R v Bragias

Principles to be applied

1. The principles to be applied in determining a ground of appeal that a verdict is unreasonable, or cannot be supported, having regard to the evidence are well settled but nevertheless require careful statement. In the decision of the High Court in M v The Queen, [2] it was said [3] that the question the appellate court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The relevant passage continues: But in answering that question the court must not disregard or discounteither the consideration that the jury is the body entrusted with theprimary responsibility of determining guilt or innocence, or theconsideration that the jury has had the benefit of having seen andheard the witnesses. On the contrary, the court must pay full regardto those considerations.
2. In its application of the test stated in M, which has since been consistently reaffirmed, the appellate court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". [4] The test is not to be confused with the legal question whether a verdict of guilty was open on the evidence. [5] But nor is it to be confused with the function of the jury at trial of determining whether the offence has been proved beyond reasonable doubt.
3. In his written submissions, Mr Bragias submitted that "the principled approach" to the task includes the following proposition: "In most cases" a doubt experienced by the appellate court after making that assessment will be one that the jury should have experienced.
4. Those words are drawn from the joint judgment in M [6] and are frequently cited as if they state a discrete principle of law. To construe the words in that way overlooks the context in which they were said and, in my respectful opinion, inverts or at least misconceives their import.
5. The distinction between a doubt experienced by the appellate court (as a subjective event) and a doubt the jury should have experienced (a normative proposition) arose acutely in M. The primary judgment in the Court below had been delivered by Sully J who, with his Honour's customary disciplined approach, felt bound to dismiss the appeal applying the law as it was then understood, while recording that he had "in purely subjective terms a feeling of anxiety and discomfort about the verdicts of guilty that were returned". [7]
6. The other members of the bench (Cripps JA and Finlay J) were not plagued by such sensitivity; they concurred in dismissing the appeal but disassociated themselves from the subjective feeling recorded by their brother judge. It was in that context that the discussion of the distinction arose.
7. The joint judgment in the High Court in M discussed competing views expressed in earlier decisions as to how the task for the appellate court should be expressed. In Rattan v The Queen, [8] Barwick CJ had expressed the view that there was no practical consequence whether the task was expressed by reference to "a doubt entertained by the court itself" or "a doubt which the court decides that any reasonable jury ought to entertain", stating [9] that it was the reasonable doubt in the mind of the appellate court which was the operative factor. His Honour was of the view that any debate as to whether that was expressed as a doubt entertained by the court itself or one the court decides any reasonable jury ought to entertain amounted to "circumlocution".
8. In subsequent decisions, [10] other members of the High Court had felt it necessary to qualify those remarks, emphasising that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. As it was put in the joint judgment in M: "to ask only whether the court has a doubt may place insufficient emphasis on the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner which a court of appeal cannot". [11]
9. It was against that discussion that it was said, in the joint judgment in M [12] : But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
10. To elevate to a proposition of law the explanatory observation that "in most cases" a doubt experienced by the appellate court will be one a jury ought also to have experienced is to revert to the debate the High Court sought to quell in M.

Summary of the Crown case

1. Before turning to record relevant aspects of my own independent assessment of the evidence, it is helpful to give an overview of the Crown case. What follows is a summary of the case put by the Crown at trial. (I am not here recording my assessment of that case, although much of what follows was not in dispute at the trial.)
2. The victim of the assault was Mr Massimo Lorenzini. Sometime before the events giving rise to the charges on the indictment, he and Mr Bragias, together with their respective girlfriends, had spent a weekend in a hotel, incurring a substantial bill (including the loss of a bond, owing to the state in which the room was left). Mr Bragias paid the bill; Mr Lorenzini agreed to repay his share (the women, it seems, were exempt).
3. A month or so later, events occurred which prompted Mr Lorenzini to decide that he should not have to repay that debt to Mr Bragias. Mr Lorenzini had, for a number of years, been collecting car parts with a view to building a car. He considered the parts were worth $7,000 or $8,000. He had been keeping the parts at the workshop of a mechanic. However, he did not have the funds to continue the project. The mechanic asked him to move the parts to somewhere else until he was ready to build the car.
4. As an interim measure, Mr Lorenzini took the parts to be stored in the garage of premises occupied by Mr Bragias. He went to collect them two days later but was told, by Mr Bragias, that they had been taken by a man named "Wazza" (the nickname of the co-accused, Mr Fajloun).
5. From that time, Mr Bragias continued to pursue Mr Lorenzini for the outstanding debt from the hotel and Mr Lorenzini failed or refused to pay it.
6. On the evening of the alleged offence, 3 February 2013, Mr Lorenzini agreed to meet Mr Bragias to discuss the debt. The meeting place, nominated by Mr Bragias, was outside a brothel named "Mandy's" at Taren Point. Mr Lorenzini drove there with his girlfriend, Jasmin McMahon and an old school friend, Max Thornton. Mr Bragias was there with the co-accused, Mr Fajloun. Also present when Mr Lorenzini arrived was a man identified as Mr Danny Youssef.
7. The evidence at the trial concerning the meeting is considered in detail below. In short, the Crown case was that, when Mr Lorenzini told Mr Bragias that he had brought no money, the co-accused, Mr Fajloun, punched Mr Lorenzini and threatened him with a knife, demanding the keys to his car. The car was in fact owned by Mr Lorenzini's father but was used by Mr Lorenzini, who was paying it off to his father. Mr Lorenzini surrendered the keys and Mr Bragias left in Mr Lorenzini's car, leaving Mr Lorenzini, Ms McMahon and Mr Thornton at the scene. Mr Thornton contacted a friend, Mr Laubhan, who came to collect them in his car. At Mr Lorenzini's request, Mr Laubhan dropped Mr Lorenzini and Ms McMahon at Miranda Police Station, where Mr Lorenzini made a complaint that he had been assaulted and had his car stolen.
8. Mr Lorenzini made a full statement to police about those events, commencing that night and continuing the following morning (interrupted by a trip to hospital for treatment of his injuries). Ms McMahon also made a statement to police the next morning, similarly asserting that Mr Lorenzini had been assaulted and had his car stolen.
9. At the trial, however, Mr Lorenzini and Ms McMahon each claimed general amnesia in respect of the whole incident. Accordingly, the Crown case rested heavily on their statements to police, which were admitted for all purposes at the trial.

Applicant's submissions

1. The basis for the applicant's contention that the jury's verdict is unreasonable, or cannot be supported, having regard to the evidence was summarised in three propositions in the applicant's written submissions. I hope I do no disservice to those propositions in summarising them as follows: 1. Accepting that the written statements of the complainant and his girlfriend were before the jury, the complainant was not merely a person of low credit but was an admitted liar; he made a deliberately false statement to police and solicited a friend (who was not a witness to anything) to give a deliberately false statement to support that falsehood. His claim of "fairly universal amnesia" at the trial must be disbelieved; 2. Ms McMahon's supporting statement did not take the matter any further because there was an opportunity for them to collaborate (or else for her recollection to be contaminated by hearing Mr Lorenzini's version); she could not be cross-examined about those matters due to her own claim of near-universal amnesia; 3. the 'objective' evidence in the case (evidence of Mr Lorenzini's injury; prompt complaint; lies told by Mr Bragias in his interview with police and telephone records) cannot safely support a conviction because it went no higher than to establish that Mr Bragias took possession of the car; that Mr Lorenzini later demanded its return and that at some point he suffered a minor cut above the eye. The evidence could not establish that the injury occurred as a result of an assault in which Mr Bragias was criminally concerned committed for the purpose of taking the car; nor that the taking of the car was without consent. Mr Bragias' lies took the case little further because (as the jury heard) he was subject to bail with a curfew condition at the time and the lies he told were equally explicable by a desire to avoid admitting breaching the curfew.

Assessment of the evidence

1. It may be accepted that Mr Lorenzini's various accounts of the events of the evening included deliberately false statements (explained below). In my assessment, however, his account of having been assaulted and having his car stolen was not only open to be accepted but was compelling.
2. It is helpful to consider the relevant accounts in the order in which they were given, beginning with the SMS messages Mr Lorenzini sent to Mr Bragias immediately after their meeting, as follows: At 10:52 pm: 'that's my dad's car bro bronhit. Bak. Now' At 11:05 pm: 'bring it back' At 11:06 pm: 'You drove it. I saw you. It's not my car, it's my dads' At 11:35 pm: 'My dad's gone to the cops, mate'.
3. At 11:43 pm Mr Bragias texted back: 'I don't know what you're talking about, bro, I'll look into it for you'. Mr Lorenzini replied at 11:44 pm, saying 'Okay, well, tell my dad that you set me up, bashed me and stole his car'.
4. At 2:28 am, Mr Bragias sent a further message to Mr Lorenzini saying: "I didn't set you up bro. I didn't' drive it. I don't have a licence, bro. I'll ask around for ya. I'll come see you after work, bro. I have a curfew. I hope everything is ok TC x".
5. At the time he sent the message saying "my dad's gone to the cops", it was in fact Mr Lorenzini himself who had gone to police. At the trial, he accepted that he had told police about that message. [13]
6. When he first attended Miranda Police Station, before making a formal statement, Mr Lorenzini gave a brief account of events to Constable Stripp, as follows: [14] About 10.50 pm I went to a brothel in Taren Point to meet Harrison there. He says I owe him money and I wanted to sort it out. I went there. There were four males, one ran around assaulted me, one produced a pocket knife and said "give me the car keys". Bragias Harrison jumped in car and drove off in my car. One male's name is Wazza. It was Mandy's brother.
7. Constable Stripp's note also recorded that an ambulance was called at 12.15 am and arrived at 12.25 am.
8. Mr Lorenzini began making his formal statement before the ambulance was called. He gave an account of the events giving rise to the dispute about the hotel debt, as follows: 7. Harrison and I would go out clubbing every now and then. One weekend we planned to go out clubbing in the city, I think it was in September 2012 just the weekend before the car part dramas. I am not quite sure which month, it may have been a couple of months before. Harrison booked a room at The Meriton at Waterloo. I didn't' have money to pay for the room so Harrison booked the room and paid for it. I said "I will fix you up for my share of the room when I get paid next week". Since Harrison ripped off my engine parts, I have refused to pay him for the room. I cut him off and told him that I wanted nothing more to do with him. My share of the room would have been four hundred dollars plus my share of a cash bond. We spilt wine on the carpet and the room was a mess, so we lost the bond. As we checked out, we were told that we would lose the bond. Harrison claimed that as well as my share of the room, I owed him for the bond as well. I was prepared to pay it, but when he took my engine parts, no way would I pay him. 8. Since that time he has been calling me on my mobile and calling my home phone, banging on my parents' door at Sans Souci, he was also harassing me on Facebook, he was continually threatening me on Facebook as well.
9. Mr Lorenzini gave a detailed account of the arrangements leading up to his meeting with Mr Bragias outside the brothel. The brothel was at the top of a ramp off Parraweena Rd and had a large carpark. Mr Lorenzini said that, when he first arrived in the carpark, Mr Bragias invited him into a room. At that point he saw other people there including Danny Youssef (sitting in the driver's seat of a car) and "Wazza", who came out of the building with a female. Mr Lorenzini described her as "a fat looking thing". Wazza spoke to her and she kept saying "No, in the room, in the room".
10. The statement revealed the fear Mr Lorenzini was in at that time. He said: 18. Harrison kept saying "Come in the room". I said "I'm not going in the room, no way". Wazza also said, "Come in the room". I was worried that I would be assaulted if I went into a room with Harrison and Wazza. All this time, my girlfriend was sitting in the front seat of my car. I walked back to my car and sat in the driver's seat. Harrison followed me and walked up to my car window and said "I'll talk to you down there" indicating Parraweena Road.
11. Mr Lorenzini went down to Parraweena Rd at the bottom of the ramp leading up to the brothel and spoke to both accused there. Mr Bragias asked where the money was and Mr Lorenzini responded "I don't have money right now". Mr Fajloun said "so what did we come here for?" to which Mr Lorenzini replied "to talk".
12. Mr Lorenzini's account of what happened next included detail of the kind he is, in my view, unlikely to have made up. He said that he was planning to tell Mr Bragias and Mr Fajloun that he didn't owe any money due to his belief that Mr Bragias had stolen his car parts, but that he did not get the chance to say that because Mr Fajloun hit him at that point (twice, to the left side of his head). He said he stumbled back onto a tree and that Mr Fajloun was walking towards him again. The statement recorded that, at that point, Ms McMahon opened the car door and tried to stop "Wazza" from getting to Mr Lorenzini again by trying to block him.
13. Mr Lorenzini's statement continued: 21. I heard Wazza say, 'Get out of the car you dirty mutt, get out of here!" Jasmine ran towards me. Wazza was standing in front of me and Harrison was standing just behind him. Wazza said, "Give me the keys or I'll shank you". I believed that Wazza was talking about my car keys. I saw that he was holding a knife, I think it was in his left hand. The blade was about 15 cm long, I think it might have had a hole in the bottom of the blade and that it was a flick knife. I think it might have had a few zig zag teeth at the bottom near where his hand was. Wazza said, "give me the fucking keys" and repeated this a few times. I was standing up, but walking backwards to get away from him. I felt very frightened and threatened that Wazza would stab me or Jasmin so I threw my car keys towards him. The keys landed on the ground next to Wazza's feet. Wazza picked up the keys and threw them towards Harrison. Harrison caught the keys and jumped into the driver's seat of my car. Harrison started the car, revved it and skidded down Parraweena Road, heading in the direction of Cronulla. The road was wet and it was sprinkling with rain. 22. I saw Wazza sprint up the ramp. At this point, the green Starlet was driving down the ramp, the male who had been smoking was in the driver's seat. Wazza jumped into the front passenger seat of the Starlet and turned right onto Parraweena Road to head in the opposite direction that my car had gone in. I didn't see what happened to Danny or the Gemini. I am not sure if he and his car had already left or were still up the ramp. At no time did I speak to Danny.
14. The reference to "Danny" was a reference to Mr Youssef. He gave evidence in the trial. A reading of the transcript gives the impression that he was a difficult witness and, in particular, that he would have created a firm impression that he was hostile to the Crown, who first obtained leave for him to refresh his memory from his statement and ultimately obtained leave to cross-examine him.
15. Mr Youssef drove Mr Bragias to the meeting. He waited in his car while Mr Bragias went down the ramp to speak to Mr Lorenzini. In many respects, his account accorded with Mr Lorenzini's. Of particular note is his evidence about hearing a girl scream. In his statement to police, he was recorded as having said: "I sat in my car and I heard a girl scream. I think she might have yelled "stop!'. The yell came from the direction of the street."
16. Although the statement was not in evidence, Mr Youssef was cross-examined about those words at the trial, pursuant to the leave granted by the trial judge. In cross-examination by the Crown, Mr Youssef accepted that was what was recorded but said the police had misheard him, saying "I heard a car screech". On a reading of the transcript, that was implausible. The jury is likely to have accepted that the statement to police accurately recorded what Mr Youssef told police and that it was true. The hearing of a scream at that time was powerful corroboration of Mr Lorenzini's account of being assaulted and having his car taken against his will rather than engaging in a civilised negotiation of security for a debt.
17. Mr Laubhan gave evidence in the trial and was allowed to refresh his memory from his statement to police, which was admitted into evidence. [15] He collected Mr Lorenzini, Ms McMahon and Mr Thornton from Parraweena Rd. He said Mr Lorenzini asked him to take him to Miranda Police Station, saying "some lebo stole my car" and "they're not getting any fucken' money!" Mr Laubhan said Mr Lorenzini was "visibly upset, shaking and sweating". Mr Laubhan did not notice any injury on Mr Lorenzini. He was briefly cross-examined and confirmed that he had not noticed any injury or any blood.
18. Returning to Mr Lorenzini's account, his statement recorded his attempts to contact Mr Bragias, including the sending of the SMS messages set out above. The statement also recorded that Mr Lorenzini started giving the statement to Detective Glennan that evening but that, within an hour or so, Mr Lorenzini's eye was getting more painful and he had blurry vision, so police called an ambulance and he was taken to Sutherland Hospital.
19. The statement recorded that Mr Lorenzini was released from the hospital at about 6.30 am and attended Miranda police station again to finish making his statement, this time with Detective Watkinson.
20. At the conclusion of the statement, Mr Lorenzini listed items that were in the car when it was taken by Mr Bragias. The items listed included a basket of Mr Lorenzini's dirty clothes, which needed to be washed as Mr Lorenzini's washing machine at home was broken. He told police he planned to wash the clothes at his girlfriend's house. Also in the car were his work boots and fishing equipment including two fishing rods and reels worth about $350-$400 each.
21. It was the fact (clearly established at trial and common ground among the parties) that Mr Thornton went with Mr Lorenzini and Ms McMahon to the meeting with Mr Bragias. However, Mr Lorenzini made no reference to Mr Thornton in his first statement to police. Following the arrest of Mr Fajloun and Mr Bragias, Mr Thornton himself attended Miranda police station to make a statement about the events of that evening. It is clear enough that Mr Thornton's purpose was to exculpate Mr Bragias. However, his assistance was a mixed blessing. The version Mr Thornton gave to police was that he had attended the meeting with Mr Lorenzini and that, contrary to Mr Lorenzini's account to police, he had handed over his car voluntarily to Mr Bragias as "collateral" for the supposed debt.
22. That had implications for Mr Lorenzini's credibility, since he had made no mention of Max Thornton in his statement. Police took a further statement from him on 8 February 2013 (exhibit 12) in which he asserted (falsely) that Mr Thornton was not with him on the night. Mr Lorenzini said: Max was definitely not with me on the night and everything I said in my statement on 4 February 2013 is true. At no time did I willingly hand my keys to the offenders as collateral for money owed. I was forced to hand my keys over and threatened with a knife.
23. In that second statement, Mr Lorenzini also volunteered (falsely) that the person who collected him and Ms McMahon from Taren Point was a friend of his from work, named "Jay". He said that it was Jay who dropped him off at Miranda Police Station and that his other friend "Chris" was in the car with Jay. Mr Lorenzini went so far as to solicit Jay to make a false statement to police to support that lie (which Jay acknowledged to have been a false statement).
24. On 5 March 2013, Mr Lorenzini made a further statement to police in which he admitted the lie of the second statement, saying: The truth is that Max was there on the night. The reason why I said that he wasn't was because he begged me not to tell police that he was there. I also didn't think that he had much to do with it.
25. The statement added that Mr Thornton had reminded Mr Lorenzini that he (Mr Thornton) had a child and did not "have time for the drama", asking Mr Lorenzini to tell police that he (Mr Thornton) was not there. In the third statement, while admitting the earlier lie, Mr Lorenzini reiterated that his car was "definitely robbed" from him. He said there was no agreement for him to give the car as collateral to Mr Bragias, saying: Harrison thinks I owe him $800 for the hotel room and bond, but I refused to pay because of the car parts that he didn't return to me. I was assaulted on 3 February 2013.
26. While the statement made by Mr Thornton to police assisted Mr Bragias (by asserting that Mr Lorenzini handed the car over voluntarily as "collateral" rather than in response to an assault by Mr Fajloun), the downside for Mr Bragias was that it placed him squarely at the scene, contrary to his responses to Mr Lorenzini in the SMS messages set out above.
27. Incidentally, Mr Thornton's statement also corroborated some of the detail of Mr Lorenzini's statement, including the statement that a basket of washing had been carried to the car when they left for Taren Point. That is the kind of detail that gives an account a ring of truth. In reality (without overlooking the fact that the Crown bore the onus of proof) the defence case was one of consent or nothing.
28. Mr Thornton's account is important in that context. As to the critical aspect of the encounter, he said. Bragias' voice changed and became more firm. He said, "You owe me money! What are you going to do about it?" I looked at Massimo and I thought to myself that he appeared intimidated and a bit nervous. Massimo said, "Ok but I don't have any money on me right now." He started to stutter and was looking around. Bragias said, "Why did you meet up if you've got no money?" Massimo said, "You can take the car as collateral until I pay it but you can't keep it." Bragias said, "But when are you going to get the money?" Massimo said, "I'll pay you off week by week, that's all I can do, I can't come up with a lump sum." Bragias said "ok" and looked at the other male saying, "You drive. I'm gonna drive Muz's car." By this time, Massimo's girlfriend was out of the car, I did not see at what point she got out. I did not see Massimo hand the keys over at any time, I assumed they were in the car. As Bragias was walking towards the Suzuki, Massimo said to Bragias, "You're gonna take me home aren't you?" Bragias said, "yeah". Bragias got in the driver seat and drove off without us. The other male had already got into the white sedan and driven off. Both drove straight along east along Parraweena Road and I did not see them again. Massimo was very angry, he said "I've got all my stuff in there!" His girlfriend said, "Oh the bag of washing?" I looked at Massimo and shook my head, there was nothing I could do. I kind of thought it was funny that Bragias had said "yes" but had driven off. Massimo said, "If he doesn't come back, I'm going to go to the cops." I said, "Why would you do that for?" He said, "Because it's my dad's car." He said, "I can't go home without that car because my dad's gonna kill me!" I said, 'Why did you give it to him in the first place?" Massimo said, "I was scared. I didn't know what to do." A few minutes after Bragias left, Massimo tried to ring Bragias but he didn't answer. Masimo said, "I need my car back." I thought to myself that it didn't appear that he was going to get his car back that night. I decided to phone my friend Chris Laubhan and told him that I was stuck at Taren Point and asked if he could give me a lift. Chris agreed and arrived about 20 minutes after the incident in his champagne coloured Commodore sedan. We all jumped into Chris' car. Chris said, 'What happened?" I said, "Man, don't worry about it. Long story. You don't want to know." Massimo said, 'Can you take me to the police station?" Chris said, "Is everything alright? What happened?" Massimo said, "Don't worry about it man, just headaches."
29. Mr Thornton gave evidence at the trial. In a trial in which almost every civilian witness called by the Crown was hostile and was cross-examined by the Crown, Mr Thornton appears to have been the most difficult of all. On a reading of the transcript, it seems likely that he would have made a very poor impression as a witness. His attitude to the process of giving evidence was positively cavalier. The judge made many remarks attempting to bring his focus to the importance of the task of giving evidence.
30. Mr Thornton's account as to why he attended the police station to make a statement was particularly strange. He said, in effect, that he just happened to hear (he would not say from whom) that "two people got locked up for the incident with Massimo" and that he went to make a statement to tell police what really happened. He was cross-examined about that evidence in the trial by the Crown, in the following exchange: Q. You assumed Mr Thornton that Harrison Bragias was arrested because of the events of the night before that you were present at? A. Definitely yes. Q. That shocked you? A. Of course it shocked me. Q. That was the reason that you went to the police station at 6 or 7 pm that night? A. Yeah definitely. Q. Because you say in your statement you wanted to speak to police about what actually happened? A. That's right because I for one - I've been to gaol and I can only imagine - HIS HONOUR Q. Mr Thornton, you are volunteering information that is not part of the question, don't do that. A. Am I allowed any freedom of speech? Q. Outside the court room you can have all the freedom of speech you want. Inside the court room you are a witness here to answer questions. I do not want to have to warn you again. Answer the question? A. I am just asking you. I'm not trying to disrespect you. Q. Just do as you are told, Mr Thornton. A. Okay.
31. The judge directed the jury in the clearest terms that, if they believed Mr Thornton's evidence (as to the car being handed over voluntarily), or thought his evidence might be true, they must acquit the accused. It is hardly surprising that the jury did not believe Mr Thornton's evidence on that issue. In his sentencing judgment, the judge described Mr Thornton as "unconvincing", noting that his evidence contained material inconsistencies. Based on my reading of the transcript, I suspect that was something of an understatement on his Honour's part. In my assessment, the jury had every reason to reject Mr Thornton's account.
32. Mr Lorenzini's girlfriend, Ms McMahon, made a statement which included much of the detail contained in Mr Lorenzini's first statement. She confirmed that the four of them (herself, Mr Lorenzini, Mr Bragias and Mr Bragias's girlfriend) had stayed at a hotel together some months earlier and that Mr Bragias had paid for the hotel and had been asking Mr Lorenzini to repay him since that time; she described an incident when Mr Bragias had threatened her, seeking to recover the money; she confirmed that the meeting was arranged on 3 February 2013 "to try and sort things out"; she provided the same description of the "fat female" who had called out to Mr Lorenzini and Mr Bragias in the carpark and Mr Bragias's invitation to Mr Lorenzini to go into a room, to which Mr Lorenzini had replied "no way".
33. Concerning the critical event (including the threat with a knife), Ms McMahon's statement contained the same kind of coherent detail as Mr Lorenzini's. She said: 19. I could see Bragias sitting down on a nearby brick wall next to our vehicle and Lorenzini was standing in front of him and Wazza was standing to the right of Lorenzini around a metre away. 20. Out of nowhere Wazza swung around two or three punches with his one arm. I can't remember which one. Lorenzini stumbled back and lost his balance but did not fall over. I got out of the car and shouted "stop". I got close to Lorenzini and grabbed him. I said, "Let's go." I could see that blood was coming from Lorenzini's head above his eye. Wazza came over close to me and said, "Shut the fuck up." I looked at Wazza and thought he might hit me. I looked down at his left hand and I could see a knife blade. It was dark but I could tell it was a knife blade I could not see the handle. The blade looked around six centimetres in length. I could not see if there were any ridges in it or if it was a smooth blade. Wazza was holding it down by his side with the blade coming from his fist on the side his thumb is. I froze at the sight of the knife I became extremely frightened. Lorenzini and I both went back up on the street away from Wazza. I can't remember what Bragias was doing at this point I was paying all my attention to Wazza.
34. Ms McMahon's said that "Wazza" demanded the keys a few times before she said to Mr Lorenzini "just give them the keys". She described the same event where Mr Lorenzini threw the keys at Wazza's feet, who picked them up and threw them to Mr Bragias.
35. As already noted, both Mr Lorenzini and Ms McMahon claimed to have no recollection of those events when they gave evidence before the jury. The trial judge granted leave to the Crown to cross examine each of them and their statements were admitted into evidence under s 60 of the Evidence Act 1995 (NSW). There is no suggestion that the trial judge erred by admitting the statements into evidence.
36. As submitted on behalf of the Crown in this Court, the applicant's submissions in support of the appeal gloss over the significance of that evidence. The statements were admissible as to the truth of their contents and provided a compelling, coherent account that amply supports the guilt of the applicant.
37. The applicant's submissions rested heavily on the fact that Mr Lorenzini's account to police included the admitted lie (in his second statement) that Mr Thornton was not present on the evening in question (and the fact that he prevailed upon another person to lie in order to support that lie). However, Mr Lorenzini's third statement gave a plausible explanation for those matters.
38. In my assessment, Mr Lorenzini's statements to police rang true in many respects. The fact that there had been a hotel bill was proved by objective evidence. It was common ground that Mr Bragias had paid the bill. Whatever the merits of Mr Lorenzini's subsequent conclusion that he no longer owed that money, there was plainly a hot dispute about that between the two men. Ms McMahon's account of an earlier confrontation with Mr Bragias amply supports the conclusion that Mr Bragias was not a person with whom to mess when it came to matters of debt.
39. Both Mr Lorenzini and Ms McMahon included, in their statements, the detail of the invitation into the room in the brothel and Mr Lorenzini's fear of going into that room. That evidence provided powerful support for a scenario of confrontation and fear rather than a businesslike negotiation of collateral for a debt. The detail of the two statements is, frankly, too realistic to have been fabricated. It is inherently unlikely that Mr Lorenzini would voluntarily hand over his father's car together with a basket of his own dirty washing, his work boots and his valuable fishing rods. Even Mr Thornton's statement supposedly exculpating Mr Bragias provided powerful support for the scenario that Mr Bragias and the other male were behaving in a threatening manner and that Mr Lorenzini was scared. Mr Laubhan's evidence supported that conclusion.
40. In the circumstances, the fact that Mr Lorenzini was in fact injured, in my assessment, sealed the case against Mr Bragias. There was compelling, uncontroversial objective evidence that Mr Lorenzini was not only visibly upset when Mr Laubhan picked him up but had in fact been injured that night. Ms McMahon saw the wound bleeding; police photographed it; they determined to suspend the taking of the statement because of the symptoms Mr Lorenzini was exhibiting, arranging for him to be taken to hospital; ambulance officers examined and recorded the injury and he was in fact taken to hospital and admitted for the night. That evidence overwhelmingly supported Mr Lorenzini's version of events.

Jury's advantage in seeing and hearing the witnesses

1. The applicant submitted that this is a case in which any doubt entertained by this Court is not able to be resolved by reference to the fact that the jury saw the witnesses, since the critical witnesses (Mr Lorenzini and Ms McMahon) gave no evidence to speak of at the trial. For the reasons set out above, I do not entertain a reasonable doubt as to the guilt of the applicant. However, even if I did, I would reject the submission that this is not a case in which the jury enjoyed any advantage over this Court. Mr Lorenzini was cross- examined for days by the Crown pursuant to the leave granted by the trial judge. The manner in which he explained his lack of recollection (in circumstances where he accepted that he had made his various statements to police) was itself an aspect of the evidence for the jury's assessment. By way of example, his evidence in chief included the following exchange: Q. At 10.32 you telephoned him back and said, "where do you want to meet me." You told the police that's what you said to Bragias? A. Yes. Q. You told the police that Mr Bragias had said "I am at Cronulla at the moment", correct? A. Yeah. Q. I will read the whole thing out? A. You realise I'm just agreeing with you to get through this. You saying all this to me, I don't remember it. It's - I said it here and my signature's there so I have no choice but to say [yes] to you to get through this. Q. Everything you told the police in your statement was the truth, wasn't it? A. At the time I thought it was but I just don't remember it now, it was so long ago.
2. The jury was able to assess Mr Lorenzini's demeanour when he gave the answer "you realise I'm just agreeing with you to get through this". That was on the first day of his evidence (21 October 2014). Even then, there was an objection to the Crown cross-examination on the grounds that it was "boring more than anything else" (an objection correctly rejected by the trial judge). The cross examination by the Crown continued for days and, in my view, included many answers of the kind that would have given the jury the opportunity to assess, in an evaluative way, the claim of amnesia and, to a degree, the flavour of the underlying events. Perhaps confusingly for the jury, counsel who appeared for the applicant at the trial (not counsel who appeared on the appeal) cross examined Mr Lorenzini to the effect that his claimed amnesia was "a bold faced lie" and that he in fact had a memory of what happened on the night and that he "wouldn't have lied to the ambulance officers" (whom he told he had been punched). [16]
3. Ultimately, the lies that were established had a coherent quality; the one thing the witnesses had in common was that none of them would give evidence against the accused. If anything, that was an aspect of the evidence that reinforced the Crown case.

Conclusion

1. In any event, as already recorded, an assessment of the evidence has not excited any doubt in my mind as to the applicant's guilt. I am not persuaded that the jury ought to have entertained a doubt in this case.
2. For those reasons, I am of the view that leave to appeal should be granted but that the appeal must be dismissed.
3. R A HULME J: I am grateful for the thorough analysis of the evidence provided by McCallum J to which I have nothing to usefully add. In my own assessment it was well open to the jury to be satisfied beyond reasonable doubt of Mr Bragias' guilt. I agree that leave to appeal should be granted but the appeal dismissed.
4. SCHMIDT J: I also consider that on the evidence discussed by McCallum J, it was well open to the jury to be satisfied beyond reasonable doubt that Mr Bragias was guilty of the offence charged and that accordingly, leave to appeal should be granted, but the appeal dismissed.

Endnotes

1. Criminal Appeal Act 1912 (NSW), s 6(1).
2. (1994) 181 CLR 487; [1994] HCA 63.
3. At 493, [7] per Mason CJ, Deane, Dawson and Toohey JJ.
4. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14] per French CJ, Gummow and Kiefel JJ, citing Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at 473 per Deane, Toohey and Gaudron JJ.
5. M v The Queen at 493, [7].
6. M v The Queen at 494, [9].
7. Cited in the joint judgment in the High Court in M v The Queen at 491.
8. (1974) 131 CLR 510; [1974] HCA 35.
9. Rattan v The Queen at 516; [14].
10. Whitehorn v The Queen (1983) 152 CLR 657 at 687 and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 532-534.
11. M v The Queen at 494; [8].
12. M v The Queen at 494, [9].
13. T259-260.
14. Exhibit 15; accepted by Mr Lorenzini to be a version he gave to Constable Stripp at T301.11.
15. Exhibit 37.
16. T390-391 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2016