October 2010 for not having done so. The next step was, as I have just referred to, the statement of 14 March and, accordingly, it was not until 1 May 2011 for the first time KC raised this question of exhibit S, the girl in the silver dress photo. I went through the evidence yesterday about how that came about, at the end of the photo array KC said he remembered something about having seen the photograph and so on. But the submission put was that there was a delay nonetheless between 31 October 2010, when he made his first statement, and 1 May 2011 and that you would have regard to the fact that that delay occurred before KC raised with police, having seen that photograph soon after the attack on his computer. And this is in effect the submission that there has been a progression in his evidence over time and that goes to the issue of his reliability. Additionally, it was put that he never told police, "That looks like the face that turned around and glanced at me when he was chasing [the deceased] up the street". Mr Conwell says he did not say that. It was put that he said in evidence that he commenced to make some investigations, he was a friend of [the deceased's], and he wanted to do all he could to assist police. It was in that context that this question of the 14 May and the 30 May meeting, to which I have just referred, was raised in the submission to you. So the submission on this area was, according to Mr Conwell, the point he was seeking to make was that it cannot be the case that if KC was keeping it up his sleeve for a later arrangement, that is, a later arrangement, as I understand the submission to be, to then tell the police, because there had not been one. In other words, arrangement had been made as at 14 March for him to come in in May, that arrangement was made later, so it is not as if he was saving that up until that meeting. So the submission is you would have regard to that, as you would to the progression of the statement. The original statement was blue shirt, black writing, chubby, and then it changed to black and white or white at the committal, that sort of progression submission. A submission was also made that the photograph, Exhibit SH, shows AE, and perhaps a third or a half of a full torso and that KC said at the time he was within the proximity when the photograph was taken, that he would have seen AE's full body and in the committal evidence in 2012 he said the boy in the blue shirt was wearing jeans, and we know that is not the case and I made mention of that yesterday. A further issue raised was the one I have already touched upon, and that is the issue of darkness, it being dark, and the evidence he gave on that subject in the committal was: "Q. As a result of it being dark it was near impossible, I would suggest, for you to be able to register at this time the facial descriptions or the facial characteristics of these individuals, correct? A. I guess, yeah, correct." And then the other matters which I have already raised this morning. The submission was in May 2011 he said the picture of AE looked similar to someone in the group, that was in the photo identification process, and the submission was that it has now grown to: I can see the face of the boy in the blue shirt when he looked up. I recognised his face from later photos that were given to me to identify, and the submission was, well, that could not be and that is a matter for you to assess. It was submitted that he could not give a reason why he did not tell police back in May 2011 during the walk-through as to why he did not then provide that information. It was said that KC said that the boy in the blue shirt was in, what he termed, the arrival group. He said the boy in the blue shirt was in the group that assaulted [the deceased] and he said the boy in the blue was in the return group. It was put that that would be a very big stretch, that was the way it was put by counsel. When he was asked by Mr Conwell about the boy in the blue being in the return group, he agreed and then he has put the question: "Q. It's an assumption that they were the same boys in the group, isn't it? A. Most certainly they were, definitely. I guess an assumption, I guess to me it would be that. Yeah, they were there." The submission was with respect to KC he was assuming that the boy in the blue shirt was in the original group and he (Mr Conwell) made reference to the fact that AE had originally arrived at the party by being dropped off by his mother. Now, the submission was developed further by referring to the evidence of other witnesses and in effect the submission was: Well, if you take into account what others say, what does that tell you about the reliability of KC. You were taken through the evidence of six other witnesses who were in the near area of the assault and Mr Conwell said, "They all see something different" and the submission to you on that was: "That is one of the dangers of the mind, it's a danger of identification evidence, no one sees the same thing, and that would be clear." That was the submission." (His Honour then summarised the evidence of those six persons.) (SU 231 - 238)
As indicated by the underlining, his Honour was directing the jury that they had to take into account all of the matters referred to as requiring special caution. These directions had the authority of the court behind them. Significantly, no further direction or redirection was sought by counsel for the applicant.
The directions given by his Honour were fully consistent with MFI 59 and covered the precise areas identified by counsel for the applicant. The authority of the court was given to the summing up by his Honour referring to the relevant submission but adding the injunction that "This was a matter which the jury had to take into account".
Given that his Honour had dealt with the question of identification at some length on three separate occasions, it could not be said that the jury were unaware of or misunderstood the dangers of accepting unqualified identification evidence. This ground of appeal has not been made out. Ground 3 - His Honour erred in not giving appropriate directions to the jury concerning joint criminal enterprise.
The applicant accepted that his Honour's direction as to extended joint criminal enterprise was consistent with the High Court's decisions in McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at [117] - [118] and Gillard v The Queen [2003] HCA 64; 219 CLR 1 at [112]. The applicant submitted, however, that the decision in McAuliffe was inconsistent with that of the United Kingdom Supreme Court in R v Jogee; Ruddock v The Queen [2016] UKSC 8; 2 All ER 1. That issue was considered by the High Court in Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30. The High Court upheld the test set out in McAuliffe and declined to follow the United Kingdom Supreme Court decision in Jogee. Accordingly, this ground of appeal has not been made out. Conclusion and orders
In relation to the application by AE, the orders which I propose are that leave to appeal be granted but that the appeal be dismissed. THE APPEAL BY APPLICANT MG Ground 1 - The verdict of guilty was unreasonable and could not be supported having regard to the evidence.
The applicant submitted that it was not open to the jury to be satisfied beyond reasonable doubt that he participated in the attack on the deceased, or that he was present, ready, willing and able to assist in that attack. In support of that proposition, the applicant relied upon seven propositions.
The first proposition was that there was no eyewitness who clearly and positively identified the applicant as present at the party at the time the deceased was attacked. The applicant accepted that there were eyewitnesses who positively identified him at the party but submitted that the evidence primarily related to a time after the deceased had been assaulted.
PP saw the applicant at the party with some Lebanese boys after the assault. His evidence is summarised at [84] hereof. This evidence is qualified by the 70 percent estimate.
JT gave evidence that he was about 75 percent sure that MG arrived with the group of young men of Middle Eastern appearance. His evidence is summarised at [85] hereof. The applicant submitted that the concessions in cross-examination seriously undermined the evidence in chief.
LDM had some doubt in identifying MG as being at the party. He did recall that a person who looked like MG had a rat's tail. His evidence is summarised at [86] hereof.
SA identified MG at the party but she only saw him when the group of young men returned to the party at about 9.30pm after the attack on the deceased. Her evidence is summarised at [87] hereof. AP gave evidence to similar effect as SA. Her evidence is summarised at [88] hereof.
The matter was further complicated by evidence that MG's brother was also at the party. This was established by a photograph taken at the party. MG's brother looked rather like him with a rat's tail hairstyle. MG's brother's photograph was never put in an identification procedure for witnesses to look at.
BT gave evidence that one of the persons in the group, who arrived looking for the "Campbelltown boys", had a thick rat's tail. The person he identified from one of the Facebook photographs was MG's brother. He described the rat's tail as about 5cm thick. BT's evidence is summarised at [90] hereof.
JD identified MG's brother from Exhibit BB and photograph 57 in Exhibit R as one of the boys who came back to the party after the attack on the deceased. Her evidence is summarised at [91] hereof.
JE could not recall seeing MG's brother in the group who were attacking the deceased.
The second proposition relied upon by MG was that there were no eyewitnesses who identified him as participating in the attack on the deceased, or even being in the vicinity of the deceased when he was attacked. There was no-one in the Crown case who gave evidence to that effect. In a negative sense, there was evidence identifying JP, AE, JH, AN and SB as part of the group that had participated in the attack on the deceased. No-one identified MG.
The third proposition was that it was not open to the jury to find beyond reasonable doubt that because MG was one of the "Wakeley boys" who attended the party, he must therefore have been part of the group who attacked the deceased, or was someone who was present, ready, willing and able to assist the attackers. The applicant submitted that the preponderance of evidence was that not all of the "Wakeley boys" were involved in the attack on the deceased.
The applicant submitted that when one looked at the evidence of all of the eyewitnesses as to the number of "Wakeley boys" who initially arrived at the party and at the estimate of the numbers of persons actually involved in the attack, there was a significant difference. The preponderance of evidence indicated that there were more "Wakeley boys" who attended the party than were involved in the assault. The applicant relied upon evidence to the effect that there were only three or four persons who were active in assaulting the deceased and if that were so, by a process of elimination when one had regard to the persons who were actually identified as so involved, there was a strong likelihood that MG was not.
On that latter issue, the applicant placed particular weight on the evidence of CO, who was close to what occurred and was definite in her assessment that only three or four persons at most were involved in the assault on the deceased and that some of the persons standing nearby were seeking to help him rather than harm him.
The fourth proposition relied upon by the applicant concerned the limitations of the Crown's reliance upon the grey Lonsdale jacket to link him to the assault on the deceased. The applicant submitted that no witness at the party saw him wearing the grey Lonsdale jacket, nor did any witness see anyone at the party wearing anything which looked like the grey Lonsdale jacket.
The applicant submitted that although a number of witnesses gave evidence of what clothing the "Wakeley boys" and/or those who assaulted the deceased were wearing, not a single description matched the grey Lonsdale jacket. The applicant submitted that in those circumstances, it was not open for the jury to find that he was wearing the Lonsdale jacket when he was at the party or at the time of the attack on the deceased. On this issue, the applicant relied upon two alternative reasonable scenarios, which were consistent with his innocence, i.e. 1. He wore that jacket at a time other than when he was at the party; or 2. The deceased's blood was transferred onto the jacket by one of the co-accused who returned to the red car after the attack on the deceased.
The applicant submitted that the existence of such scenarios, consistent with innocence, was important because without the grey Lonsdale jacket the Crown could not link him to the offence. There was simply no evidence linking him to the assault on the deceased. The applicant submitted that the evidence of lies and the evidence of the telephone intercepts proved no more than that he was present at the party at some stage and had some knowledge of the assault, but did not prove that he was one of the persons who was a participant in the assault.
The applicant submitted that the difficulties associated with linking the grey Lonsdale jacket to him could be assessed on a different basis. There was no evidence that anyone wore the Lonsdale jacket that night. There is circumstantial evidence that the applicant did not wear it at the time that the deceased was assaulted. Finally the evidence is consistent with the deceased's blood being transferred onto the jacket after the assault.
The applicant submitted that the only relevant way the Lonsdale jacket could connect him to the assault would be if he were standing close enough to the deceased at the time of the assault to receive some blood spatter. He submitted that it was no answer to that lack of evidence to say that it was dark, that the events happened quickly and that people were shocked. There had to be some positive evidence of a connection. The applicant submitted that contrary to that Crown submission, there was an abundance of evidence as to the sort of clothing worn and although some of it was conflicting, much of it was accurate. He submitted that although it was dark, a number of witnesses said that it did not prevent them from identifying persons and clothing.
The applicant submitted that even if the grey Lonsdale jacket might have appeared to witnesses in the poor light as white, this did not solve the problem for the Crown. The evidence as to persons wearing a white top did not link those persons to the assault on the deceased and in a number of cases the further description of the garments, e.g. a white t-shirt, were clearly inconsistent with that item of clothing being the Lonsdale jacket. No-one described the clear writing on it or anything like that.
The applicant submitted that the only two persons who were described as wearing a white jumper, which is the only colour which could conceivably match the Lonsdale jacket, were JP and PB. The applicant submitted, looking at the totality of the evidence as to clothing, and even taking into account the limitations described by the Crown of it being dark, the incident being of short duration and people being in shock, that the evidence was positively inconsistent with him wearing the Lonsdale jacket at the time of the assault.
The applicant submitted that the DNA evidence relating to the Lonsdale jacket was equivocal. Although on balance it was consistent with him having worn the Lonsdale jacket at some time, because it was not possible to determine when his DNA came onto the jacket, it could not be established affirmatively that this occurred on the night of the party. On the contrary, the evidence of Ms Collins was that such DNA can last a long time. Moreover, there was another person's DNA on the jacket which suggested that someone else, apart from the applicant, wore that jacket at some time.
The applicant submitted that the evidence of the deceased's blood on the jacket was also equivocal. This was because a wet blood stain could easily be transferred. Furthermore, the jacket was found in the red car which is where the assailants went soon after the attack and where they would have been in close proximity to each other. If the jacket were in the car and the assailants returned to the car, there was a real likelihood of a transfer of blood taking place at that point in time.
The applicant submitted that these matters had nothing to do with any advantages which the jury might have. He submitted that they raised evidentiary matters which this Court is in as good a position as the jury to decide. They did not give rise to assessments of veracity or reliability. The applicant submitted that the Crown's suggested scenario that the blood was transferred to the jacket because he was wearing it and he was involved in the assault, is simply one of a number of equally possible scenarios.
The applicant submitted that the situation was further complicated because some of the group of young Middle Eastern males changed their clothes before they returned to the party after the assault. This explained why some of them were dressed differently in the photographs. For example, JD observed that when JH returned to the party, he had changed from a white jacket to a black one with Adidas stripes. This is consistent with how he appeared in Exhibit S.
She also recalled that when JP returned he had taken off his black hoodie and wore a white long sleeved t-shirt with a black t-shirt on top. Even so, no witness identified any of the group who came back to the party as wearing a grey top with writing on it, consistent with being the Lonsdale jacket.
The applicant submitted that there were at least three possible explanations for his DNA and the deceased's blood being on the Lonsdale jacket consistent with his innocence. 1. The jacket could have been worn by him at some stage before the party and left in the red car. It is then quite plausible that a person involved in the assault transferred the deceased's blood from his body or clothing onto the Lonsdale jacket after getting into the car following the attack, or sitting on or handling the jumper. He submitted that the fact that AE's left thumb print was found on the rear vision mirror of the car was consistent with him driving the car at some time. Similarly the fingerprint of AN and the left thumb print of AE found inside the rear nearside window was consistent with them both being in the driver's seat at some time. 2. Although no-one described any of the assailants as wearing a grey jacket, one of the assailants was nevertheless wearing it because the jacket had another identifiable person's DNA. 3. Even if the applicant was wearing the jacket at the party, the blood may have been transferred onto it through contact with one of the assailants after the assault.
The applicant's fifth proposition related to the association evidence, the ERISPs and the telephone intercept evidence relating to MG. The applicant accepted that eyewitness evidence at the party, the call charge records and the telephone intercept material linked him to JP, JH, AN, PB and AE on the night of the assault, as well as after. He noted that in relation to the intercept evidence, no calls were initiated by him. All were made to him.
The applicant submitted that the call from AE to him on 13 February 2011 at 7.24pm, supported the proposition that he was not involved in the assault on the deceased. The applicant relied upon the following exchange: "MG: About that thing, oh, they even asked me too, cuz. AE: Are you serious? MG: About the party bullshit? AE: Yeah." The applicant submitted that this exchange was consistent with him being surprised that even he was being asked questions by the police about his involvement in the assault on the deceased. He submitted that this expression of surprise was not consistent with him being involved in the attack.
The applicant submitted that at its highest, the telephone intercept material demonstrated that he talked to the "co-offenders" about the "thing" which the jury could infer was the assault on the deceased, but there was no admission by him that he was involved in it. The applicant submitted that there was no statement by the other persons in the telephone intercepts to that effect. The applicant submitted that it was plausible that his interest in discussing the "thing" with the others arose from his friendship with them and his presence at the party when the incident occurred.
In relation to the ERISPs, the applicant accepted that he told lies. He accepted that he was at the party that night, although the period during which he was at the party was not clear. Such concessions were appropriate given the evidence of persons who were at the party and the telephone calls from his home to his mobile on the night of 30 October 2010. The applicant also accepted that he had lied about the extent to which he knew JH.
The applicant submitted that these lies cannot by themselves or in combination with other evidence, establish that he participated in the assault on the deceased. He submitted that there were plausible reasons why the lies told by him were not made to conceal his guilt for the offence. He was a fifteen year old boy who knew that his brother had lied to police about his brother's presence at the party. (He was present when his brother denied that he was at the party.) He therefore had an incentive to lie to support his brother's statement that he was not at the party. He had a further incentive to lie in order to conceal his own knowledge of the involvement of his friends in the assault.
Proposition six was that it was not open for the jury to find him guilty of murder on the basis of joint criminal enterprise.
In support of that proposition, the applicant submitted that there was no evidence that he was a party to an agreement which had as its object the infliction of grievous bodily harm on the deceased or, was present, participating in the execution of the agreement at least by being ready, willing and able to assist.
The applicant based this submission on the way in which the Crown put its case at trial. The Crown accepted that it was the blow to the head with a bottle which caused the deceased's death. It was the Crown case that all the boys shared a motive to kill the deceased because he was a "snitch". It was the Crown case that all the boys who surrounded the deceased were in a position to see the bottle and the pole and did in fact see those weapons. It was the Crown case that those persons surrounding the deceased knew that JP intended to assault the deceased with the bottle. The applicant submitted that the difficulty in the Crown making that case against him was that the Crown was unable to identify any act or words uttered by him which proved his intentional encouragement or assistance in the intentional infliction of grievous bodily harm on the deceased. He submitted that the Crown's argument was essentially circular in nature, i.e. that because he was present in the semi-circle around the deceased, he must have been present to offer assistance to JP in assaulting him. The applicant submitted that there was no evidence to that effect and that that was not an inevitable inference to be drawn from those facts by the jury.
The applicant submitted that in essence the Crown case was that being present at the scene of the assault was sufficient to attract liability for murder. The applicant submitted that this was an incorrect approach and that mere presence at the scene of a crime, even with the knowledge of the commission of the crime, but absent proof of intentional encouragement or assistance, was insufficient to establish liability as an aider and abettor to murder (R v Phan [2001] NSWCCA 29; 53 NSWLR 480).
The applicant submitted that the Crown could not make out its case against him given the absence of evidence as to where he was standing at the time of the assault, which direction he was facing at that time and where JP took the green bottle after he held it down next to his leg covering it with his hands. The applicant submitted that it was speculation to assert that he must have both seen the bottle and knew that it would be used to assault the deceased.
The applicant submitted that there was no evidence (direct or indirect) that he: 1. Had any prior animosity towards the deceased or knew that he was a "snitch". 2. Was present in the semi-circle when the deceased was called from the top area of the garden. 3. Took any action towards the deceased immediately before or during the assault. 4. Engaged in any violent or hostile conduct towards the deceased after the assault. 5. Intentionally, or unintentionally, gave or made any "expression, gesture or action" that could be construed as signifying approval of the violence perpetrated by JP against the deceased.
In the circumstances, the applicant submitted, it was unreasonable for the jury to find that he was either a party to an agreement which had as its object the infliction of grievous bodily harm on the deceased or that he was present, participating in the execution of the agreement, at least by being ready, willing and able to assist.
The final proposition relied upon by the applicant in support of this ground of appeal was that it was not open to the jury to find that he had within his reasonable contemplation a substantial risk that one or more of the participants would assault the deceased with intent to cause him grievous bodily harm, i.e. was part of an extended joint criminal enterprise.
The applicant submitted that to find him guilty of murder on the basis of extended joint criminal enterprise, the jury was required to be satisfied beyond reasonable doubt that he, as a 15 year old boy, actually turned his mind ("contemplated") to the substantial risk that JP would cause grievous bodily harm to the deceased with intent to cause grievous bodily harm. The applicant submitted that some evidence to that effect was necessary and that it was not an inevitable inference to be drawn from the facts.
The applicant submitted that in addition it was necessary for the Crown to prove that he knew that JP had in his possession a bottle and that there was a substantial risk that he would use it on the deceased. The applicant submitted that for the reasons already given, that was not an inference which could be safely drawn in the absence of some direct evidence to that effect. The applicant submitted that when considering this proposition, the Court should have regard to the experience of this Court and other courts concerning the cognitive immaturity and impulsivity of teenagers and the difficulty they experience when considering or "contemplating" risks or consequences of their actions. Crown submissions
The Crown case in respect of MG consisted of the following: 1. Evidence of a close association before and after with the other five persons said to have been involved in the assault (JH, JP, AN, AE and PB). 2. Evidence that the applicant was at the party at about the relevant time. 3. The finding of a Lonsdale jacket on the driver's seat of the red Toyota station wagon connected with the applicant and the assault which contained two of the deceased's blood stains on its front and DNA matching the applicant's profile on the inside of the left wristband.
There was no issue about the close association between the applicant and the other five persons.
The Crown submitted that there was evidence that the applicant at the party at about the time when the assault took place, although no-one identified him as one of the attackers. The Crown submitted that the circumstantial evidence allowed for him to have been one of them as he was sighted at the party immediately before and after the assault. (I have been unable to find the evidence to support that last submission by the Crown.)
In relation to the Lonsdale jacket, the Crown submitted that this was an important piece of evidence which was available to connect the applicant to the assault in a manner which inculpated him in the charged offending. It was found in the car which took away from the place of the attack at speed the attackers. It had two spots of the deceased's blood on its front and DNA matching the applicant on its left wrist cuff. Ms Collins opined that it was more likely to have come to be there by way of direct transfer than be secondary transfer.
The Crown relied upon the lies told by the applicant to the police as evidence to establish a consciousness of guilt. The Crown noted that the applicant had told the police on five separate occasions that he was not at the party. He denied on three occasions even knowing JH.
The Crown relied upon the knowing and concerned contact with other "offenders" in the post offence period. The Crown submitted that this was evidenced by the telephone intercepts. The Crown submitted that the telephone records showed that there was a continued association between the applicant and the other "offenders" over the period after the party and around the time that police were speaking to each of them.
I have dealt with these matters in more detail in my consideration of this ground of appeal. Consideration
It is common ground that although the applicant was clearly at the party, particularly at a time after the assault, there is no clear evidence as to when he arrived. Given the close association between him and the "co-offenders", there is an inference available that he probably arrived with them as part of the "Wakeley boys". However, the only evidence to that effect is the somewhat qualified evidence of PP.
It is also common ground that there was no eyewitness evidence which identified the applicant as participating in the assault on the deceased, or even being in the vicinity of the deceased when it occurred.
Those matters, however, should not be considered in isolation. They need to be considered with the other evidence adduced by the Crown. This comprises the evidence of the close association, both before and after the assault, of the applicant with JH, JP, AN, AE and PB. It includes the lies told to the police on five separate occasions with respect to his presence at the party and on three separate occasions with respect to the fact that he knew one of the known attackers, JH. There was also the content of the telephone intercepts which is indicative of knowledge on the applicant's part, not only of the fact of the assault on the deceased, but that at least some of his close friends were involved in that assault.
Finally, there is the finding of the Lonsdale jacket in the red car, together with some fingerprints of his on that car.
Given the applicant's close association with the "co-offenders" and his obvious concern about the assault in the telephone intercepts, I have concluded that it was well open to the jury to find beyond reasonable doubt that the applicant was present at the party at the time the deceased was assaulted. Where I have difficulty is in accepting that it was open to the jury to find beyond reasonable doubt that the applicant was wearing the Lonsdale jacket at the time of the assault and was part of the group that was present when the assault took place and from which some members participated in the assault. The connection with the applicant goes no further than the presence of his DNA on the inside left cuff and the fact that it was found in the red car, which was used by some of the assailants after the assault, and which had a connection with his family. This is in circumstances where Ms Collins said that there was no way of knowing how long his DNA had been on the jacket and the presence of someone else's DNA also on the jacket. I am of the opinion that the scenarios put forward by the applicant, which are consistent with him not wearing the Lonsdale jacket at any time on the night of the assault, are just as reasonable as that put forward by the Crown, if not more so.
What cannot be ignored is that the Lonsdale jacket is a distinctive garment with clear markings on its front. Despite all of the descriptions of clothing given by witnesses at the party, there is no description which gets even close to the Lonsdale jacket. More importantly, none of the descriptions of the clothing worn by any of the assailants is close to the Lonsdale jacket. Taken at its highest, the presence of the applicant's DNA on the Lonsdale jacket means that he had once worn it. The presence of the blood does not mean that it was worn by anyone that night. The fact that it was found discarded on the front seat of the red car is just as consistent with one of the assailants coming in contact with it by sitting on it or otherwise touching it, following the assault. I do not see how the jury could have been satisfied beyond reasonable doubt that the Lonsdale jacket with its two blood spots and the applicant's DNA, when taken with the totality of the evidence, connected the applicant to the assault on the deceased.
To use the Lonsdale jacket to connect the applicant to the offence requires a series of conjectures, none of which is established by the evidence. It is a matter of conjecture that if one of the assailants were wearing the Lonsdale jacket, that no-one saw it because it was dark, events happened quickly and the observers were in a state of shock. A difficulty with that scenario is that the observers were able to make a number of pertinent observations, despite those conditions, yet none of them identified the Lonsdale jacket. It is speculative to suggest that the blood stains came onto the Lonsdale jacket because the person wearing it was in close proximity to the victim at the time of the assault. It is speculative to assert that anyone was wearing the Lonsdale jacket on that night. Finally it is speculative to suggest that it was the applicant who wore the Lonsdale jacket on that night.
Of more importance in the Crown case is the evidence of the close association between the applicant and the co-offenders, the lies which he told in interviews with the police and the fact that although he did not initiate any of the telephone calls with JP and AE, he was the person that they wanted to talk to and whom they wished to participate in meetings which they were organising. This evidence strongly suggests considerable knowledge on the part of the applicant of the assault and the involvement of his friends. What it does not do is establish that he was part of it or, at the very least, was with the group who had surrounded the deceased and had within his reasonable contemplation that there was a substantial risk that one or more of the group would assault the deceased with the intent of causing him grievous bodily harm.
His willingness to meet with his friends to discuss this serious incident does not necessarily mean that he was involved in it. His lies in the ERISPs may well have been indicative of a consciousness of guilt but equally can be explained by a desire to protect his brother and his friends. They are also explained by a not unreasonable wish to distance himself from any suggestion that he was involved in the assault by saying that he was not at the party. This is in a context where the police were interviewing his friends, his brother and himself.
Put at its highest, the close association, lies and telephone intercepts are indicative of a much greater knowledge of the assault than the applicant was prepared to concede and an interest in the progress of the police investigation. The evidence does not, when taken with other evidence in the trial, establish beyond reasonable doubt that he was part of the group which surrounded the deceased and that he had at the time the requisite intention so as to constitute the elements of the offence of murder.
It follows from the above analysis and my assessment of the sufficiency and quality of the evidence relating to the applicant's participation in the offence, it would be dangerous in the circumstances to let the verdict of guilty stand. Accordingly, I am not satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
In reaching that conclusion, I have taken into account that the jury is the body entrusted with the primary responsibility of determining guilt and that the jury has had the benefit of having seen and heard the witnesses. The case against the applicant, however, was a circumstantial case which only marginally involved an evaluation of the truth and reliability of the evidence called. The case essentially involved what inferences could be properly drawn from the evidence and whether on the totality of the evidence, a jury could be satisfied beyond reasonable doubt of the applicant's guilt. I am not so satisfied and I have concluded that it was not open to the jury to be so satisfied.
That is sufficient to dispose of the application. Because it entitles the applicant to an acquittal, it provides wider relief for him than if he had succeeded in making out either or both of Grounds 2 and 3(a).
The orders which I propose in the application of MG are: 1. Leave to appeal should be granted. 2. The appeal is allowed. 3. The conviction is quashed and a verdict of acquittal entered.
DAVIES J: I have read the judgment of Hoeben CJ at CL. I agree with his Honour's reasons in relation to both applicants. However, because ground 1 of AE's appeal asserts an unreasonable verdict I wish to add a few brief remarks of my own.
The case against AE was a circumstantial case although it may be accepted that the matter of identification was a significant aspect of that case. In the same way as a jury ought not to examine each piece of circumstantial evidence in isolation to demonstrate particular weaknesses neither should this Court adopt that approach. Rather, all of the circumstances of the case must be weighed in judging whether there is evidence upon which the jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged: Plomp v The Queen [1963] HCA 44; 110 CLR 234 at 242; The Queen v Hillier [2007] HCA 13; 228 CLR 618 at [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397.
It may be accepted that when each of the witnesses who identified AE as being involved in the assault is concerned there were some difficulties and a lack of certainty about aspects of the identification. However, the close analysis put forward on behalf of AE of the evidence of each of the witnesses tended to overlook the other evidence implicating AE and failed to consider all of the evidence as a whole.
That other evidence included the fingerprint evidence, the evidence of the close association of AE with other persons known to have been involved in the assault, the lies told by AE to the police and the telephone intercepts. When all of those matters are taken into account as a whole, it is my opinion that it was open to the jury to be satisfied of the applicant AE's guilt beyond reasonable doubt.
I agree with the orders proposed by Hoeben CJ at CL.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Hoeben CJ at CL and have conducted my own review of the evidence. Having done so, I agree with the conclusions reached by his Honour, and the orders that he proposes.

(2007) 230 CLR 559

MG v R;; AE v R

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