Mohamed v R

TEXTS CITED: Who is telling the truth? Psychology, common sense and the law (2006) ALJ 655

PARTIES: Elyas Mohamed (Appellant) The Crown

COUNSEL: G D Wendler (Appellant) N Adams (Crown)

SOLICITORS: Van Houten Law (Appellant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/2931

McCLELLAN CJ at CL GROVE J SIMPSON J

WEDNESDAY 5 MARCH 2008 MOHAMED, Elyas v R Judgment 1 McCLELLAN CJ at CL: Elyas Mohamed appeals against his conviction in the Campbelltown District Court. The appellant was jointly indicted with two other men on the following counts: Count 1 Aggravated kidnapping (in company) contrary to s 86(2)(a) of the Crimes Act 1900; Count 2 Robbery in company (of a mobile telephone) contrary to s 97(1) of the Crimes Act 1900 and Count 3 Robbery in company (of $400 in cash) contrary to s 97(1) of the Crimes Act 1900. 2 The co-accused Michael Pritchard was indicted on the same three counts. The co-accused Ropati Ailua was indicted on counts 1 and 2 only. All 3 men pleaded not guilty to all counts. Following a trial the jury returned the following verdicts:

The appellant: Guilty to counts 1 and 3; not guilt to count 2. Pritchard: Guilty to counts 1 and 3; not guilty to count 2. Ailua: Not guilty to counts 1 and 2. 3 The appellant was sentenced to an aggregate non-parole period of 3 years and a balance of term of 1½ years. The appellant appeals against his conviction. There is no application for leave to appeal against the sentence.

The facts 4 The Crown case was that the appellant together with Pritchard and another male person were at a hotel in Campbelltown playing pool with Wayne Wardle in the early hours of 14 November 2004. Wardle was a stranger to the appellant and the two other men. At approximately 6.30 am the appellant, Pritchard, the unknown male and Wardle left the hotel together. Wardle had accepted a lift to his home at Narellan where he expected the group would continue drinking. The men were subsequently picked up in a motor vehicle driven by Ailua. Wardle was seated in the middle of the back seat with the appellant on his right and the unknown male on his left. Pritchard was seated in the front with Ailua who was driving the vehicle. 5 Soon after the journey commenced Wardle became nervous when he realised the vehicle was not travelling in the direction of Narellan. At this point Wardle commenced to make a mobile phone call to his brother. It is alleged that the appellant then produced a knife and held it to Wardle's throat. The unknown male allegedly produced a firearm and held it to the side of Wardle's head, following which Pritchard said to Wardle: "Give me the fuckin phone." 6 The car arrived in Liverpool and all the occupants apart from Ailua alighted. Ailua drove away. It was alleged that Pritchard then punched Wardle in the side of the head and demanded his wallet. Wardle handed Pritchard a wallet which contained $400. Pritchard removed the money and returned the wallet to Wardle. The men then caught a bus at Liverpool station. During the bus journey Wardle pretended to be sick and rushed to the front of the bus, where the driver let him alight. He made his escape and contacted the police. 7 The appellant was arrested on the night of 14 November 2004. He was formally interviewed by the police. He denied that he had produced a knife, threatened or robbed Mr Wardle. He did not give evidence at his trial.

Ground 1: In all the circumstances the verdict in respect of count 1 on the indictment (the take for advantage charge) was so inconsistent with the verdict pronounced in the trial of the co-accused, Ropati Ailua as to be unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912. 8 The appellant submitted that because of the evidence at the trial it was difficult to understand why the jury acquitted Ailua but convicted the appellant and Pritchard. It was submitted that the verdict was perverse for the following reasons:

The Crown case was that Ailua was summoned by Pritchard to pick up the men from the hotel. Ailua denied in a record of interview knowing Pritchard and did not know any of the four men he picked up at the hotel. This was capable of an inference that Ailua was not being truthful concerning his previous association with the men.

Wardle testified that Ailua and Pritchard had a conversation in a foreign language when the car arrived but before anyone entered it. Wardle also testified that they conversed in a foreign language whilst in transit. Wardle further testified that Pritchard said: "Give me the fuckin phone." This was denied by Ailua.

Ailua's denial of any knowledge of any activity in the vehicle was simply unbelievable.

Wardle also told the jury that Ailua removed his security ID and placed it behind the vehicle's sun visor suggesting he was mindful to prevent Wardle from discovering his name.

Ailua was an essential player in the overall scheme to keep Wardle in the car in order to facilitate the robbery.

Having regard to the confines of the car it is difficult to believe Ailua would not have been aware the appellant and the unknown male had produced a knife and a firearm.

Ailua denied all knowledge of the theft of Wardle's mobile phone. However, there was evidence before the jury that Ailua had used Wardle's SIM card in his mobile phone on 14 November, the day of the encounter between Wardle and the men. It was submitted that having regard to these matters that Ailua's acquittal of the take for advantage charge could not reasonably have been on the basis that he had no knowledge of the activity of the other men in the car. It was submitted that the only basis for Ailua's acquittal had to be the reliability of Wardle's evidence concerning the relevant events. 9 I do not accept this submission. The test to be applied when it is suggested that verdicts are inconsistent is one of logic and reasonableness. If there is a proper way by which the appellate court may reconcile the jury's verdicts they will generally be accepted. See McKenzie v The Queen (1996) 190 CLR 348, 366-7. 10 In the present matter although the Crown case against the three accused was one of joint criminal enterprise, the evidence of the appellant's role in that enterprise differed in significant respects to the evidence relating to Ailua's role. The evidence was that it was Pritchard and the appellant who directly threatened Wardle with violence. The Crown alleged that the appellant produced the knife and Pritchard bullied and toyed with Wardle. The evidence in respect of Ailua was confined to him driving the vehicle after he picked up the group of men at the hotel. The Crown Prosecutor put the case against Ailua to the jury in the following terms: "It's the Crown case in respect of Mr Ailua that he involved himself in this joint enterprise to detain and rob Wayne Wardle and when you think of it his role was essential to the successful carrying out of the crime. His role in driving the vehicle was essential to keeping Wayne Wardle in captivity. He was present and by driving the vehicle rendered assistance and encouragement to Pritchard and Mohamed but also Pritchard and Mohamed relied upon him to keep driving in order to keep Wayne Wardle in captivity. So although their roles are different they're all essential to successfully carry out the enterprise. You may think that Mr Ailua would have to be deaf dumb and blind not to know what was going on in his vehicle during that journey to Liverpool." 11 There was no direct evidence that Ailua knew what was happening in the back seat of the vehicle. The Crown case relied upon inferences to be drawn from the evidence, in particular the fact that they were all in the car together. It was suggested that Ailua must have known what was going on. Notwithstanding the Crown submission the jury were not satisfied beyond reasonable doubt that Ailua was part of the joint criminal enterprise. 12 The critical submission of the appellant is that because Ailua was acquitted, the jury must have been unable to accept Mr Wardle as a reliable witness and their doubt should have extended to the appellant. In my view this submission cannot be accepted. The jury could have rationally concluded that Mr Wardle was telling the truth and although they were satisfied that the appellant was part of the joint enterprise to detain and rob the complainant, they were not satisfied beyond reasonable doubt that Ailua was actively involved in the enterprise. 13 The jury was directed that the case against each accused must be considered separately. It is apparent that the jury followed this direction. Although a conviction of Ailua may have been open his acquittal by the jury can be reconciled with the conviction of the appellant.

Ground 2: the verdict in respect of count 3 on the indictment (the second robbery in company) was unreasonable 14 The principles to be applied when it is submitted that the jury's verdict is "unreasonable and cannot be supported having regard to the evidence" (s 6(1) of the Criminal Appeal Act 1912) were authoritatively stated by the High Court in M v The Queen (1994) 181 CLR 487 see also MFA v The Queen (2002) 213 CLR 606. I considered them in R v BJB [2005] NSWCCA 441. 15 When determining the issue appropriate regard must be had to the fact that the jury is the body entrusted with the primary responsibility for determining the guilt or innocence of the accused. The jury has the benefit of seeing and hearing the witnesses. 16 The Crown case was dependent upon the evidence of Mr Wardle. Counsel for the defence identified a number of inconsistencies in Mr Wardle's evidence which were highlighted by trial counsel in his closing address. They related to particular aspects of the relevant events none of which was central to the Crown case. 17 These inconsistencies were also discussed by the Crown Prosecutor in his closing address. Accordingly the jury was properly informed of the appellant's submissions in relation to Wardle's evidence and was given an opportunity to effectively evaluate it. 18 Merely because there are inconsistencies in the evidence of a witness it does not follow that it should be rejected either in whole or in part. There are many reasons why inconsistencies may emerge in an account of an event by a person who has been physically threatened and subject to inordinate stress at the time the events occur. See "Who is telling the truth? Psychology, common sense and the law." (2006) 80 ALJ 655; see also R v Tubou [2001] NSWCCA 243 at [38]. 19 There was a deal of evidence which supported aspects of Mr Wardle's version of events which the jury was entitled to take into account. This evidence included:

(a) The evidence of the complainant's flight from the bus. Mr Wardle's evidence was he pretended to be sick and ran to the bus driver and got him to stop so he could alight. Mark Keeling saw Mr Wardle on the footpath after the bus had stopped. The jury were entitled to accept this evidence as being consistent with Mr Wardle's account of his escape from men that he feared. (b) A number of witnesses described Mr Wardle as appearing to be very distressed immediately after the incident. Mr Grono described Mr Wardle as "obviously upset and distressed … sort of crying, tears rolling down." His sister who collected him from the bus depot described him as "an emotional wreck, he was just bawling his eyes out." Const Bongiorno and Snr Const Watson who attended the depot to speak to the complainant also observed him to be distressed. (c) Mr Wardle complained that "he'd been robbed or rolled or something like that" to Mr Keeling immediately after leaving the bus. Mr Wardle borrowed a telephone to telephone the police, his sister and another friend to complain to them about what had happened. (d) There was evidence of telephone calls made from the vehicle. One of the telephone calls was made by Mr Wardle to his friend Mark McMillan. Mr McMillan gave evidence that after being woken by the call the conversation went "downhill" and then "it just went silent" He then heard muttering in the background and the phone was hung up. This is entirely consistent with Mr Wardle's account that his telephone was at this time taken from him by Pritchard. 20 The trial judge instructed the jury that before they could convict the appellant of any count they would need to be satisfied beyond reasonable doubt with respect to Mr Wardle's honesty and reliability . Although the jury were required to consider Mr Wardle's evidence carefully and assess whether the identified inconsistencies had the consequence that they could not be satisfied beyond reasonable doubt. I am satisfied that a guilty verdict was available. 21 I reject ground 2 of the appeal.

Ground 3(a): that there has been a fundamental failure of procedure going to the root of the trial in that the trial judge did not direct the jury in her summing up that as a matter of law it was open to them to find the appellant guilty of the basic offence pursuant to s 86(1) of the Crimes Act 1900 (NSW), even though the appellant had been charged with the aggravated form of that offence. 22 The appellant contends that s 86(4) of the Crimes Act which provides that if not satisfied on the evidence that an accused is guilty of the aggravated form of an offence a jury may nevertheless return a verdict of guilty to the lesser offence requires the trial judge in every case where the aggravated offence is charged to direct the jury that they may bring in a verdict on the lesser offence. I reject the submission. In the present case if the appellant was to be convicted of an offence against s 86 he could only have been convicted of committing the offence in company. This was the case presented by the Crown and either the appellant was guilty of that offence or he should have been acquitted. If the trial judge had raised s 86(4) of the Crimes Act with the jury it would have raised the possibility of a compromised verdict which, if the jury were unable to return a conviction for the aggravated offence may have been the result. 23 There is no rule of law or practice that in every case in which an alternative count is provided by law the jury should be directed in terms of the alternative count. Of course, where the issue is properly raised a direction must be given, even when such a direction is not sought; see Pemble v The Queen (1971) 124 CLR 107. However, before an alternative count must be left to the jury there has to be "viable case" for that count; R v King (2004) 59 NSWLR 515. 24 In the present matter there was no viable case for the suggested alternative count. The evidence in support of the aggravated kidnapping count relied on the evidence of Mr Wardle. His evidence was that he was in the back seat seated between the appellant and an unidentified man when the appellant produced a knife and the unidentified man a gun. There was simply no suggestion that the appellant kidnapped acting alone and without the assistance of the other men. 25 Leave to argue this ground of appeal is required under r 4 of the Criminal Appeal rules. In my opinion leave should be refused.

Ground 3(b): that there has been a fundamental failure of trial procedure and a consequent miscarriage of justice in that the trial judge failed to explain how the relevant law concerning take for advantage and robbery in company should be applied to the facts of the case and further failed to collect a "resume of the evidence which relates to each of those ingredients (of the offences) and a brief outline of the arguments which have been put in relation to that evidence" per the court: R v Zorad (1990) 19 NSWLR 91 at 105. 26 Although no point was raised at the trial the appellant submitted that the summing up did not contain "a collected resume" of the evidence which related to each ingredient of each offence and an outline of the arguments which had been put in relation to that evidence. For this submission the appellant relies upon the decision of the court in R v Zorad at 105. 27 The trial in Zorad took place before the enactment of s 161 of the Criminal Procedure Act 1986 and its predecessor s 405AA of the Crimes Act 1900. Section 161 provides: "(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. (2) This section applies despite any rule of law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial." 28 Section 405AA was considered by the High Court in Domican v The Queen (1992) 173 CLR 555. When commenting on the section the majority said that a trial judge need not summarise the evidence if he or she was of the opinion that a summary was not necessary. The issue is one of fairness. A trial judge will be obliged to refer to evidentiary matter or argument if the reference is necessary to ensure that the jurors have sufficient knowledge of the law and an understanding of the relevant facts to be able to determine the matter. The need for guidance by the trial judge will depend upon the issues which arise during the course of the trial and may be influenced by the length and complexity of that trial: see R v Williams (1999) 104 A Crim R 260. 29 In R v Davis [1999] NSWCCA 15 Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) said: "The trial judge, with the consent of the parties, summed up without reference to the evidence. That was a course properly open to him under s 405AA of the Crimes Act , in a trial that had lasted three days, in which there were only six witnesses in the Crown case and none in the defence case. On one view, that approach worked in favour of the appellant, since it avoided the one-sided appearance that may have been presented by a reiteration of the evidence called by the Crown, and silence in relation to the defence. Attention was, however, drawn to the observations of this Court in RJC CCA NSW 18 August 1998, unreported, as well as in Zorad (1990) 19 NSWLR 91 at 105 and Condon (1995) 83 AC 335 as to the need for the jury to be instructed as to the issues of fact and law which arise in a trial, and where appropriate, to have the evidence to be related to those issues. Those requirements are to be understood in the light of the explanation in Domican (1992) 173 CLR 555 at 561, which was discussed as recently as yesterday by this Court in Williams NSWCCA 9, 23 February 1999 unreported. The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary the evidence and of the submissions, than the judge proposes." 30 The appellant's trial took place over a number of days. However, he did not give evidence which was confined to the Crown case against each of the accused. The trial judge gave the jury written directions in relation to each count and in the usual manner trial counsel were provided with an opportunity to comment on those directions. The trial judge gave oral directions as to the elements of each offence and also directed the jury in relation to the law respecting joint criminal enterprise. 31 In relation to count 1 her Honour gave the following direction: "Now the elements of that are firstly that the accused took Mr Wardle and this was done without his consent and with the intention of obtaining an advantage to rob him. Taking a person includes causing him to accompany them against their will. The accused must know that Mr Wardle accompanied them against his will or were recklessly indifferent about that; then they unlawfully took him if that is so. Reckless indifference means that the accused realised that Mr Wardle might not consent to the taking but nonetheless went on and took that risk. The advantage sought by the accused was to rob Mr Wardle. Advantage means a benefit or a desired outcome. It need not be the payment of money. It is not necessary to show that the accused actually received the benefit or desired outcome, just that they intended to receive it. The Crown says that all three accused took Mr Wardle on 14 November 2004 with the intention of robbing him. If you are satisfied beyond reasonable doubt the accused did so then the element would be satisfied." 32 In relation to count 3 her Honour gave the following direction: "The third charge does not involve Mr Ailua but jointly charges Mr Pritchard and Mr Mohamed with robbery in company in the sum of $400 being the property of Mr Wardle. At the heart of the offence of robbery is the use of force or threats which cause the victim to part with his property. Before you could convict the accused of robbery whilst in company you would have to be satisfied beyond reasonable doubt of each of the following elements or legal ingredients of the offence. Firstly, the elements of robbery in company are that the accused with an intent to steal took property from Mr Wardle by the use of violence or putting him in fear and at the time of the robbery the accused were in company of others and intended to deprive Mr Wardle of the property permanently. The Crown must prove beyond reasonable doubt that there was a taking and carrying away by the accused of the property of another and that the accused at that time had the intention to permanently deprive Mr Wardle of it. All that is required to establish a taking and carrying away is that the property must be moved by the accused. The Crown must prove that the property was taken without the consent of the owner and that it was taken by putting Mr Wardle in fear." 33 Her Honour also gave the jury a direction about the meaning of the element of being "in company." When she had completed this direction she gave the jury a summary of the evidence in support of the Crown case. 34 The issues in the trial were not complex. The fundamental issue was whether the jury should accept Mr Wardle as a truthful and reliable witness. I am entirely satisfied that the directions which her Honour gave and her references to the evidence in the Crown case were a fair summary. Her Honour also appropriately referred to the arguments of defence counsel. 35 Defence counsel made no complaints at the trial and accordingly leave to argue this ground of appeal is required. I am of the opinion that leave should be refused.

Order 36 In my opinion the appeal should be dismissed. 37 GROVE J: I agree with McClellan CJ at CL. 38 SIMPSON J: I agree with McClellan CJ at CL. **********

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