Puchalski v Regina

Barca v The Queen (1975) 133 CLR 82 House v The King (1936) 55 CLR 499 Knight v The Queen (1992) 66 ALJR 860 M v The Queen (1994) 181 CLR 487 CASES CITED: Martin v Osborne (1936) 55 CLR 367 Plomp v The Queen (1963) 110 CLR 234 R v Teasdale [2004] NSWCCA 91 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Hillier (2007) HCA 13

PARTIES: Benjamin Joshua Puchalski v Regina

COUNSEL: (A) P J Hamill SC & A Francis (C) D Arnott SC & J Dwyer

SOLICITORS: (A) S E O'Connor (LAC) (C) S Kavanagh Solr for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/763 McCLELLAN CJ at CL HISLOP J SMART AJ

Benjamin Joshua Puchalski appeals against his conviction of maliciously shooting at Rudi Waterman with intent to do grievous bodily harm to him (s 33 Crimes Act ) and that of maliciously discharge loaded arms with intent to do grievous bodily harm to Rudi Waterman (s 33A). There were at least two occasions on which shots were fired. There was no application for leave to appeal against sentence.

4 The issue in the trial was whether the appellant was the person who fired the shots. There was no witness who said he saw the appellant fire the shots. The Crown asked the jury to conclude that the appellant was the shooter from a combination of circumstances. The grounds of appeal which include that the verdict was unreasonable mandate a careful review and consideration of the evidence.

5 On 21 February 2004 Rudi Waterman had stopped at traffic lights at the corner of Gertrude Street and the Princes Highway, Arncliffe. Despite Mr Waterman's vehicle being in the left hand lane he wanted to turn right on to the Highway. When the left turn light went green, Mr Waterman's vehicle remained stationary. This annoyed the driver of a RAV four wheel drive vehicle immediately behind. An altercation occurred. At various times each alighted from his vehicle, abused the other and returned to his vehicle. Mr Waterman's vehicle turned right with the lights but it was chased by the driver of the four wheel drive vehicle. Mr Waterman said that after he had turned the corner he noticed the driver of the four wheel drive vehicle leaning across towards the passenger's side window holding a silver pistol. Two shots were fired. Mr Waterman moved his vehicle forward into the centre lane of the Highway. The offender fired further shots, one hitting the boot of Mr Waterman's car. Mr Waterman sped off and a little later turned left into a side street and immediately rang 000. He noted the number plate of the RAV 4.

6 The RAV 4 used in the offence was registered to Zac Bazzi, the owner of AFCO (or Avco) All Metal Work Pty Ltd. The company leased an area at 104-108 Princes Highway, Arncliffe. It occupied part as its workshop/factory. Part of the space was sublet to an elderly man called Sam Sharak who detailed cars and part to a younger man called Frank Faitoni who did sheet metal work. Some residential space was leased to BJ (the appellant) whom Mr Bazzi believed was about 30 although he looked younger and who was of medium height, slim but fit build, had bluish eyes and hair long enough to tie up in a pony tail.

7 Mr Bazzi and BJ were friends. The company or Mr Bazzi employed Messrs Adel Abdul Messih and Basem Albaghi in the workshop/factory. On 9 January 2004 Mr Bazzi bought a tan or gold coloured RAV 4. On 27 January 2004 he flew overseas. Before he left he asked his brother in law who was called Lucky to look after the finances of the business. He left the RAV 4 and two other utility vehicles (utes) that he had in conjunction with the business at the factory. He said his practice was to allow workers in his business to use the utes if they needed them and even sometimes the RAV 4. He let BJ use the RAV 4 and the other vehicles. Mr Bazzi said that he left the keys to those three vehicles on the board inside the office when he went overseas and told BJ and the other workers that they could use those vehicles for work, if they needed to do so.

8 He remained overseas until 19 March 2004. When he came back, he found his business had sustained "big damage." The staff he had employed in the business were no longer there, his RAV 4 was no longer there and BJ was no longer there, but the belongings of BJ and his girlfriend were still there in the residential unit. He endeavoured, unsuccessfully, to contact BJ. Eventually he reported that the RAV 4 was missing. The two utes were still at the factory. Neither Mr Messih nor Albaghi were able to help with the whereabouts of the RAV 4. About a month after he arrived back he received a telephone call from a person whose name he did not know as to where and when he could recover the RAV 4. He followed the instructions recovered the RAV 4 and notified the police.

9 Sam, who was Arabic, sometimes received help from his family and sometimes from Middle Eastern friends. Mr Frank Faitoni who was Lebanese and had his own sheet metal business sometimes received help from Middle Eastern people.

10 Mr Bazzi said that he had known the appellant for two or three years at the time of going overseas. Mr Bazzi said that the business did not have regular hours. On Saturdays people would drop in, do work for themselves and leave. His two regular employees were Messrs Messih and Albaghi. Some of the people who dropped in were of Lebanese or Middle Eastern descent.

11 Mr Bazzi said that in about May 2004 Albaghi was about 27 or 28 years of age, just above medium height, of Mediterranean appearance with dark skin. He put gel on his hair and it stood up.

12 Mr Bazzi said that in general everyone at his workshop used the two utes and that if the RAV 4 was there and the worker had no car, the worker could use it. Those he employed could take the keys off the board as a matter of course. He could not say whether he indicated before going overseas that BJ was to be the boss of the factory. "BJ could speak English and knows the way" and "he knows how to do the job." The men acted as a team and they all helped together to get the job finished.

13 Mr Bazzi described BJ as a person having light skin and freckles who did not look foreign. BJ was masculine, strong, slim and fit with muscles in his arms and body in general.

14 Mr Bazzi said that his nephew Monza, who was about 20 years of age or a little younger came to the premises on occasions but not when BJ was working there.

15 Mr Bazzi's evidence about whether Albaghi drove the RAV 4 in the 18 days between its acquisition and his departure overseas was fairly unclear. He was authorised to drive it if the need arose and he did not have a car. At another point Mr Bazzi said that before he went overseas he saw Albaghi driving the RAV 4. Mr Bazzi said that Albaghi had to ask him if he could drive the RAV 4 if Mr Bazzi was at the factory.

16 The appellant placed reliance on this as evidence affecting the credit of Mr Albaghi who said that he had never driven the RAV 4. This material will be considered further when dealing with Grounds 4 and 5. Much depends on what evidence the jury accepted.

17 It will be necessary to look more closely at what happened while Mr Bazzi was overseas and whether BJ had the approach stated by Mr Bazzi as to driving the RAV 4.

18 I return to the events on the Saturday morning. Mr Waterman said that a car driven by a man called "Darren" pulled up alongside him in Gertrude Street in the lane for right turning vehicles. Darren worked at the same place as Mr Waterman, but Darren was not somebody whom he knew. Mr Waterman acknowledged Darren, whose surname was Hickey. There is no need to recount the details of the vigorous altercation between Messrs Waterman and the driver of the RAV 4 which Mr Hickey observed.

19 Mr Waterman said that after turning right onto the Highway the driver of the RAV 4 pulled up alongside his car quite quickly and then slowed down. Although sitting in the driver's seat of the RAV 4 the driver was leaning towards the left towards Mr Waterman and pointing a silver pistol towards him. Mr Waterman saw a flash, heard a loud bang and heard a second bang. There were two shots very close together. He went through a red light at the next set of lights as did the shooter, the pursuer. Mr Waterman then moved into the centre lane, continued accelerating and weaved into the traffic. He heard more pistol shots. Mr Waterman continued northwards along the Highway. He continued to observe in his rear vision mirror and saw the man who had been pursuing him turn left into a side street (Station Street). He turned into Railway Road at Sydenham and called 000. A short time later a police vehicle arrived. He gave the police this description of the shooter: "A male person being no more than 25 years of age, of Middle Eastern appearance, frizzy hair pulled back, in a pony tail. The colour of his hair was two tone, as if it was streaked with light brown and dark brown colouring. He had no facial hair but had a stubble like he had not shaved in a day or two. He was five foot ten inches tall. Thin build and wearing dark tracksuit pants and a black singlet top with red trimming around the neck area and the sleeves."

20 Mr Waterman said that he would describe the shooter as thin as in skinny. He did not recall the shooter as being a person who stood out as having a particularly muscular build upon his torso. Mr Waterman described the shooter as having thin arms.

21 Mr Waterman believed the shooter may have been wearing a gold necklace as well. He had never previously met the shooter and told the police that he was very scared when he first saw the gun.

22 Five days later on the Thursday, at a police station, he looked at a series of 12 photos. After looking at the photos Mr Waterman told the police that the "offender was definitely Lebanese." Mr Waterman agreed that he thought that he meant to convey that the offender had general dark colouring by way of skin, eyes and hair. Mr Waterman did not recall the colour of the offender's eyes. Mr Waterman said that the offender's mannerisms and what he was wearing left him with the impression that the offender was Lebanese.

23 While looking through the photographs when he came to photograph 10 (being that of the appellant) Mr Waterman said: "His face is sort of shaped like that. But um, more um, middle eastern. I'd say probably the closest one is maybe this fella but -"

The police officer asked Mr Waterman "What about that one is it that makes you think its close to it?"

Mr Waterman replied: "Just the shape of his face, probably, the frizziness of his hair, if he let his hair out it would be frizzy, but um, he was sort of definitely more Middle Eastern than, I think these guys look Australian."

24 On being asked to say out of ten how positive he was of that photograph, Mr Waterman responded:

"… I would say ten, that's not him definitely. I think his nose is wrong as well … He is definitely more Middle Eastern looking than him."

25 In his evidence in re-examination Mr Waterman said that what he meant by "more Middle Eastern" was that the person who was the offender was not Australian and maybe a "little bit darker in skin tone than could be seen of the person the subject of photograph 10. That photograph has a washed out look and shows a person having a light skin colour.

26 Mr Waterman said that the car driven by the shooter was coffee in colour and that he did not think it was silver. He was taken to his statement on the day of the incident, that is:

"I'm still unsure whether it was a van or a small four wheel drive similar to a Toyota RAV 4 but it was silver in colour."

27 Mr Waterman said the vehicle was an unusual colour and glistened in the sun and in the shade it was a little different again. He was not sure of the colour. It would not have been all silver. Mr Waterman insisted that he was not mistaken about the number on the number plate. He wrote it down. Mr Waterman said that there were a few holes in the car he was driving after this incident. He said that more than four shots were fired. He believed it was around seven.

28 Mr Waterman believed the black singlet top with red trimming around the neck and sleeves he was shown was similar to the one that he believed the driver of the RAV 4 was wearing. He was only shown the one black singlet. In later evidence it was established that the singlet shown had the appellant's DNA on it. It was taken from the residential unit occupied by the appellant and his partner at 104-108 Princes Highway, Arncliffe, during the execution of the search warrant six days after the shooting.

29 Mr D R Hickey recalled pulling up his vehicle in Gertrude Street at the lights preparatory to turning right onto the Princes Highway. He saw and acknowledged Mr Waterman. Mr Hickey saw in his left hand side mirror that behind Mr Waterman's car, there was a vehicle, either a van or a four wheel drive. Mr Hickey believed it was a beige or brown colour. There was an altercation between Mr Waterman and the other driver. Mr Hickey noticed that the arm of the male driver of the van/four wheel drive was "sort of brownish and had a tattoo." Mr Hickey was not sure of the details of this man's general description. Mr Hickey turned right when the lights changed and kept going.

30 Mr Hickey made a statement to the police on 23 February 2004 in which he said "I can't even describe what this male person looked like." Mr Hickey also told the police that the arm was "definitely dark in colour or at least had a nice tan." Mr Hickey recalled the tattoo and believed it was on approximately the outside of the arm about the mid-point between the shoulder and the elbow. There was a tattoo on the inside of that arm but on the lower section of that arm.

31 Mr Anastakis was working in a location near the intersection of the Princes Highway. He heard and saw two people arguing. Both vehicles turned right on to the Princes Highway. He heard something that sounded like a taxi backfiring. He saw both vehicles go through the red light at the Arncliffe Street intersection.

32 Mr A A Messih arrived in Australia from Lebanon in 2001. He worked for Mr Bazzi after his arrival. For a period of four to five months in 2003 he did not work at the Afco factory. He returned and worked there from about April 2003, there was a new employee called Bassem (Albaghi). Sometimes a man known as BJ was at the factory. As at early 2004 he thought that BJ was about 24, 25 years of age, about 170-175 cm tall, had a build which was a little bit thinner and shorter than him (Mr Messih), with light skin on his face. He had big "boofy" hair which he tied at the back. BJ looked Australian. He had a tattoo on his arm. Mr Messih said that before he went overseas Mr Bazzi told him that BJ was going to be in charge of the factory. Mr Messih said that when he went back to work in 2003 Mr Bazzi had the RAV 4 and that there were two trucks in the business. Mr Messih said that he only drove the RAV 4 once and that was while Mr Bazzi was still in Sydney.

33 Mr Messih said that he never saw Mr Albaghi drive the RAV 4 and that he and Albaghi worked on exactly the same days. Mr Messih said Mr Bazzi left the RAV 4 with BJ and also his mobile phone. He saw BJ use the RAV 4. Mr Messih said that BJ drove the RAV 4 everywhere, he drove it to work and to his side job; he had it 24 hours a day.

34 Mr Messih said in cross-examination that he did not think that Mr Bazzi gave instructions to others that they could use the RAV 4 when they needed to because BJ was the only one using it - "he left the RAV 4 to BJ". BJ came back from the airport in the RAV 4 after dropping Mr Bazzi at the airport. Mr Messih added, "He [Bazzi] didn't even leave the RAV 4 with his wife. He left it with BJ". He was the person who took over. Mr Messih said that he did not know whether persons other than BJ used the RAV 4 in the two or three days he was working at the factory after Mr Bazzi left for overseas. Mr Messih said that the only vehicles the employees at the factory were using were the trucks. They did not use any other vehicles.

35 Mr Messih agreed that he left the Afco factory two or three days after Mr Mr Bazzi went overseas. He and BJ had a disagreement. Mr Messih said that he returned to the factory about 25 February 2004 to see if Mr Bazzi had returned. He saw BJ, Lucky and an Asian looking man (Indian or Pakistani). BJ told him they had closed down the factory. Albaghi was not there.

36 Mr Messih said that on this visit he noticed that BJ had changed his hairstyle by cutting his hair short, leaving it "a little bit long at the back". It was a ponytail. Previously BJ wore his hair "big" and "long".

37 In the latter half of January 2004 and before Mr Bazzi went overseas BJ asked Mr Messih to come to the unit where he was living. BJ showed Mr Messih, a fitter and turner, some seven guns. There were different types which Mr Messih described. One of the handguns was a six mls white chrome pistol. BJ also showed Mr Messih a box containing a large quantity of bullets. Mr Messih said that BJ wanted to modify the police gun, changing it from 8 mls to 9 mls which was the normal size found on the market. BJ said that he would talk to Mr Bazzi about it and ask him. Subsequently BJ told Mr Messih the change would not be made because Mr Bazzi did not want to change it.

38 Mr Messih said that he reported to the police that BJ had firearms and that he had to ask Mr Bazzi about modifying the firearms. This was within a few days after he left the factory in late January 2004.

39 Mr Messih said that in the two or three days he was at the factory after Mr Bazzi left for overseas Monza, Mr Bazzi's nephew, was at the factory frequently. Mr Messih said that he had a conversation with Monza about firearms. Monza owned some guns. Mr Messih and Monza went upstairs to a room Monza used and Monza showed Mr Messih one 6 mls automatic gun which was chrome in colour. It was not a revolver as it did not have a barrel.

40 Monza was described by Mr Messih as looking 18 or 19, having black not brown hair, a thin build and about 180 cm tall. Monza's hair was almost all shaven with some hair looking like a hat on top and a "V" at the back.

41 Mr Messih said that BJ's face was white and freckly, he had light green eyes. He was thin but had a sportsperson's body.

42 Mr Messih said that before he left in January 2004 a lot of people used to frequent the factory, but he did not know their names and did not have any contact with them.

43 Mr Messih agreed that the police contacted him and asked him to go to the Afco premises on 25 February 2004 to see who was still at the premises. Mr Messih maintained he also went there to see if Mr Bazzi was there and if any work was available. That was the day on which BJ sacked him. Albaghi was not at the factory on his visit.

44 Mr Messih said that he had seen one tattoo on BJ. He believed it was on BJ's left arm. It was either on the inside of the arm or on the upper outside of the left arm; he was not quite sure.

45 Mr Messih agreed that BJ did not work at the factory every day and only assisted from time to time. Mr Messih said he was responsible for the work in the factory and that he was in charge of Albaghi and his work.

46 On 23 February 2004 Det Snr Cons Flanagan became the officer in charge of the investigation of the shooting.

47 He had interviewed Mr Messih on 11 February 2004 after Mr Messih made initial contact with police. Mr Messih told Det Flanagan of BJ having firearms. Mr Messih stated that he disliked BJ and disagreed with firearms. Mr Messih later told Det Flanagan that BJ did not like him (Mr Messih). On 23 February 2004 Mr Messih told Det Flanagan that BJ had brought new workers to the factory. Det Flanagan arranged for Mr Messih to visit the factory on 25 February to see who was there and also, according to Det Flanagan to observe discreetly whether the RAV 4 was there. Mr Messih reported that BJ was in the office along with two unknown males. Det Flanagan was present when a search warrant was executed on 27 February 2004 and a black singlet with red trimming was recovered from the residential unit. That unit appeared to be occupied.

48 The police record of the description of BJ included the following details: "Date of birth - 28 August 1978

172 cms tall, muscular, Caucasian, fair complexion, brown hair colour, unshaven, blue eyes." 49 Det Flanagan was aware that Monza Bazzi had a relationship to Mr Z Bazzi and attended the Afco premises at Arncliffe. Det Flanagan was also aware that he was arrested in June 2004 with a silver handgun in a motor vehicle. No attempt was made to take a statement from Monza Bazzi in respect of his observations of the workings of the Afco premises around February 2004.

50 BJ was first spoken to by officers on the North Coast area in respect of a dangerous driving offence concerning a black Monaro. He gave a false name. He was arrested in Kyogle where his sister lived. It seems that he had been staying in that area.

51 The appellant did not give evidence. He summarised his case thus: (a) the victim was correct when, having been shown a photograph of the appellant in a photographic array, he positively excluded the appellant as resembling the person who shot at him;

(b) the appellant was not the shooter and the Crown had not negatived the reasonable possibility that someone other than the appellant was the shooter, namely, someone whose appearance was consistent with the description given by the victim;

(c) there were any number of persons of "Middle Eastern" appearance who frequented the AFCO factory where the car was ordinarily left;

(d) there was no evidence as to who had access to the car on the day of the shooting and at least one other person of Middle Eastern appearance had been seen by Mr Messih to have driven the car in the past;

(f) Mr Hickey incorrectly positioned the tattoo on the shooter's arm;

(g) the appellant's pale skin colour, muscular build and absence of tattoo in the area nominated; these were established by his demonstration in court when he removed his shirt.

(h) on 25 February 2004 Mr Messih did not observe the RAV 4 at the factory;

(i) it was disputed that the appellant had shown Mr Messih firearms in the weeks leading up to 21 February. Further, Mr Bazzi and his nephew, Monza, also had an interest in guns. (It was not the defence case that Monza was the shooter) ;

(j) The Crown had not negatived the possibility that someone other than the appellant was the driver of the RAV 4 on 21 February 2004 There was no evidence that BJ had not shown guns to Mr Messih but Mr Messih was cross-examined by BJ's counsel to that effect. The jury, acting reasonably, were entitled to accept the evidence of Mr Messih on this point.

52 Prior to addresses counsel for the appellant sought clarification as to the extent to which the Crown sought to rely upon consciousness of guilt. The Crown Prosecutor responded that she was proposing to put it this way (T186): "that the [appellant] had absented himself and it was a fact that the car was also absent as and from the date of the search by the police and that that absence continued unexplained as did the absence of the car continue unexplained, until he was ultimately arrested when giving a false name to the police."

as simply circumstances on which the Crown relied. The prosecutor did not intend to advance a submission of consciousness of guilt.

53 Subsequently on 23 November the judge said that she was going to withdraw from the jury's consideration the fact that the accused "absented himself after the commission of the offence" and that she was going to tell the jury that they could not use that in the Crown's circumstantial case. She directed the jury that in the circumstances of this case, they would not be able to use the fact that BJ was away from Avco and was located in Kyogle on 1 February 2004 as in any way part of the Crown's circumstantial case against BJ nor could they use the fact that BJ gave the police who spoke to him in Kyogle, a false name. The police in Kyogle wanted to speak to BJ about a driving matter apparently. The date of 1 February was obviously incorrect. The judge remedied that slip when she subsequently said: "… you cannot use the fact that [BJ] gave the police a false name on 1 April nor that he was absent from Avco from 25 February - or more correctly, he certainly was not there on 27 February when the police officers executed the search warrant and you just disregard that evidence as part of the Crown case."

54 It will be apparent from this brief summary that in view of the victim saying with substantial reasons that the appellant was not the shooter, that a careful analysis of the circumstances revealed in the evidence was required to determine whether it could be concluded that the verdict was unreasonable.

Appeal Grounds 1 and 2 read: 1. The verdict is unreasonable.

2. The trial judge erred by failing to direct the jury that if they regarded one or more of the facts as intermediate facts or indispensable links in their chain of reasoning towards guilt they would need to be satisfied of the fact or facts beyond a reasonable doubt before convicting. These may be taken together.

55 In Martin v Osborne (1936) 55 CLR 367 at 375 Dixon J said: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or to be connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed."

In Plomp v The Queen (1963) 110 CLR 234 at 243 Dixon CJ acknowledged the difficulty in stating the rule. So did Mason CJ, Dawson and Toohey JJ in Knight v The Queen (1992) 66 ALJR 860 at 863.

56 In Barca v The Queen (1975) 133 CLR 82 at 104 Gibbs, Stephen and Mason JJ said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v The Queen (1963) 110 CLR at 252; see also Thomas v The Queen (1960) 102 CLR 584 at 605-606. However 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in the evidence.' (*Peacock v The King (1911) 13 CLR at 661). These principles are well settled in Australia."

These principles must be applied in the present case.

57 In The Queen v Hillier (2007) HCA 13 at [46] the joint judgment of Gummow, Hayne and Crennan JJ remarked, "It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances." Reference was made to the classic remarks of Dixon J in Martin v Osborne and those of Dixon CJ in Plomp v The Queen . The joint judgment added: "…in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."

58 The joint judgment at [48] emphasised that neither at trial nor on appeal is a circumstantial case to be considered piecemeal. That is an important factor to be kept in mind in view of the evidence of Mr Waterman that the man shown in photograph 10 was not the shooter. The joint judgment also emphasised by reference to the judgment of Dixon CJ in Plomp that all the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. I respectfully follow that approach. A reference should also be added to the re-affirmation by the joint judgment at [20] of what was said in the joint judgment in M v The Queen (1994) 181 CLR 487 at 494-495.

59 In Shepherd v The Queen (1990) 170 CLR 573 Dawson J at 578 discussed when it was necessary or desirable to give a direction as to the proof of intermediate facts beyond reasonable doubt. Dawson J envisaged that such facts would be identified to the jury. He remarked that a direction as to proof of intermediate facts beyond reasonable doubt where they were considered as indispensable to proof of ultimate guilt should not be given where it was unnecessary or confusing. Much depends upon the particular case. In the present case the conclusion which the jury was asked to form was one of guilt from all the circumstances. I will return to this issue.

60 In the course of her summing-up the judge directed the jury that they must be satisfied beyond reasonable doubt that the appellant was the shooter and that the conclusion must be the result of a rational and logical process of reasoning based on the facts they found proved.

61 The judge summarised for the jury the circumstances on which the Crown relied and also those on which the appellant relied as pointing away from him being the shooter. In this Court the Crown relied on submissions generally to the same effect, but more expansively expressed, namely: (a) At the time of the offence the appellant was one of a very limited number of people who had access to the RAV 4 driven by the shooter. The vehicle's owner, Mr Bazzi, was overseas. Mr Bazzi had left it for the use of his two employees Mr Messih and Albaghi if needed and the appellant who took control. The key was left on a board in the office.

(b) The appellant, who lived in a flat attached to the factory, used the vehicle exclusively during Mr Bazzi's absence overseas.

Comment: This matter depended on the evidence of Messrs Messih and Albaghi. Mr Messih was not employed at the factory at the time of the shooting and whilst he observed the appellant on occasion driving the RAV 4 during the three day period after Mr Bazzi went overseas, he did not know who else drove the car. Mr Messih left the factory two or three days after 27 January 2004, and could not give evidence as to who drove the RAV after he (Mr Messih) left. Mr Albaghi's evidence was contained in the committal depositions. He stayed on at the factory for two or three weeks after Mr Messih left and until the factory closed. Albaghi said that only BJ had the keys to the RAV 4 and that he (Albaghi) never drove the RAV 4; only BJ and Mr Bazzi drove that vehicle. Albaghi said that he drove the silver utility.

(c) The appellant had possession of a number of guns and ammunition including a white chrome 6mm pistol. The appellant had these in his residential unit and showed them to Mr Messih.

Comment This depended upon the evidence of Mr Messih which was disputed in cross-examination but there was no evidence to the contrary.

(d) The finding by the police in the residential unit occupied by BJ of a black singlet with red trimming around the neck and sleeves bearing the appellant's DNA.

Comment: The police search (in execution of a search warrant) took place on 27 February 2004, six days after the confrontation and the singlet could have been worn after 21 February 2004. Black singlets with trimming are common items of apparel worn by many men. Mr Waterman described the shooter as wearing a black singlet top with red trimming around the neck area and the sleeves.

(e) The description of the shooter given to police by the victim was similar to the appellant in important respects. The victim told police that the shooter was 25, 5'10" (175 cms) tall, thin, Middle Eastern mannerisms and coloured skin, dark brown frizzy hair pulled back in a pony tail. BJ was 5'8" (172 cms) tall. Mr Bazzi described BJ as about 30 but looked younger, slim with hair long enough to tie up in a ponytail.

Comment: The height estimate of the victim was reasonably close as was the age estimate. BJ was regarded in 2004 as being slim and athletic. He had long "boofy" hair which was caught up at the back in a pony tail. It had been cut subsequently.

(f) BJ had a tattoo on one of his arms. This was noticed by Mr Hickey.

Comment: I t is not of importance that Mr Hickey placed it on the upper outside of the arm and whether it be on the left or right arm. It was on the lower inside portion of the arm. What was of importance was that Mr Hickey saw the tattoo on an arm of the shooter. He was able to describe it in part.

(g) Any other persons who might have had access to the vehicle were excluded in one way or the other. Mr Messih and Albaghi excluded themselves from driving the vehicle and neither fitted the description of the shooter. Neither of Bazzi's (or his company's) sub-tenants or sub-licensees had anything to do with the RAV 4. Neither fitted the description of the shooter. Two relatives who came to the factory, namely Lucky, his brother-in-law and Monza, his nephew, did not fit the description of the shooter. Lucky was in his 40's and Monza was about 18 or 19, did not have a driver's licence and had a distinctive hair style.

Comment: It is far fetched to contemplate any visitor to the site, even if friendly with Bazzi or any of the other men obtaining the keys to the RAV 4 and driving it. Such a visitor had to have access to guns and ammunition. While Mr Mr Bazzi may have put the keys to the RAV 4 on the keyboard in the office there is evidence capable of being accepted by the jury, acting reasonably, that once Mr Bazzi left for overseas BJ took control of and possession of the keys to the RAV 4. 62 While the matters set out above are the principal matters on which the Crown relied both in this Court and at the trial, the Crown relied on the whole of the circumstances which emerged in the evidence. These included that it was not disputed that the RAV 4 was the vehicle from which someone fired shots on 21 February 2004, that BJ was overseeing the operations of the factory, that it was not reasonably possible that anyone else would be permitted to drive the RAV 4 on the Saturday morning, and that the RAV 4 was not at the factory when Bazzi returned.

63 Notwithstanding Mr Waterman excluding the appellant as the shooter, his description of the shooter as having a Middle Eastern appearance and a darker skin colour than that appearing on the photographs of the appellant (photo 10) when all the circumstances proved in the evidence are assessed in combination the jury acting reasonably was entitled to conclude beyond reasonable doubt that BJ was the shooter. The evidence included that he took control of and possession of the RAV 4, that he lived in a residential unit at the factory where the RAV 4 was kept and had access to it on a Saturday morning and that he had a collection of guns and bullets including a white chrome pistol. BJ also had a black singlet with red trimming around the neck and sleeves with his DNA on it similar to or identical with the one worn by the shooter. After the incident the RAV 4 could not be located.

64 The jury, acting reasonably, were entitled to regard some of the matters on which BJ relied as not having the weight BJ sought to attach to them, for example, the incorrect positioning of the tattoo. It is not a reasonable possibility that persons of "Middle Eastern" appearance who visited the factory, gained access to the RAV 4. Nor is it surprising that Mr Waterman had difficulty in identifying the shooter from the photograph he was shown. Further, Mr Waterman's observations of the shooter took place in circumstances of considerable stress. All the circumstances pointed to BJ being the driver of the RAV 4 on the day in question.

66 In my opinion the direction suggested in Appeal Ground 2 was not required. It would not have conveyed much to a jury. Further, this was a case where the jury had to consider a range of circumstances and it was neither necessary nor desirable to single out particular matters. An overall approach to the evidence was likely to be taken. In her summing-up the judge told the jury: (a) they could only convict BJ if they were satisfied beyond reasonable doubt that the only conclusion that can be drawn from the facts they found proved is that BJ was guilty, and

(b) they must be satisfied that the conclusion that BJ was the shooter could actually be drawn from the facts proved to them by the Crown, and

(c) the conclusion that the accused was the shooter must be the only conclusion open on the facts they had found. If there was another reasonable explanation for the facts proved by the evidence which was the inconsistent with the guilt of BJ then they must acquit him. 67 In the present case where the issue was whether BJ was the shooter more was not required. In my opinion, the judge outlined the issue with clarity and gave the jury all the instructions needed.

Appeal Ground 3 in substance reads : "3 The trial Judge erred by not directing the jury that the Crown had not put to the victim that he was mistaken - (a) insofar as he excluded the appellant, as depicted in a photographic array, as the person who attacked him;

(b) in the description he provided of his assailant so far as it was inconsistent with the appearance of the appellant; The trial miscarried on account of the Crown relying on the proposition that - (c) the victim was mistaken in his observations of the assailant without putting to him that he was mistaken in relation to these observations;

(d) Mr Hickey was mistaken in his observations of the assailant without putting to him that he was mistaken in relation to these observations." 69 In support of this ground BJ submitted that it was the Crown case that Mr Waterman was mistaken, insofar as he positively excluded BJ as the shooter, and as to his observations of the man who attacked him as being, inter alia, of dark complexion, Middle Eastern appearance with a different nose from that which BJ appeared to have. BJ complained that none of these propositions were put to Mr Waterman at the trial by the Crown. Thus there was no basis for the Crown to contend on the issue of unreasonable verdict that Mr Waterman must have been mistaken, nor was it open to the jury to have regard to the possibility of mistake in the absence of any cross-examination on these facts.

70 BJ relied on the very different case of R v Teasdale [2004] NSWCCA 91 esp. at [17] and [18] where the Crown Prosecutor alleged in his final address that there was a conspiracy of silence between off-duty police to protect the appellant police officer because he was guilty of the offence charged. In substance there was an allegation that a class of witnesses had deliberately not told the truth. They were present in the hotel when the alleged assault had occurred.

71 There was no basis for the Crown to cross-examine either Mr Waterman or Mr Hickey. There was no room for the suggestion in either case that he had made a prior inconsistent statement or was not doing his best to tell the truth. Merely because a witness gives some evidence favourable to the case of an accused does not mean that the witness is unfavourable to the Crown. I agree with the Crown submission that the rule in Brown v Dunn is a rule of practice. It was implicit in the Crown case that Mr Waterman was mistaken in excluding the man shown in photograph 10 as the shooter.

72 In her opening address counsel for BJ told the jury the defence was that he was neither the driver of the vehicle nor the person who fired at the victim and that the victim agreed. She referred to the contents of the video of Mr Waterman examining the photos at the police station and what he said. She pointed out that the victim's observation of his assailant was somewhat lengthy. Counsel asserted that it was not a case where the victim might be mistaken about his observation or mistaken about saying that the accused was definitely not the person who assaulted him. Counsel stated that BJ was neither Lebanese nor Middle Eastern. He had pale skin. Counsel also referred to Mr Hickey corroborating that the assailant had a dark skin.

73 Counsel pointed out that there was no direct evidence against BJ and that the Crown did not seek to prove its case by direct evidence as that would be exculpatory. Instead the Crown relied upon circumstantial evidence.

74 Counsel told the jury that BJ did not take issue with these aspects of the Crown case: (a) that he had access to the RAV 4; and

(b) that he helped out at the premises from time to time and he helped Mr Bazzi from time to time; and

(c) there was a black singlet with red trimming found where he lived 75 The opening speech of his counsel reveals that BJ knew the case he had to meet and anticipated that the Crown would say that Mr Waterman, and to a lesser extent Mr Hickey, had been mistaken. Counsel tried to refute the Crown explanations in advance to destroy its circumstantial case.

76 Against this background the contention that the Crown should have put to Messrs Waterman and Hickey that they had made mistakes lacks weight.

77 There is substance in the Crown's submission that the references to a darker skin or complexion and "Middle Eastern" appearance cover much the same ground. The Crown did ask Mr Waterman what he meant by "more Middle Eastern": and he explained that he meant a little bit darker in skin tone than could be seen in photograph 10.

78 The Crown was not required to go further in the present case. Juries are at liberty to accept part of the evidence of a witness and not to accept other parts. This is especially so where the witness is honest but mistaken and therefore inaccurate as to some details.

Appeal Grounds 4 and 5 read (4) The trial judge erred in admitting the evidence of Basem Albaghi pursuant to s 65 of the Evidence Act over objection.

(5) The trial judge erred in refusing the appellant's application for a discharge of the jury on the basis that Basem Albaghi was unavailable for cross-examination. These Grounds will be taken together.

80 On 13 October 2005 Basem Albaghi was served with a subpoena to attend at Court on 14 November 2005 and give evidence in the appellant's trial. Albaghi was to give oral evidence. At the time of service he did not indicate to the officer serving the subpoena that he (Albaghi) would be unable to attend Court on that day or that he had made arrangements to travel to Iraq shortly before the hearing date and would be absent in Iraq during the hearing. Nor did Albaghi do so subsequently.

81 At 9.30am on the second day of the trial (Wednesday, 16 November) the Crown informed counsel for BJ that a witness (Albaghi) had left the country on Sunday 13 November 2005. The Crown did not know of this previously. Apparently, it tried to contact him on 15 November to arrange a time when his evidence could be taken. The judge was told about this matter on the Court hearing resuming on 16 November. The Crown wanted to proceed indicating that an application would be made, the witness having been cross-examined at committal. Thus counsel for BJ thought that the Crown might make an application under s 65 of the Evidence Act to adduce in the trial the evidence of the witness at the committal proceedings. Counsel for BJ reserved her position. The judge felt that she could not make any rulings in the absence of evidence and knowing anything about the case. The trial proceeded with opening speeches by the Crown prosecutor and counsel for BJ. In opening the Crown did not refer to Albaghi and what he might say.

82 The Crown subsequently notified counsel for the accused and the Court that an application would be made under s 65 of the Evidence Act to read the evidence given by Albaghi at the committal proceedings. On 17 November 2005 there was further discussion of the application and it was finally heard on 18 November 2005.

83 When Det Flanagan made enquiries of the Department of Immigration and the airline about when Albaghi was due back, they were unable to assist. At the date of his departure for Iraq on 13 November 2005 Albaghi was employed by Mr Bazzi or his company. Mr Bazzi informed the Detective that he (Mr Bazzi) understood that Albaghi was intending to visit his family for 5-6 weeks.

84 Basem Albaghi had given evidence at the committal proceedings on 7 April 2005 through an interpreter. At that stage he still worked at Afco (or Avco) Metals. Mr Albaghi gave evidence to this effect in chief: He started work at Afco Metals about May/June 2003. He continued to work there in January and February 2004. Fellow employees included Mr Adel Messih and a man called Iffan. BJ was a friend of his boss, Zach Bazzi.

At the end of January 2004 Zach Bazzi went overseas. He, Mr Messih and Iffan remained working at the factory. He was still there when Mr Messih left. He estimated that Mr Messih worked for about 2 weeks after Bazzi left. He (Albaghi) stayed at the factory about 2 or 3 weeks after Messih left. (Mr Albaghi could not recall the exact date on which he left the factory)

After Zach Bazzi left BJ came to the factory some mornings. BJ had long hair, was a muscular man of medium height and aged 20, 21, 22 years. He had thick brown hair and a big amount; he tied his hair behind. Zach Bazzi had a silver ute that belonged to the work (factory) and a gold-coloured Toyota four wheel drive that belonged to him. When Bazzi went overseas the RAV 4 was with BJ, that is, he alone drove the RAV 4, only BJ had the keys to it. The last time he saw BJ with the RAV 4 was about one week prior to his (Albaghi) leaving the factory. He did not see anyone other than BJ drive the RAV 4 while Bazzi was away. Excepting BJ and Bazzi nobody drove the RAV 4. When Bazzi returned he, Albaghi, returned to work at Afco, Messih also returned and left about one month ago. (that is, about early March 2005) 85 In cross-examination Mr Albaghi gave this additional evidence: He was being paid his wages through Bazzi's brother, Manir (Australianised as Morris), BJ was a friend of Bazzi. When he left he handed the keys to Manir. Only the key to the silver utility was on the board in the Afco office. The white utility was owned by a contractor called Fadhi who held the keys to that vehicle.

When Bazzi went away the only person he saw drive the RAV 4 was BJ. He, Albaghi, made a statement to the police on 10 August 2004 and told the police that BJ used to drive the RAV 4 on the majority of occasions.

BJ had one set of keys to the RAV 4. He did not know how many sets of keys were in existence. While BJ, when Mr Bazzi was away, used to drive the RAV 4 on the majority of occasions he, Albaghi, did not know about any other person who drove that vehicle and only saw BJ driving it.

Albaghi gave no evidence as to what he saw, if anything, on the Saturday morning when the incident took place. There appears to be no evidence that he was present at the factory that morning or even the day before. 86 The cross-examiner's attack was not directed directly to Albaghi's statement that when Bazzi left only BJ had the keys, but that Albaghi did not know how many sets of keys were in existence. It seemed to be accepted by inference that while Bazzi was away BJ had a set of keys. The cross-examiner tested Albaghi's evidence, eliciting from him that he told the police that BJ used to drive the RAV 4 on the majority of occasions. The cross-examiner also referred to Albaghi's statement to the police on 10 August that most of the time he saw BJ driving the RAV 4. Albaghi said he could not read English. His police statement was made via an interpreter who spoke Arabic. The statement was written out for Albaghi and then read to him and he signed it.

87 Albaghi's evidence in cross-examination, including that relating to his statement, has to be read along with his evidence in chief that he never saw anybody except BJ and Bazzi drive the RAV 4. One further fact needs to be noted, namely that Bazzi left the RAV 4 under BJ's control and not with his wife.

88 The most damaging aspects of Albaghi's evidence were that the RAV 4 was under BJ's control, he had the known set of keys and he was the only person seen by Albaghi to drive the RAV 4 while Bazzi was overseas. There was other evidence that the RAV 4 was under BJ's control. It was not in dispute that an incident occurred on the morning of Saturday, 21 February 2004 and that BJ lived in the residential unit at the factory where the RAV 4 was kept when not in use.

89 Section 65(1) and (3) of the Evidence Act provide: "(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact."

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it." 90 Clause 4 of Pt 2 of the Dictionary relevantly provides: (1) For the purposes of this Act a person is taken not to be available to give evidence about a fact if:

… (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give evidence, but without success."

91 The judge held that the trial of BJ fell within the definition of criminal proceedings and that the witness was not available as defined by cl 4(1)(e) of Pt 2 of the Dictionary to the Act and that s 65(3) of the Act was invoked. The judge continued: "The witness was cross-examined at committal by the solicitor whose firm presently instructs … counsel for the accused. Therefore the evidence falls within the terms of s 65(3). No notice was given until 17 November 2005 for the reasons already outlined. I direct that is sufficient notice in the circumstances and in giving that direction I have taken into account the matters in s 192(2)."

92 The judge next considered s 137 of the Act, holding that the evidence was relevant to a fact in issue, in particular, who was the driver of the RAV 4 when its registered owner was overseas. She further held that there was no danger of unfair prejudice to BJ. She did not think that there was a real risk of the jury misusing the evidence and proposed to instruct the jury how to approach the evidence which she admitted. She did instruct the jury appropriately, pointing out that they had not had the advantage of seeing Albaghi give evidence, that he had not been cross-examined by BJ's counsel. The jury were instructed to approach Albaghi's evidence cautiously and that it may be unreliable.

93 The judge also rejected BJ's application for the adjournment of the trial which would require discharge of the jury. That application was foreshadowed on Wednesday, 16 November 2005 when the defence became aware that Albaghi was not available to be called in the trial. The basis of the application was that the absence of Albaghi caused such prejudice to BJ that the only remedy was to discharge the jury and adjourn the trial to await Albaghi's return.

94 The judge noted that there was no confirmed precise return date for Albaghi and held that he "has deliberately absented himself and there is no guarantee that he will be available at any subsequent trial." The judge remarked that no such application would have been made if the Crown had not been successful in its application under s 65 of the Evidence Act and that the basis of the application "is thus that the operation of the law, in particular the provision of s 65 is prejudicial to [BJ]."

95 BJ's written submissions to this Court repeated many of the submissions made at the trial. In combination the submissions made on behalf of BJ included: (a) Whether a witness was relevantly unavailable had to be understood in relation to the definition of criminal proceedings, that is whether the witness was unavailable for the prosecution of an offence and this inquiry was not limited to whether the Crown had taken all reasonable steps to secure the witness' attendance for the criminal trial. Comment: The trial before Judge and jury of an alleged offender on an indictment containing one or more counts falls within the definition of criminal proceeding in Part 1 of the Dictionary of the Evidence Act , namely, a prosecution for an offence. Section 65(1) of the Act is case specific, that is, it is intended to apply in a criminal proceeding if a person who made a previous representation is not available to give evidence about a specific fact. Set out earlier is the relevant dictionary meaning of "not to be available to give evidence". This submission is not accepted. (b) Issuing and serving a subpoena was not taking all reasonable steps to secure the witness' attendance in the prosecution of an offence. Comment: The subpoena was served well in advance. It cannot be countenanced that the Court's command to attend at the Court will be disobeyed. This submission cannot be accepted when the witness has gone overseas and done so the day before the trial is appointed to commence without notification. There was no point in seeking a bench warrant or a warrant issued at the direction of the trial judge when the witness was overseas with no known precise return date. (c) The Crown should have sought an adjournment of the trial to secure the attendance of Albaghi. He was expected by his employer to be visiting his family in Iraq for 5-6 weeks.

Comment: A witness served with a subpoena well in advance of the hearing date and who leaves for overseas on the day prior to the hearing without contacting the issuing party (or, in this case, the police) is avoiding giving evidence and there is little likelihood of that witness ever giving evidence. There was no precise evidence of him returning and no sufficient reason for the Crown to seek an adjournment. (d) Pursuant to the definition of "not available to give evidence" the judge was required to assess whether the prosecution had taken all reasonable steps to secure the witness' attendance. The judge made no such finding but rather stated that because the trial was a criminal proceeding, thereby s 65(3) was invoked. This was an error. Comment: During argument on 18 November 2005 (T7 of that date) the Crown confirmed that it relied on cl 4(1)(e) of Part 2 of the Dictionary that all reasonable steps have been taken. Counsel for BJ understood that this was one of the issues and stressed the word "all" in the phrase "all reasonable steps". At the end of the argument of counsel for BJ the judge expressed the view that all reasonable steps were taken. Counsel for BJ responded that all reasonable steps might have been taken to secure Albaghi's attendance on 14 November 2005 but not all reasonable steps had been taken to secure his attendance for the prosecution of the criminal charges because it was an eminently reasonable step to seek an adjournment. The judge ruled that the Crown's application fell within s 65 of the Act.

In her formal judgment the judge found that the witness was not available as defined by cl 4(1)(e). That finding necessarily involves the judge being satisfied that the Crown had taken all reasonable steps to secure Albaghi's attendance but without success. I would reject this submission. (e) The probative value of the evidence was outweighed by the danger of unfair prejudice to BJ. (s 137 of the Act). BJ submitted that the nature of cross-examination at a committal hearing was very different from that at trial. In this case it was not put to Albaghi (at committal) that he was lying or mistaken as to the principal pieces of his evidence upon which the Crown relied. Comment: I have already indicated the thrust of the cross-examination before the Magistrate. Section 65(3) is not based upon the nature and extent of the cross-examination. It applies if BJ cross-examined Albaghi or had reasonable opportunity to cross-examine Albaghi. It would be an odd result to refuse to admit evidence adduced by the prosecutor under s 137, when that evidence was rendered admissible by s 65(3). The requisite directions would have to be and were given to the jury. There was no danger of the jury misusing Mr Albaghi's evidence at the committal proceedings and no danger of unfair prejudice to BJ. This is not a case where the probative value of that evidence was outweighed by the danger of unfair prejudice to BJ.

96 The oral submissions advanced on behalf of BJ tended to concentrate on: (a) the statement of Mr Waterman that BJ was not the shooter and the asserted difference in skin colour and appearance between the shooter and BJ; and

(b) the circumstantial evidence not establishing beyond reasonable doubt that BJ was the shooter; and

(c) the evidence not establishing beyond reasonable doubt that BJ had exclusive use of the RAV 4 ;

(d) the evidence not excluding any other person as the driver of the RAV 4 ;

(e) the incorrect admission of the evidence of Albaghi at the committal in that the Crown had not taken all reasonable steps to secure Albaghi's attendance. It was contended that the Crown should have sought an adjournment and awaited the return of Albaghi to Australia from Iraq or investigated whether he was going to return or caused a warrant to issue for his arrest. Another alternative was the investigation of the possibility of taking his evidence in Iraq by video link or otherwise;

(f) The limited cross-examination at committal proceedings when compared with a trial should have led to the trial Court refusing to admit the evidence of Albaghi. Was the probative value of the evidence of Albaghi outweighed by the danger of unfair prejudice?

(g) BJ's application for an adjournment of the trial with the consequent discharge of the jury should have been granted. 97 I have earlier dealt with these matters, but I make these additional comments.

98 The approach of BJ to s 65 of the Evidence Act and cl 4(1)(e) of the Dictionary was incorrect and a little unreal. A timely subpoena had been served on Albaghi yet he flew out of Australia on the day prior to the trial starting and so far as was known, was going to Iraq. The police learned of this when they went to make arrangements on about 15 November 2005 for him to attend at Court to give evidence. Mr Albaghi's departure strongly suggests that he did not want to give evidence. An adjournment was very unlikely to result in his attendance at Court to give evidence. It was very improbable that his evidence could be taken either by video link or on commission, if he could be found in Iraq, having regard to the unsettled conditions in that country. In the circumstances of the present case the Crown did take all reasonable steps to secure Albaghi's attendance.

99 I have earlier indicated the approach taken to the cross-examination of Albaghi at the committal proceedings. BJ pointed to the evidence of Bazzi suggesting that Albaghi may have driven the RAV 4 on occasions prior to Bazzi's departure overseas. It does not and cannot deal with what happened with the RAV 4 while he (Bazzi) was overseas. Cross-examination of Albaghi that he drove the RAV 4 prior to Bazzi's departure may go to Albaghi's credit but the point raised would have little to no impact. I can imagine cross-examination being directed to establish that there were occasions when Albaghi was not present at the factory and that he was unaware whether the RAV 4 was driven on those occasions and who drove it. In view of the contents of Albaghi's evidence at the committal hearing any cross-examination by BJ of Albaghi would have to be careful so as not to give rise to a successful application by the Crown to cross-examine Albaghi pursuant to s 38 of the Evidence Act .

100 There was evidence before the jury from Det Flanagan that in mid-October 2005 Albaghi had been served with a subpoena to attend these proceedings commencing on Monday, 14 November 2005 and that he subsequently did not come and had left Australia prior to the trial.

101 A jury could have rationally regarded the evidence of Albaghi as being of value in that it established that BJ had the control and possession of the RAV 4 and supported other evidence on this point. Albaghi's evidence also established that it was BJ alone who drove the RAV 4 while Bazzi was overseas. It was for the jury to consider and evaluate that they had not seen Albaghi give evidence and that he had not been cross-examined at the trial. The cross-examination of Albaghi at the committal proceedings did not seem to make a significant impact upon the important aspects of Albaghi's evidence.

102 BJ submitted that, by virtue of s 67(1), s 65(3) could not be invoked unless the Crown has given reasonable notice in writing to him of its intention to adduce in evidence that given by Albaghi in committal proceedings. His counsel pointed out that the application and the evidence desired to be admitted pursuant to s 65 had to be communicated to BJ in writing. That occurred after the close of business on the preceding day (17 November). By s 67(4), despite s 67(1) the Court may direct s 65(3) is to apply despite the Crown's failure to give notice.

103 In my opinion, because of the express interconnection of s 67(1) and 67(4), the latter provision is directed to reasonable notice not having been given and it being just to dispense with such notice in the circumstances. Notice given five minutes before the hearing of the application under s 65 would not normally be reasonable. What is reasonable will depend on the circumstances. In the present case as the Crown did not become aware until 15/16 November 2005 of Albaghi going overseas on 13 November 2005 and had no prior notice of his intention to do so and the Crown had to make enquiries about his return, the statutory notice could not reasonably have been given prior to 17 November 2005. Reasonable notice enables the opposing party to reconsider how it is going to conduct its case and whether it needs to call another witness to prove what it reasonably hoped to elicit from the unavailable witness. Some of the evidence of the further witness may be adverse to the case of the accused and regarded by the accused as incorrect.

104 In determining whether reasonable notice has been given regard must be had to the date when, and circumstances in which, the Crown became aware that a witness was not likely to be available or was not to be available and the interests of the accused. These matters would also have to be considered if the exercise of the power under s 67(4) was being contemplated.

105 In the present circumstances the notice given was reasonable. BJ was alerted to Albaghi not being available on 16 November 2005. This was confirmed on 17 November 2005 and notice was given.

106 No evidence was adduced on behalf of BJ of any other witness whom BJ might wish to call. Nor did he point to any changes in the conduct of his case that he could not accommodate other than that he would not have the opportunity to cross-examine Albaghi and hopefully obtain evidence from him that would assist his (BJ's) defence.

107 BJ complained that while the judge, in directing that the notice given was sufficient in the circumstances, said that she had taken into account the matters in s 192(2) of the Act there was no detailed consideration of the various matters referred to in s 192(2)(a)-(e) and the extent to which they impacted upon her decision. The reading of Albaghi's evidence at the trial would have taken less than an hour. This and the associated directions would not have unduly added to the length of the hearing. While the absence of the opportunity of BJ to cross-examine Albaghi at the trial and hopefully obtain evidence that would assist his case or cause the jury to doubt his credibility is an important consideration, there was the evidence of Mr Messih as to BJ taking control and possession of the RAV 4 and the undisputed evidence that BJ lived in the residential unit at the factory. Albaghi had been cross-examined at the committal proceedings. It was open to BJ to give evidence as to the extent he and others drove the RAV 4 and he had it under his control. He could also call other persons who had driven the RAV 4 or who were aware of it being driven by others. Any unfairness to BJ in Albaghi's evidence being read was minor. The jury could have regarded Albaghi's evidence as important. This depends upon the extent to which the jury accepted the other evidence adduced by the Crown. The proceedings involved serious criminal offences which carried heavy penalties. While the Court had power to adjourn the hearing this was not a real option as it could be safely inferred that Albaghi did not want to give evidence. The judge rightly took into account the directions which she could give to the jury, for example, that Albaghi had not been cross-examined before them. After considering all the various matters mentioned in 192(2) (a)-(e) this would not have led the judge to do other than allow the evidence given by Albaghi at the committal proceedings to be read at BJ's trial subject to the directions which the judge gave.

108 Both in the oral and supplementary written submissions of BJ strong complaint was made of the judge's decision and her reasons not to grant his adjournment application with the consequent discharge of the jury.

109 It was pointed out that on 16 November 2005 prior to the judge's opening remarks, the problem of Albaghi's non-attendance was raised and counsel for BJ stated that Albaghi was probably the most important witness in the trial from his perspective. After some assertions and counter assertions by counsel the judge remarked that she could not deal with the matter at that stage as she did not know what the case was all about and what the Crown case was. Questions of a possible application under s 65 of the Evidence Act and an adjournment had been mentioned. The judge said: "… if … this trial aborts after two days because Albaghi is crucial to [the defence] so be it but I'll entertain the application then."

and "I can't make these rulings in the absence of evidence and knowing anything about the case."

110 BJ also pointed out that when the Crown sought to tender the evidence under s 65 the trial judge included in the reasons for refusing the application by BJ for an adjournment that: "This application is made almost at the conclusion of the Crown case, as the prosecution evidence is expected to finish within half a day."

111 BJ submitted there was inconsistency in the judge's approach and that such inconsistency was unreasonable and plainly unjust: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505. The application for adjournment was made immediately upon the Crown successfully seeking to tender Albaghi's evidence at committal under s 65. BJ submitted that there was no occasion to make the adjournment application earlier and that such an application had been foreshadowed. BJ submitted that in the circumstances the taking of the timing of the adjournment application into account was "to allow extraneous or irrelevant matters to guide or affect [the decision maker]: House v The King ." A consideration of this attack involves some repetition of the facts.

112 When the problem of Albaghi's non-attendance was raised counsel for BJ said that she had no instructions and a number of possible courses of action were raised. The Crown prosecutor foreshadowed an application being made which counsel for BJ assumed would possibly be one under s 65. Counsel for BJ said that if the Crown intended to make an application she would need to consider whether she had an application.

113 It is apparent from the exchanges that the Crown was engaged in elucidating the facts relating to Albaghi's non-attendance and possible return. Both the judge and counsel for BJ stated that they did not know what the Crown proposed to do. The jury had been empanelled the previous day and was waiting and the judge did not wish to delay the jury. The judge thought it best to proceed with the hearing pending the Crown supplying information. Counsel for BJ said that there may be an application for an adjournment from BJ as the conduct of his trial had been based on Albaghi being available.

114 The matter was next raised with the judge immediately before the luncheon adjournment on Thursday, 17 November 2995 when the Crown prosecutor stated that the only other issue to be determined was whether she would succeed in an application to have the missing witness' evidence read. She indicated that the police were continuing their enquiries. The judge pointed out that no material had, at that stage, been given to counsel for BJ. At the close of proceedings on 17 November 2005 the Crown prosecutor told the judge that the statement setting out the circumstances and the background had been served but not Albaghi's statement and the committal evidence (duly edited). The judge stood the matter down to noon on Friday, 18 November 2005. On that day the Crown proceeded with its application to read the committal evidence of Albaghi. That application was opposed by counsel for BJ. She said that BJ's evidence was significant for the defence, that BJ was seeking an adjournment and that BJ had caused Albaghi to be served with a subpoena. No evidence of service of that subpoena had been adduced. Counsel for BJ said that they were seeking an adjournment to have Albaghi attend at Court. Counsel also submitted that s 65 could not be invoked as the proper remedy was for the Crown to seek an adjournment.

115 In her reasons for judgment the judge recounted that the application for an adjournment was foreshadowed on Wednesday 16 November 2005 when the defence became aware that Albaghi was not able to be called in the trial and that at that stage it was not clear what course the Crown was going to pursue as his absence from the jurisdiction was not known until the previous day.

116 The judge held that in determining the adjournment application it was necessary to consider the interests of justice which included the accused's interests and those of the community. She held that Albaghi had absented himself and there was no guarantee that he would be available at any subsequent trial. The trial was being held almost 21 months after the offences were allegedly committed. He had been in custody since his arrest in April 2004.

117 None of the foregoing matters were the subject of objection. However, the next passage was the subject of criticism by BJ: "This application is made almost at the conclusion of the Crown case, as the prosecution was expected to finish within half a day. As Ms Frances frankly concedes, no such application would be made if the Crown had not been successful in its application under s 65 of the Evidence Act to have this witness' evidence read."

118 It is true that the application for the adjournment was made almost at the conclusion of the Crown case. BJ cannot be criticised for that. The judge wished not to delay the jury and not to make rulings until the Crown had decided upon the course it wished to take. BJ wanted to know where he stood. Was the evidence of Albaghi at the committal proceedings going to be admitted against him? In view of the Crown not serving its notice until 17 November 2005 and the judge at an early stage not wanting to make a ruling until the Crown made its application and she knew more about the case and heard some evidence, it was not unreasonable for BJ to delay making his adjournment application until after the judge indicated that she was going to admit in the trial Albaghi's evidence at the committal proceedings.

119 In the circumstances of the present case it was erroneous to rely on the stage at which the adjournment application was made as one reason to refuse the adjournment. However, it was correctly refused on the basis that Albaghi had deliberately absented himself to avoid giving evidence and that it was unlikely that he would ever attend to give evidence or, at the very least, it was doubtful if he would do so. The Court was looking at the prospect of an adjournment for an indefinite period. There was prejudice to the community's interests. These included that the witnesses called by the Crown were entitled to expect finality. Memories were likely to fade and further community resources expended if a further delay occurred. A serious crime had been committed and it was desirable that there be prompt resolution of the issue whether BJ was guilty or not guilty. The adjournment application was based on the hope that if Albaghi attended an adjourned hearing and gave evidence, evidence assisting BJ's case would be obtained in cross-examination. That was rather tenuous.

120 The judge was correct in refusing the adjournment but not for all the reasons which she gave.

122 At the hearing of the appeal the Crown submitted that irrespective of s 65 of the Evidence Act , Albaghi's evidence was admissible under s 285 of the Criminal Procedure Act 1986 . That basis of admissibility was not advanced before the trial judge or considered by her. It is not necessary to deal with the point as Albaghi's evidence at the committal proceedings was correctly admitted by the trial judge pursuant to s 65(3) of the Evidence Act .

123 The appeal against convictions should be dismissed.

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