R v Abbouchi; R v Allouche [2008] VSCA 171

Court of Appeal (Vic)|2008-09-11|Before: VINCENT, NEAVE and WEINBERG JJA

Criminal law - Conviction - Intentionally causing serious injury - Recklessly causing serious injury - Common assault - Affray - Crown case against each applicant formulated on basis that each was principal acting in concert with others - Trial judge charged jury with respect to acting in concert and aiding and abetting - New basis for conviction introduced where aiding and abetting not addressed by prosecution or defence - Unfairness - Potential miscarriage of justice - Identification evidence - Failure to direct jury in accordance with Domican v R [1992] HCA 13; (1992) 173 CLR 555 - Potential risk that weaknesses in prosecution case overlooked or not fully appreciated by jury - Aggregate of errors - Application granted - Re-trials ordered.

1 Ahmed Allouche and Khaled Abbouchi were jointly presented, before the County Court at Melbourne, on two counts of intentionally causing serious injury (counts 1 and 3), two counts of recklessly causing serious injury (counts 2 and 4), one count of common assault (count 5)[1] and one count of affray (count 6).

2 On 4 December 2007, the jury returned verdicts of guilty on counts 1, 5, 6 and an alternative to count 3 (intentionally causing injury).

3 After hearing a plea in mitigation of penalty, the sentencing judge, on 12 December 2007, imposed on each the following terms of imprisonment:

His Honour ordered that six months of the sentence imposed on the alternative to count 3, one month of that imposed on count 5 and two months of that imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 1. This created, in each case, a total effective sentence of two years and nine months' imprisonment in respect of which a non-parole period of 20 months was fixed.

4 They now seek leave to appeal against their convictions,[2] relying upon identically expressed grounds set out in their Statements of Grounds.

The learned judge erred in his directions on identification evidence; and in particular he erred:

(a) in failing adequately or at all to isolate and identify for the benefit of the jury the matters of significance which may reasonably be regarded as undermining the reliability of the identification evidence ...; and

(b) in failing adequately to summarize defence counsel's submission in general and in particular his submissions as to the weaknesses in the identification evidence ... .

The learned judge erred in failing to direct on the implications for counts 1 and 2 if the jury could not exclude the possibility that the applicant was neither the perpetrator of nor complicit in the initial blow that broke Daniel Gallo's jaw but was either a perpetrator of or complicit in the assault that followed thereafter ... .
The learned judge erred in failing to leave as alternatives to counts 1 and 2 the offences of intentionally causing injury and recklessly causing injury respectively ... on the basis that:

(a) the applicant was neither the perpetrator of nor complicit in the initial blow that broke Daniel Gallo's jaw such that he was not responsible for an offence involving serious injury, but was either a perpetrator of or complicit in the assault that followed thereafter such that he may have been responsible for an offence involving injury only ...; or

(b) even if the applicant was the perpetrator of or complicit in actions which resulted in serious injury to Daniel Gallo, he lacked the requisite mens rea for inculpation in an offence involving an assault of some kind but possessed the mens rea for inculpation in an offence involving injury only.

The learned judge erred in directing that the prosecution did not have to prove beyond reasonable doubt that "a particular identified individual was responsible for a particular assault on one of the alleged victims" or that "either of the two accused was a perpetrator of an assault on any of the alleged victims" ... when that was contrary to the way in which the prosecution had presented its case, at least on counts 1 and 2 ... .
The learned judge erred in introducing the concept of aiding and abetting as a ("more relevant") basis for liability when the prosecution had only ever relied on concert as the head of complicity ... .
The learned judge erred in his directions on aiding and abetting; and in particular he erred in failing to direct that, for liability as an aider and abettor, the applicant must be shown to have been present intentionally assisting or encouraging the alleged principal knowing that the principal was committing the actus reus of the crime in question whilst possessed of the requisite mens rea for that crime ... .
The learned judge erred in his directions on intoxication following the jury's question on that topic ...; and in particular he erred:

(a) in misdirecting the jury by directing to the effect that intoxication is only of relevance if the person is so intoxicated as to be "incapable of forming an intention";

(b) in effectively withdrawing the issue of intoxication as being relevant to the mens rea for the offences in question or involvement therein by way of complicity, despite the evidence of intoxication ... and the jury's obvious interest therein.

An aggregate of the errors or defects identified in grounds 1-7 caused the trial to miscarry.

5 In view of the assertions made in some of these grounds, it is necessary to refer to a number, but by no means all, of the relevant witnesses and parts of the evidence and to indicate the nature of the case advanced against each of the applicants.

6 On the evening of 4 January 2005, the applicants, together with an unspecified number of other young people, were present at a holiday home in Normanby Road, Sorrento, owned by the grandparents of one of the females present, Natalie Spena.

7 On the same evening, Daniel Gallo, Damien Morfea, Adam Gallo and Anne Gallo were at a separate property, located a short distance away. Natalie Spena is the cousin of Daniel, Damien and Anne Gallo. At about 11.45pm, this group of four walked to the house where Natalie was staying to visit her.

8 Damien Morfea knocked on the front door to which access had been gained by some steps leading to a landing. His knock was answered by two males. One of them asked the visitors who they were. They responded that they were Natalie's cousins and had come to see her. One of the males aggressively remarked that he would 'kick their fucking heads in if they were lying.' It appears from the evidence that there had been some problem in the house and that trouble was anticipated. The visitors were, of course, totally unaware of this. The door was shut and then opened again.

9 Suddenly, one of an undetermined number of males inside the house, rushed out and without warning or explanation, punched Daniel Gallo hard to the jaw. The Crown contended that this assailant was the applicant Allouche. Other males then came out to the landing on which the visitors were standing and attacked them. Daniel, who had been knocked to the ground, held his head in his hands and his knees up to protect himself as he was set upon by more than one of this group. He felt about four or five punches as he was on his back being punched in the head and kicked in the body.

10 One of the males punched Damien Gallo on the nose and pulled his jacket over his head. He was then punched about 10 to 15 times and kneed in the face. Again, more than one person participated in this assault.

11 Adam was punched once on the cheek and once on the ear.

12 Daniel sustained a fracture of the mandible which necessitated the insertion of a metal plate. He also suffered bruising to the top of his skull and light bruising to the area around his ribs.

13 Damien sustained a small laceration to the nose, swelling to the jaw, left ear and right side of his head, and swelling and bruising to one eye.

14 Adam suffered a bruise on the cheek and a cut on the ear.

15 At the trial, there was no dispute that the incident had occurred and that the victims were attacked and injured in the general circumstances described by them. The central issue of fact before the jury in the case of each applicant was whether the Crown had identified him as a participant in it.

16 The case for the prosecution was that it was Allouche and Abbouchi who came to the door and that both were principals and instigators of what then transpired.

17 When opening the Crown case, the prosecutor asserted -

The Crown says in each particular case that Mr Ahmed Allouche and Mr Khaled Abbouchi were acting in concert. That is, they had agreed that they would do these unlawful acts, and whether it was Mr Abbouchi who punched a particular person and caused that injury, it doesn't matter. We say they were in it together, so we talk about acting in concert and that's why they are charged together.

The group stood at the door while Damien Morphea knocked. The accused Mr Allouche answered the door and the accused Mr Abbouchi stood behind him. Mr Allouche asked them who they were and they replied they were Spanner's cousins and they had come to visit her. According to those on the balcony the accused Allouche then stepped back into the house and made a comment about his intention to harm the group if they were lying, before suddenly bursting out of the door and attacking Daniel Gallo punching him to the jaw and face. Shortly after Mr Abbouchi came out of the house and confronted Daniel Gallo putting his face 4 to 5 inches in front of Mr Gallo. Mr Abbouchi and another unidentified male began to then further assault Daniel Gallo. Daniel Gallo was knocked to the ground and punched and kicked a number of times to the head and body and those particulars make up Count 1, of causing serious injury intentionally to Daniel Gallo. Alternatively, recklessly causing serious injury. At approximately the same time Damien Morphea was punched to the nose by another of the males. Morphea's shirt was pulled over his head and he was kneed and punched 10 to 15 times to the face. Count 3 is - Count 4 is causing serious injury intentionally or recklessly. They are the particulars of that, those offences.

Adam Gallo was struck with a closed fist by one of the males to the left cheek and the left ear and that's Count 5, that's the assault count, there is no injury associated with that. All of the assaults occurred on the balcony of the premises, and there are photographs there, in front of the victims and those of Spanner's friends who had remained at the house and that's the affray.

This position was maintained throughout the trial as his closing address makes clear -

The first count is that Mr Ahmed Allouche and Khaled Abbouchi, without lawful excuse, intentionally caused serious injury to Daniel Luigi Gallo. They're both referred to in count 1, and at the outset I said the Crown said they acted in concert. Whatever one does, the other's nodding his head to (sic). All right, so it doesn't really matter from the Crown point of view if you accept that Mr Abbouchi punched Daniel Gallo that the blow wasn't inflicted by Mr Allouche, we say they're acting as a tag team, if you like, or vice versa.

He then dealt with the remaining counts and stated -

They are the charges, we say the Crown says the accused are acting in concert in relation to each of them.

18 Counsel for Allouche, in his response to the Crown opening, submitted that when the jury had heard all of the evidence they would appreciate that they could not be satisfied beyond reasonable doubt that his client was even present at the relevant time. He submitted in his final address -

...It is not suggested that Mr Allouche wasn't at the house that night. Mr Allouche has in fact made an admission that probably confirms for you that he was there that night because he admits that his fingerprint was on a Johnny Walker box. Never contending that he's not there that night, but that he's not involved in this particular incident. And that the prosecution whose obligation it is to prove to your satisfaction beyond reasonable doubt, cannot satisfy you beyond reasonable doubt that he had been properly identified as having been involved.

19 Counsel for Abbouchi told the jury at the beginning of the trial that -

What he does dispute is that he unlawfully assaulted any person or that he fought anyone. That quite simply is what is in dispute by Mr Abbouchi; the allegation that he was one of the people who committed any assault of any kind. That's the issue for you to decide, and you could not be satisfied, I will suggest, that Mr Abbouchi was one of those who caused the injuries.

... What I will ultimately suggest is that what simply has not been proven at all by the prosecution is that any person who fought or caused any injuries at that place on that day was Mr Abbouchi, either directly or by acting in concert somehow with anybody else.

21 The evidence indicated that there were a number of males present in the house at the time and how many of them were involved in the attacks never clearly emerged. Obviously, the identification of the applicants as implicated in them was crucial to the Crown case and became the main focus of attention in the course of the proceeding. It is also apparent that, from the outset, the Crown sought to attribute responsibility to each of the applicants as an actual perpetrator acting in concert with others and not at any stage as an aider and abettor of some other principal or principals. Indeed, there is nothing in the transcript that suggests that any attention whatever was given to this latter possibility until it was raised by the judge in his charge to the jury.

22 Daniel Gallo stated that, on 4 January 2005, he was staying at a family holiday home in Sorrento. His cousin, Adam Gallo, and his wife, Anne Gallo, were next door at Adam's holiday home.

23 On that evening, Adam, Anne, Damien and he were playing pool at Adam's house. At 11.00pm, they walked to the house at which his cousin, Natalie Spena, was staying a short distance away. The lights were on inside and they went up the stairs at the front of the house to a landing outside the front door. One of them knocked on the door which was opened by a male, who asked, 'Who are you? What are you doing here?' They tried to explain that they were Natalie's cousins and had come to visit her. The light was positioned behind the male's head and Damien stated that he saw the person only in outline.

24 The flywire door was then shut, but shortly afterwards re-opened and another male, taller than the first, emerged. This person had hair and was wearing a cap and the first male was behind him. The second male asked who they were. Daniel tried to explain but, without warning, was struck to the left side of his jaw and knocked down. He was unable to recall which of the males did this. He found himself on his back on the landing being repeatedly punched to the head, receiving blows from different directions and being kicked in the side in the kidney area. He felt about four or five punches. Anne then grabbed him and they ran down the stairs and returned to his holiday home.

25 He had surgery on his jaw and a plate was inserted. He also received bruising to the top of his skull and light bruising to the area around his ribs. At the time of the trial, the plate was still in his jaw and it caused him dental trouble and affected his eating. He was absent from work for about a month and a half.

26 He stated that, on 29 April 2005, he was asked to view some photographs and was shown two photo boards. He could not recall whether he identified anyone depicted in them as being involved in the incident.

27 He stated that he was shown a second photo board but could not recall who he selected.[3] He said that, after he was shown those folders, he signed them.

28 When cross-examined by counsel for Allouche, it was put to him that, during evidence-in-chief, he stated that the first male who came to the door had a shaved head and that, at another stage, had said that the first male had short hair. The witness responded that he provided those two descriptions as he was a little unclear as to that man's appearance at that time. He said that he could not remember what the person was wearing. He agreed that, in his statement, he had said '[h]e would have been about 6' plus tall,' and that that description was significantly different from the evidence he was then giving. He also said that he was not sure what the male looked like.[4]

29 When cross-examined by counsel for Abbouchi, he said that he thought he saw the person with the shaved head in the background through the door. He had described that person previously to the police as someone who was shorter than himself (about 5' 7"). When he went to the Coburg Police Station, he pointed out a photograph on the photo board. What he saw of the person of that description was a silhouette. That was the person with the shaved head. He stated that he did not see the person who struck him. One of the males, who he recalled was involved in the incident, had hair and a cap on his head.

30 Damien Morfea stated that on 4 January 2005, at about midnight, he was at Adam Gallo's house in Sorrento playing pool, with Adam and Anthony. At about 12.00am, they (Daniel, Adam, Anne and himself) decided to walk to Natalie's house.

31 All the lights inside the house were on and the group went up the stairs to the front door which was located on a landing which was in darkness. Either Daniel or he knocked on the door and a male they did not know answered it. They asked him whether Natalie was home. He described this person as being about his height, 175 - 177cm, with dark hair, a dark complexion, about 24 - 25 years of age and with an athletic build.

32 The male asked them who they were and they informed him that they were Natalie's cousins. The male said that if they were lying, he was going to 'come back and kick their fucking heads in.' The individual spoke 'right up to their' faces. It was fairly dark, but he was able to see the face of the person clearly. The conversation went for about five to ten seconds before the male went back inside and closed the flywire behind him.

33 They were intending to enter the house, but before that happened, someone came out and struck Daniel. He was not sure whether that was the person who spoke to them initially. A second person present at this stage was approximately the same height and build as the first. He had short dark hair. That male went back inside and slammed the door behind him. They were asking Daniel (who was holding his jaw) whether he was 'ok,' when he saw three or four males, inside the house, rushing past the window towards the door at which he was standing. Two were wearing baseball caps. The last of that group had a shaved head and was wearing a cream tracksuit.

34 The door opened again and three or four males came out on to the landing. One of them punched him on the nose and tried to pull his jacket over his head. He was then punched and kneed in the face.

35 The male who came out last was the one with the shaved head. That person was not present when the door was opened the first time and he was not sure whether the person who abused them initially was part of this group of three or four. He was then punched repeatedly (10 - 15 times). He said that there must have been two assailants as he received blows to both sides of his head at the same time. His jacket and shirt were pulled off over his head.

36 After making his way to the stairs and calling out to Daniel, Adam and Anne to get away, he walked down the stairs and Daniel followed him. He saw Adam and Anne talking to a male. The male with the shaved head was holding a champagne bottle and it appeared that he was going to throw it.

37 They returned to the house where they were staying and the police were contacted. He attended the Rosebud hospital and was treated for swelling in his left jaw, left ear, right side of his head, swelling and bruising on his eye, and an abrasion requiring two or three stitches. He could not breathe properly through his nose for two weeks after the assault.

38 He attended the Coburg Police Station in April 2005 where he was shown a number of photo boards. He identified photograph 3 as a person involved in this matter but was not quite sure what his role was. He said he could not say whether that was the man who assaulted him. He identified another photo board as one shown to him on 4 May 2005.

39 During cross-examination by counsel for Allouche, he stated that he could not recall which photographs he picked out when he was shown the second of the two folders on 4 May 2005. He said that he thought he remembered being asked at the committal hearing, 'when you looked at 2C you told the police the following after nominating photos one and six: "I'm not sure, these two, I can't say, they were just wearing hats"... can you elaborate on what you meant by that?' He said that he could not remember answering 'I wasn't sure by looking at the photos because at the time they were wearing hats.' He also could not remember being asked 'at the time of the offending you say they were wearing hats?' and answering 'yes.' He did not recall being asked 'what sort of hats were they wearing?' He responded that he may have answered 'sports caps.' He had some recollection of some people being there who were wearing sports caps but just what part they took in any of the events he could not say.

40 When cross-examined by Abbouchi's counsel, he agreed that he had described the first male he saw come to the door as being about 6' tall and of athletic build. The second male he saw at the door and who he saw strike Daniel, was of a similar build. The second male either had hair or was wearing a cap. It was only after he saw three or four males through the window that he saw the person with the shaved head. When the group of males came to the door, before he was struck, the male with the shaved head was standing behind them.

41 He recalled being shown that group of photographs contained in photo board 1A of Exhibit B and was 'pretty sure' that he indicated number 3 but was uncertain.

42 He accepted that he gave the following evidence at the committal hearing:

Q: And the last person that you say you saw had a shaved head?

Q: You say that one of the males has punched you on the nose, yes?

Q: That was just after seeing the guy with the shaved head come out the door; is that right?

A: The guy with the shaved head was coming from the window, you could see him coming out and the other guy was already at the door.

Q: I see. So when you were struck he wasn't actually outside of the door by that stage, you saw him through the window?

Q: But you can't say whether or not he actually stepped outside, can you?

A: Well, he was outside straight, as soon as we were trying to get down the stairs.

Q: So after the kerfuffle he was outside, you saw him outside when you were going down the stairs; is that right?

43 Adam Gallo stated that, on 4 January 2004, he was at Sorrento with his wife Anne, Damien Morfea and Daniel Gallo. At about 11.45pm, they went to visit Natalie Spena. Their knock on the front door was answered by two men who he was unable to describe. When he explained to them what they were doing there, the men appeared to be startled, confused and aggressive. He asked them to call Natalie and the men went inside. However, they returned and made some threatening remarks. One then walked out and punched Daniel Gallo who fell to the ground. They then grabbed Daniel and threw him to the centre of the landing where he lay on the ground curled into a ball as both of the men commenced to kick his body. He (Adam) was hit once in the cheek and once in the ear with a closed fist. Anne went inside and came out with Natalie.

44 He went down the stairs with Anne and they returned to his holiday house. He sustained a bruise on the cheek, a cut on the ear and suffered some pain overnight.

45 In cross-examination by Allouche's counsel, he said that he did not see who hit him and would never be able to recognise that person. He told the police that he could not tell who was hitting Damien and Daniel because of the conditions on the evening. He agreed that when he was shown photo board 2B in May 2005, he said 'I can't see any familiar faces. A bit too long ago. It's not fresh in my mind.' He said that his recollection was 'even staler now.'

46 When cross-examined by Abbouchi's counsel, he said that all he could see were silhouettes and that he had no recollection of who hit anyone. He recalled seeing a person with a shaved head but that his recollection of that person was very hazy.

47 Anne Gallo gave evidence that, on 4 January, she was at Adam's parents' holiday house. At 11.50pm they went to see Natalie. She went up the stairs and Damien knocked on the fly screen door. She said that two males came to the door, opened it but did not come out. One of the males had a bald head and was stocky. The other male had hair and was 'maybe' wearing a red t-shirt.

48 Damien or Daniel explained that they were Natalie's cousins. One of the males said, 'Nat's busy.' He then closed the door and stood there holding it. One of these men opened it again and punched Daniel. She said she ran inside the house to get Natalie and located her in a bedroom. After about one or two minutes Natalie came out and they went outside.

49 She said she saw Daniel on his back on the floor of the landing to the stairs with his head in his hands and his knees curled up and three males kicking and punching him. Damien was standing with his t-shirt over his head and two males punching him. Adam was standing near the stairs. She ran to Daniel to try to get the males off him. Natalie was standing behind her. She vaguely remembered a male punching Adam and she jumped on this person's back trying to stop him.

50 She recognised one of the males and she had a conversation with him. He then escorted Adam and her down the stairs. She saw the bald male on the balcony with an empty champagne bottle, appearing ready to throw it at her and Adam.

51 She attended the Coburg police station on 4 May and she was shown two documents. The first exhibit was 1C and she remembered being shown that by a police officer. She also remembered indicating a particular person in that photo board. It was photograph number 7. The person in photograph number 7 was the bald male on the balcony. He was the one who opened the door first. She could not remember seeing that male hit anyone.

52 She was handed photo board 2D and said that she did not remember being shown that photo board although it bore her signature.

53 When cross-examined by Allouche's counsel, she stated that when she looked at the second photo board she was 'pretty sure' she looked at it closely. She could not remember making a statement about viewing the photo boards. She was handed a document signed by her. In relation to that she agreed that -

I was handed a folder and I observed photo images of a male person, I viewed each image and was unable to identify any person.

54 When cross-examined by Abbouchi's counsel she said that the male with the hair was the first to open the door and that the person with the bald head was slightly behind him. The male with the hair came through the door and did the talking. He had the discussion with Daniel and Damien about who they were. That male then shut the door and stood there being abusive. The male with the bald head was standing behind him and she did not know who threw the punch at Daniel.

[w]e have walked up the stairs on to the verandah. Damien has knocked on the front door and has then walked away a little bit. I saw two guys come out the door. He was over 170 centimetres tall. They were both Lebanese. The first one was of medium build. He had dark hair and was short. I think he was wearing either a red or white coloured T-shirt. The second guy was a little bit taller, over 175 centimetres and was of stocky build. He had a bald shiny head.'

[t]he guy with hair has asked Damien who he was. Damien has then asked him where Nat was. The guy has then said that she's in the room and that she's busy. Either Danny or Damien has then asked the guy to let Nat know that we were here. The guy with the hair has then walked in and has then walked back out and turned around and said if we weren't his cousins he was going to smash us. The guy has then walked back inside and back outside and has then punched Danny in the chin.

She said that her statement was made within hours of the incident and that it would be correct. She said she was inside for a minute and a half and then went back outside.

56 She was shown photo board 1C when she attended the police station. During cross-examination she was handed Exhibit D photo board 1C. She pointed to one of the photos and said '[a]s soon as I look at these, that one comes to my head straight away.'

57 When she ran inside, one of the males was holding the flywire door open and she ran under his arm. She saw only one punch thrown before she went in the house.

58 Rachelle Bouzeid said that, on 4 January 2005, she was staying at Natalie's house in Sorrento. In the evening she was in the kitchen. She said a man that Natalie was seeing and some of his friends arrived there in two cars at about 9.00 or 10.00pm. She did not know any of those people. The males were drinking while they were there.

59 She said that she was talking to another friend at the kitchen bench when she heard a female come in and say 'get Natalie.' She looked outside and realised there was an argument and a fight going on. She saw a few people on top of each other and a few males in front of the doorway fighting. She saw Damien, who she knew, on his back on the floor.

60 When cross-examined by Allouche's counsel, she said that the males arrived in two separate groups at separate times. At some stage she learned that the name of one man was Ahmed. She did not remember anyone leaving until after the fight happened.

61 Amanda Elizabeth Chircop stated that, on 4 January 2005, she was also at Natalie's holiday house. Natalie told her that her friend Sal was coming to the house and that he arrived with friends in cars. She remembered that there was a silver four wheel drive. The men had a substantial amount of alcohol with them. She left the house and later returned. She walked up the stairs and observed blood all over them.

62 She remembered being shown photo boards but said that she was unable to make any identification.

63 Laura Vangeli was also staying at Natalie's house in Sorrento on that night when two carloads of males arrived, including Natalie's friend Sal. She heard names mentioned, including Ahmed and Khal. She thought that a carload of the males left and that Ahmed was one of those who stayed.

64 She was sitting at the U-shaped kitchen bench and could see some males outside on the landing. She heard Damien, who she knew, say 'where is Natalie.' She went to the door and remembered seeing punches being thrown, blood and commotion. She saw Damien and another male being hit. She saw Ahmed and Khal out on the balcony.

65 During cross-examination by Allouche's counsel, she was referred to her statement in which she said that when the group of men arrived they used names for each other that were obviously not their own. Her clear recollection was that every male who was at the house was out on the balcony but, she said, there was so much activity it was difficult to say precisely what was happening.

66 Jessica Rose Vecchio was also present at the house. Natalie had spoken to her about inviting her boyfriend Sal there. She was present when the first car arrived but not when Sal arrived later.

67 At some point during the evening, when she was inside the house, she heard Damien, who she'd met before, saying 'we're Natalie's cousins, we've just come to see Natalie.'

68 She ran to the front door and saw Daniel outside. There was an argument. All of the young men who had come to the house on that night were on the landing. A male pointed out to her by Natalie as Sal's cousin punched Daniel in the face causing him to drop to the floor. The person who did this had dark hair and skin and was tall. His hair was 'sort of curly.'

69 She was shown two photo boards by police. She was handed photo board 1A during her examination-in-chief but was not able to identify any person in that photo board. She was handed photo board 2B from which she selected number 7. She said that that male hit Daniel.

70 In cross-examination by Allouche's counsel, it was put to her that she said at that time that she selected photograph 7 and said 'I seen him that night at the house' and that she did not say that that person hit Daniel. She agreed that at the committal hearing she was asked 'so you don't know who that person is or what he did that night?' and that she answered 'no.' She said that that answer was true.

71 Bianca Mallia stated that in January 2005 she went to Natalie's holiday house in Sorrento and remembered Natalie's friends arriving in what she thought was a black four wheel drive.

72 She said that she left and that when she returned she saw people everywhere and blood on the stairs.

73 She said she was shown some photographs by Detective Sergeant Dalzotto on 3 February 2005. She was shown a photo board with her signature on that document. She indicated number 7 in photo board 1C. She said that he was one of people she saw at Natalie's on the night.

74 Geoffrey Joseph Gauci, a Sergeant of police at Epping Police Station, stated that, on 27 February 2006, he showed Jessica Vecchio two photo boards and recorded her responses. In response to photo board 1A she said 'I really do not know any of these faces.' In response to photo board 2B she pointed at number 7 and said, 'I seen him that night at the address.'

75 Paul Constantino Rizio stated that in January 2005 he was staying at a family holiday home in Sorrento. He stated that soon after Daniel and Damien were taken to the hospital, Joe Morfea and he drove to Natalie's house and parked in a position where they could see the landing. He wrote the registration number of a car that he observed leaving the property (TDN-251).

76 Mark Andrew Goldspink is a Sergeant of police based at Greensborough Police Station. He was handed Exhibit F. The number on that photo board is 1C. He said that he showed Ms Mallia that photo board and she indicated photograph number 7. He showed her photo board 2A. She indicated photograph number 8. She said, 'I don't think I recognise anyone. No. 8 looks familiar.'

77 Adrian Dalzotto, a Detective Sergeant of police at the Victoria Police Academy, had carriage of the investigation. He arranged for a number of photo boards to be prepared.

78 In relation to photo board 1A, Damien Morfea, photograph number 3 was of Abbouchi. In relation to folder 1C, Bianca Mallia, photograph number 7 was of Abbouchi. In relation to folder 1C, Anne Gallo, photograph number 7 was of Abbouchi. In relation to folder 2B, Jessica Vecchio, photograph number 7 was of Allouche.

79 A Roads Corporation search revealed that the motor vehicle number TDN-251 was registered in the name of Hanna Abbouchi, Abbouchi's mother.

80 A number of items of rubbish were taken from the scene by police on the night of the incident which were later examined by forensic experts. A fingerprint, found on a Johnnie Walker box, was identified as belonging to Allouche.

81 As we indicated earlier, the prosecutor opened his case to the jury on all counts on the basis that the Crown sought to attribute responsibility to each of the applicants as a principal acting in concert with others, at no point raising the possibility that either might be seen to be an aider and abettor of some other offender. It is evident that the trial was conducted throughout by all involved on that basis. However in his charge the trial judge introduced the possibility that either or both of the applicants might be found guilty of one or some of the offences under consideration on the quite separate basis of aiding and abetting.

82 There is no need to set out the distinctions that the law has made between the circumstances in which liability will attach to an individual as an actor in concert and those in which it will arise as an aider and abettor. It is sufficient to state that the culpability arises on the former basis by reason and in consequence of an agreement to participate as a principal in the commission of the offence whilst the latter arises from the presence and contribution made by a person designated as an aider and abettor to its commission in the absence of any such agreement. They represent quite different foundations in law for the attribution of responsibility and will of necessity present different issues for determination in the trial. Often the Crown will present its case on an alternative basis and both possibilities will then be dealt with in evidence and submissions. Here, the applicants were required to meet only the contention that they acted in concert and they proceeded on that footing. In short, neither had to meet the allegation that he was an aider and abettor of some other person or persons and clearly neither attempted to do so.

To prove that or to satisfy you that the accused should be found guilty of these offences, the Crown does not have to prove that an individual accused committed an individual act in respect of these particular offences. What it has to prove is that if the crime was committed and that the accused are implicated in a way that I will discuss now in the commission of this offence, the Crown does not have to prove that either of the accused were the actual perpetrator of an assault on Mr Gallo or Mr Morfea.

The Crown has to prove that the accused were participants in a way that I will describe. The law can prove that people other than an actual perpetrator were participants in a crime for these purposes, one of two ways. And that is what I will discuss with you at the moment. Only one of those has been discussed with you so far by counsel by Mr Hands in of course his opening only I think, but it seems to me that the other way has more relevance to the facts of this case (our emphasis).

After instructing them with respect to the concept of acting in concert, he addressed the concept of aiding and abetting -

I am sure it (aiding and abetting) is an expression that you have heard and it is a less formal method than what I have discussed in respect of acting in concert. And it seems to me, this is a comment by me that does not bind you, it seems to me to have more relevance to the facts of this case than the concept of acting in concert.

The law provides that one who aids and abets another to commit a crime is himself guilty of that crime. Aiding and abetting in this connection means doing one or more of these things whilst the crime is being committed. Firstly, intentionally helping someone to commit a crime. Secondly, and there are other ways in which one can aid and abet. Secondly, intentionally encouraging the other to commit a crime by words or presence or by behaviour. Or, thirdly, intentionally conveying to the other by words or presence and behaviour an assent to and a concurrence in the commission of the crime.

What that means is that in this context, if you are not satisfied that the accused was - the individual accused was an actual perpetrator of the individual offence, that is for example the blow struck to Daniel Gallo, but if you were satisfied that the accused was an aider and abetter in any of the ways that I have mentioned, that is by helping another to commit the crime, or being present and encouraging the other to commit the crime by words or behaviour, or a minor participant in the assault on Mr Gallo, for example, or that he was present and by his behaviour assented to and concurred in the commission of the crime, then the law says that such a person is equally guilty of the crime.

In this case before you would be entitled to return a verdict of guilty against either of the accused or say the first accused by way of an example, you would need to be satisfied that he was implicated in the crime. And you would need to be unanimous in that view and you would need to be satisfied beyond reasonable doubt, but you could differ as to whether you were of the opinion that he was the actual perpetrator or one of a number of perpetrators or simply an aider and abetter of the perpetrator of the offence on the veranda on the night in question. (our emphasis)

The attribution of criminal responsibility to one person for the voluntarily undertaken and separate activities of another is an extremely serious matter. In consequence, a number of principles have been developed directed to identifying and differentiating carefully between the various bases upon which an individual, who has not personally performed any of the acts constituting the offence, can be regarded as sufficiently complicit in the commission of a crime to be treated as a party to it.

The culpability which attracts the operation of the criminal law to an individual designated as an aider and abettor under those principles arises from the fact of his or her presence at the time that the crime is committed and behaviour whilst there and not by reason of any earlier agreement or arrangement with the perpetrator with respect to it. That situation is separately addressed. ... The justification for rendering the individual liable [as an aider and abettor] arises from the contribution that he or she intentionally makes to the commission of the crime. This, of course, can take different forms and these are encompassed by the broad descriptive notions of counselling, procuring, assisting or encouraging the principal offender. It is apparent that quite different questions will be thrown up according to the type of contribution alleged and the circumstances surrounding the particular offence. But whatever the form of contribution, in order to become a party to or participant in the commission of a crime by another, an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in his presence. In this sense, the aider and abettor becomes linked in purpose with the principal actor.

85 The introduction of this new basis for conviction dramatically altered the case that the applicants had to meet. As Chernov JA stated in R v Howard[5] -

It has also been recognised in a number of other cases that a redirection by the trial judge, at a very late stage in the trial, that has the effect of materially changing the prosecution's case such as to add a new basis on which the jury could convict the offender, in circumstances where the offender is denied the opportunity of meeting the new case by moulding the defence to it through evidence or through the address to the jury, will ordinarily result in a mistrial. ... It is irrelevant whether the redirection was at the instigation of the trial judge - as occurred in R v GAS - or was made at the behest of the Crown - as occurred in King v The Queen and R v Falconer-Atlee. As Deane, J said in King ... :

"... Once the Crown elected at the trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge's summing up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury."

What is critical is that in such a situation the offender has been denied the opportunity to meet the new case. It is the denial of this opportunity that ordinarily renders the trial unfair to the accused and results in a miscarriage of justice.

The same applies where the Crown is effectively permitted to put forward, for the first time in its final address, a new basis on which the accused may be convicted.

Here, the new basis upon which it was put to the jury that the applicants might possibly be convicted was introduced, and with the same risk of unfairness, by the trial judge.

86 When the jury retired to consider their verdicts, counsel for each of the applicants complained about this aspect of the charge. Surprisingly, neither the prosecutor or either of the defence counsel appeared to experience any concern that the jury might well convict the accused on the basis of and by reference to a principle of accessorial liability to which no attention had, to that stage, been directed in the trial and represented a significant departure involving different considerations to those that had been addressed in evidence and submissions. Nor was any complaint made in relation to the description by the trial judge of aiding and abetting as a 'less formal' method of proof of involvement in a crime, an expression that is troublesome as it may have been taken by the jury to suggest that the inference of guilt might be more easily drawn. A little later, his Honour said, possibly reinforcing this perception, 'you could differ as to whether you were of the opinion that he was ... simply an aider and abettor.' The word 'simply' in this context carries the connotation of a less significant involvement inherent in the role and a diminished seriousness in the finding by the jury that a person was implicated in this way. Counsel for Allouche submitted only that a verdict based on aiding and abetting was not open on the evidence in his client's case, while counsel for Abbouchi, although pointing out that the Crown had not put its case in that way, was essentially concerned with the content of the instructions given.

87 Counsel for Abbouchi, when raising his objections concerning the content of these instructions, drew his Honour's attention to passages in the judgments of the High Court in Giorgianni v R,[6] pointing out that the jury had been provided with no explanation or assistance concerning the implementation of the principle expressed in the passages:

"... No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless knowing all the essential facts which made what was done a crime he intentionally aided, abetted, counselled or procured the acts of the principal offender.

Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute to an accused person where possession of knowledge is necessary for the formation of a criminal intent."

88 His Honour refused to give any further direction, indicating that, in his view, none was required. Assuming, for present purposes, that the question whether either or both of the applicants could be found guilty could have been properly left for consideration by the jury in the circumstances, the absence of any attempt to explain the principles involved or to relate them to the evidence would, in any event, have rendered these directions inadequate.

89 The situation that existed when the jury retired to consider their verdicts was therefore that they had been instructed that they could find each of the applicant's guilty on a basis that had never been addressed in the course of the trial and in relation to which possibly misleading and clearly inadequate instruction had been given in any event. The potential for a miscarriage of justice in that situation hardly needs emphasis and the verdicts on counts 1, 3 and 5 cannot be permitted to stand.

90 We have set out a sufficient portion of the evidence adduced in the trial to make apparent, we think, that the identification evidence of the applicants as direct participants in the events relating to counts 1, 3 and 5, was of very doubtful value. The judge was mindful of its limitations, instructing the jury -

... The identifying witnesses do not purport to say: I saw - except I think in the case of Anne Gallo - I saw the accused out on the veranda, ...

It is identification of the accused being present at the house on the night in question and whether it goes beyond that in terms of identifying the perpetrators and what occurred on the deck is a matter entirely for you,... .

My comment is that, and it is important for you to realise of course that the limitation of the identification evidence and insofar as it only purports to identify the accused as having been present in the house, it does not really go any further than the accused admit because now it has been conceded at the start of the trial and in the course of final addresses by both defence counsel that the accused were present at the time, but of course it is not admitted that they were involved in what occurred on the veranda.

91 His Honour's directions of law concerning the identification evidence were given in conventional form and included the general propositions set out by the High Court in Domican v R.[7] However he did not, it was correctly contended on behalf of the applicants, in the course of giving those directions and by reference to any of the specific witnesses involved, isolate and identify for the jury the matters of significance that could reasonably be regarded as impacting upon its reliability. The contributors to the joint judgment in Domican spelled out the obligation of a trial judge in this situation -

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed... . The terms of the warning need not follow any particular formula... . But it must be cogent and effective... . It must be appropriate to the circumstances of the case... . Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case"... A warning in general terms is insufficient... . The attention of the jury "should be drawn to any weaknesses in the identification evidence"... . Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it... . It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

Certainly, when summarising the evidence, his Honour drew the attention of the jury to some of the considerations that might be seen to be relevant in this context and he did comment broadly upon its limitations but this did not satisfy his obligation in the circumstances. It is difficult to avoid the impression that he regarded the identification evidence concerning the applicants, which was crucial to the prosecution case as presented, as providing a fragile foundation to support the conviction of either of them, and that it was by reason of this view that he instructed the jury in relation to their possible liability as aiders and abettors and in the terms that he did.

92 This approach, in addition to the considerations already discussed, carried with it a potential risk that the real weaknesses in the prosecution case may have been overlooked or their significance not fully appreciated. Whether the jury was considering the possible liability of a particular applicant as an actual perpetrator or because he was acting in concert or as an aider and abettor, it was still necessary for them to direct attention as to what the prosecution had established beyond reasonable doubt that he had done. In other words, the problems posed by the identification evidence could not be avoided by shifting the emphasis to the issue of whether liability could attach as an aider and abettor. Nor could they be reasonably viewed as less significant by the adoption of this course. If anything the uncertainties inherent in the evidence called more powerfully for clear and adequate instructions to be given.

94 These grounds, having regard to the evidence and issues in the trial, are based upon highly unrealistic scenarios. Understandably, they were never the subject of submissions by counsel, and no objection was taken to the judge's charge by reason of his failure to instruct the jury concerning them. The absence of instruction in relation to them could not be realistically seen as possibly productive of a miscarriage of justice.

95 There was a deal of evidence from which it could be reasonably inferred that at least some of the males in the house were probably affected by alcohol at the time of the events. However, at no stage in the trial, was there any suggestion that either of the applicants was in this position. The matter was not raised by counsel in their final addresses, the judge did not mention this possibility in his charge and no direction on this topic was sought.

96 Nevertheless the jury returned from their deliberations, asking:

Does the law as it applies to this case allow for the evidence of excessive use of alcohol to be considered in determining state of mind?

Persons are responsible for their acts even if that act is one that they would not commit had they not been drinking to the extent that they had. Up to a certain point there is in law, that is recognized as any drug, whether it be alcohol or any other can have an effect on a person to the extent that they are incapable of forming an intention. That requires a degree of intoxication that is very significant and it's not suggested that it has any relevance to this case.

No re-direction was requested. In this Court it was pointed out that his Honour's instructions were directed only to the issue of the capacity of an individual to form the necessary mens rea and not whether by reason of the consumption of alcohol the jury might have a reasonable doubt that in fact he or she did have the required intention at the time that the actus reus was performed. Whilst this is so, the deficiency is of no consequence in the context of the particular trial. No instruction concerning intoxication had been required as there was no evidentiary foundation upon which it could be reasonably based. A full instruction would simply have informed the jury that there was simply no evidence that suggested that the consumption of alcohol may have possessed relevance to the conduct of either of the applicants. This ground possesses no merit.

97 There is, of course, no need to deal with this ground which is based upon the principle set out in R v Kotzmann[8] that even if none of the grounds relied upon succeeded, nevertheless a combination or aggregation of defects could lead the court to conclude that a miscarriage of justice had occurred.

98 Whilst the findings with respect to counts 1, 3 and 5 cannot be seen to necessarily affect the verdict on count 6, there is, in our view, a risk that the reasoning of the jury in relation to that count may have been influenced adversely to the applicants as a consequence of the misdirection given on the other counts. In that situation, we consider that the conviction on count 6 must also be set aside.

99 It was not argued before us that the verdicts should be regarded as unreasonable in the sense considered by the High Court in M v R[9] and although as we have indicated the evidence relating to the actual part played by either of the applicants in the events raises a number of issues, we do not consider that it would be appropriate to enter verdicts of acquittal. Accordingly, the convictions on each of counts 1, 3, 5 and 6 are quashed in the case of each applicant and a re-trial on each is directed. Whether or not such a trial should proceed will, of course, need to be considered by the Director of Public Prosecutions, bearing in mind the views we have expressed and on the basis of the evidence then available.

[1] Counts 2 and 4 were treated as alternatives to 1 and 3.

[2] Each has also made application for leave to appeal against sentence. In view of the conclusion at which we have arrived in each case, these applications need not be addressed.

[3] Exhibit A: Two photo boards identified with the numbers 2A and 1B.

[4] He made a statement on 4 May 2005 in relation to his viewing of the photo board. He made his statement about the incident on 18 May 2005. On 4 May 2005, when he was shown folder 2A of Exhibit A, he picked out photograph number 1. He said that that was consistent with what was in his mind when he made his statement on 18 May 2005 where he described the first male as having spiky hair.

[5] [2005] VSCA 235, [29]-[30].

At a glance

Court

Decision date

Before

Source

Judgment (163 paragraphs)

Cases Cited (3)