R v Ahmed

060474/99 SPIGELMAN CJ HEYDON JA JAMES J Monday 15 May 2000 REGINA v SAM AHMED JUDGMENT

1 SPIGELMAN CJ: I invite Justice James to give the first judgment. 2 JAMES J: Sam Ahmed has appealed against his conviction, after a trial in the District Court before her Honour Judge Karpin and a jury, on one count of armed robbery. The appellant was legally represented at the trial but was not legally represented on the hearing of the appeal. 3 At the trial there was no dispute that an armed robbery had taken place. What was in dispute was whether the Crown could establish that it was the appellant who had committed the armed robbery. The victim of the armed robbery was unable to identify the appellant as being the robber and hence the Crown case that it was the appellant who was the robber was a circumstantial one. 4 At the trial the victim gave evidence that he was employed as a driver by Mayne Nickless. On the morning of 12 March 1998 he was driving a Mayne Nickless van, loaded with stocks of cigarettes to be delivered to tobacconists and service stations. 5 At about 7.30 in the morning he parked the van close to the premises of a business at Earlwood, where he had to make a delivery. As he was checking the cigarettes to be delivered, he noticed someone's arm and then the right side of his face was sprayed, so that his right eye became totally blinded and his left eye partially blinded. The other person said to the driver "throw me the keys" and then raised his arm, apparently to spray the driver's face again. 6 The driver started running and was chased by the other person. The driver pulled the keys to the van out of his pocket and threw them down behind him. The other person picked up the keys, got into the van and drove the van away. Another vehicle, a landcruiser, was also driven away, following the van. The driver immediately telephoned his employer and reported the robbery and the employer notified the police. 7 The driver gave evidence at the trial that he noticed that the other person was wearing a cap and dark glasses, that he was in his twenties; of slim build, and about 5 foot 6 or 5 foot 7 inches tall, that he had four days growth of beard and an olive complexion and that he seemed to be of Lebanese appearance. 8 The driver was later shown videos by the police, which contained pictures of a number of men including the appellant but the driver was unable to identify the appellant or anyone else as the robber. 9 The stolen van was equipped with a tracking device, which was activated at 7.37 am on 12 March 1998. According to the data supplied by the tracking device, the van remained stationary for 14 minutes and it could be inferred that during this period the cigarettes were unloaded from the van. The van then commenced to travel towards Tempe railway station. 10 Police officers gave evidence at the trial that, on the basis of information conveyed by the police radio from 7.50 am onwards, they drove in the direction of a carpark near Tempe railway station. They observed the van which had been stolen in the carpark at the railway station. An unshaven, dark skinned male wearing a baseball cap was sitting in the driver's seat of the van. There was no dispute at the trial that this was the appellant. As the police approached, the van started moving but ran into a garden bed in the carpark. The appellant was then arrested by police. The time of his arrest was reported by police radio as being 7.55 am. 11 The appellant was born in July 1973, so that in March 1998 he was in his mid twenties. The appellant is of slim build, of medium height and of Lebanese extraction. 12 When he was searched by police after being arrested, a spray device with its nozzle still wet was found in his pocket. A baseball cap and dark glasses were found in the van. When questioned by police, the appellant said that he had seen two men running from the van, and that he had gone over to the van "to have a look". He saw that the keys were still in the van. The appellant said that he had found the spray device in the van. 13 The appellant gave evidence at the trial and also called evidence. The appellant gave the following version of what had happened on 12 March 1998. On that day he had to pick up a part for a vehicle his wife owned and he had to take his wife, who was pregnant, to a prenatal appointment at a hospital. He had made arrangements with a friend to use the friend's car to carry out the two tasks. On the morning of 12 March he left home at about quarter to 7 and walked and jogged to the friend's place at Arncliffe, arriving there about 40 minutes later. However, his friend told him that he had lent his car to his girlfriend and the car was unavailable for the appellant. The appellant then decided to go on foot to Tempe railway station, so that he could catch a train home and organise another lift in time to get his wife to her appointment. 14 The appellant said that when he was close to Tempe railway station he heard the screech of a vehicle pulling up quickly and he saw two people of Mediterranean appearance jump out of the vehicle and run past him. The appellant was suspicious and approached the van. He saw an object on the driver's seat of a kind he had never seen before (the spray device) and put it in his pocket. The appellant denied having started the vehicle. He denied wearing a cap and said that the cap and sunglasses were in the vehicle when he entered it. 15 The appellant's wife gave evidence confirming that she had had a medical appointment that morning. The appellant's friend gave evidence that the appellant had come to his home that morning and that he had told the appellant that the appellant would not be able to have the friend's car. 16 In a letter of 21 December 1999 to the Registrar of the Court the appellant stated his grounds of appeal against conviction as being:

(1). That the Crown failed to prove this case against me; (2). That the trial judge erred in not dismissing the jury when one of its members became absent due to the long adjournment of the trial because of her Honour's illness; (3). That the trial judge erred in her summing up to the jury."

17 The particular respects in which it was alleged that the trial judge had erred were set out in a letter which became document D in the appeal papers. I will deal with each ground of appeal in turn. 18 I will regard the first ground of appeal as raising a ground of appeal of the kind discussed by the High Court in such cases as M v The Queen and Jones v The Queen. 19 It is true that the victim was unable to identify the appellant as the robber. However, it seems to me that the Crown was able to mount a powerful circumstantial case that it was the appellant who had committed the robbery. 20 It was open to the jury to accept evidence that the victim, despite being partially blinded by the spray, gave a description of the physical appearance and clothing of the robber, which closely matched the physical appearance of the appellant and the clothing worn by the appellant when he was arrested by police and it was open to the jury to reject the suggestion that the victim had been assisted by the police in making his description of the robber. 21 The appellant was discovered by the police, only a matter of minutes after the robbery was committed, sitting alone in the driver's seat of the vehicle which had been stolen, with a spray device in his pocket. 22 In my opinion, it was open to the jury to regard the appellant's version of what had happened on that morning as fanciful. The routes which the appellant said he had taken to and from his friend's house were circuitous and not the routes likely to have been taken by a person in a hurry to ensure that his wife got to a medical appointment. The appellant claimed to be unaware of Turrella railway station, which was much closer to the friend's house than Tempe railway station. 23 The police, as they approached the carpark at Tempe railway station, had a clear view of the carpark but did not see any men running away from the carpark. 24 On the hearing of this appeal the Court received extensive written submissions on behalf of the appellant and also heard oral submissions from the appellant. I will seek to deal with what appear to be the more important of the points raised in these submissions. 25 The point was, of course, made on behalf of the appellant that there had been no identification of the appellant as the culprit by the victim. However, the trial was conducted on this basis and there was no suggestion at the trial that the victim had been able to identify the appellant. 26 It was put on behalf of the appellant that the appellant's fingerprints had not been found on the spray device. However, it seems to me this is a point of no importance, because, even on the appellant's own account, he had picked up the device and put it in his pocket. 27 It was argued on behalf of the appellant that no trace of spray had been found on the appellant's hand or clothing. However, evidence was given by an expert scientific witness that the solvents used in this kind of spray evaporate very quickly and the witness was not surprised that swabs taken from the appellant's hand had not yielded any evidence. 28 The appellant naturally referred to the evidence of alibi which I have already outlined. The evidence given by the appellant's wife was not inconsistent with the appellant having been the robber, although it is fair to say that if the appellant had been at the friend's house at the time indicated by the friend it would have been virtually impossible for him to have been at the scene of the robbery at the time the robbery took place. 29 It was put on behalf of the appellant that the victim had not been able to identify items of clothing which were shown to the victim as being the clothing worn by the robber. It is true that the victim's evidence went no higher than to say that the items of clothing he was shown were similar to, or of the same kind as, the items of clothing which had been worn by the robber. 30 A matter which was raised on behalf of the appellant was that, according to the records of transmissions on the police radio, reference was made to two offenders of ethnic appearance. It seems to me that the jury would have been entitled to accept the explanation which was put forward at the trial for this information being transmitted on police radio. At the time that the robber drove the van away from the scene of the robbery the victim noticed another vehicle, the landcruiser, immediately drive off also and follow the van. It seems clear, and indeed it was put to the jury at the trial, that another person or persons were involved in the robbery, apart from the appellant. 31 After conducting my own independent examination of the evidence and paying due regard to the advantage the jury had in seeing and hearing the witnesses give their evidence, I consider that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. I would propose that the first ground of appeal against conviction be rejected. 32 I move to the second ground of appeal. At the request of this Court, the trial judge furnished a report about the circumstances in which a juror was discharged during the trial. The trial judge stated in her report that the trial commenced on 28 July 1998 and continued on 29 July and 30 July. On 30 July it was stood over to 3 August. However, by 3 August the trial judge had become ill and the trial was adjourned. The trial judge remained ill for the rest of that week. During that week the trial judge, without attending at the court, discharged one member of the jury on the grounds that that juror wished to travel overseas. The trial judge's report continued:- "On Monday 10 August, I believe I received a letter from Mr Whitehead, advising that in view of the delay and the discharge of one juror, he would be seeking to have the jury discharged. I intend to accede to that request. However, prior to the court convening, the Crown and Mr Whitehead spoke to me in chambers. Mr Whitehead advised that his client had given him instructions that the trial should proceed, and no application should be made to discharge the jury. In informed counsel that if an application was made to discharge the jury, it would be granted. Mr Whitehead sought time to confer with counsel senior to himself, and to have further discussions with his client. That time was granted. When the court reconvened, Mr Whitehead informed me that his instructions were to proceed with the trial. I took the view that since the accused was aware of his right to have the jury discharged upon his application, and clearly wished to proceed, the trial should continue in the absence of any other compelling reason. I came to the view that in the circumstances of this trial, and in the face of the strong desire of the accused to proceed despite the advise he had received, the trial should continue. Had the application for discharge of the jury been made by counsel for the accused, that application would have been granted". 33 In short, the trial judge said in her report that she would have been prepared to discharge the jury but was informed by counsel for the appellant at the trial that the appellant wished the trial to continue, notwithstanding the loss of one juror and notwithstanding the interruption to the trial caused by the trial judge's illness. We have been informed by the appellant this morning that he did give instructions to counsel at the trial that he wished the trial to continue and did not wish to apply for a discharge. 34 I would reject this ground of appeal. I do not consider that the fact that the trial did not proceed between 30 July and 10 August led to any miscarriage of justice. On 10 August 1998 the trial judge summed up to the jury. She began her summing up by saying that because of the delay she would give a more substantial summing up than she would otherwise have given, including summarising the evidence. In her summing up, the trial judge summarised in considerable detail, the evidence of all the witnesses, including the appellant and each of his witnesses. 35 I turn to the third ground of appeal. We were not directed to any specific error made by the trial judge in her summing up. No relevant complaint about the summing up was made by counsel for the appellant at the trial. It is sufficient for me to say that, having read the transcript of the evidence and the summing up, I do not consider that the trial judge failed in her duty in any respect. In my opinion, the appeal against conviction should be dismissed. 36 SPIGELMAN CJ: I agree. 37 HEYDON JA: I agree. 38 SPIGELMAN CJ: The order of the court is: The appeal is dismissed **********

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