HIS HONOUR: This is the first of a number of pre‑trial decisions which I am called upon to make. I shall therefore spend some little time describing the nature of the proceedings for the purposes of each of the rulings which I must make.
On 21 September 2016 the Crown presented an indictment containing seven counts. The first count concerned the accused George Chambour; the second count concerned the accused Youssef Khallouf and each of the remaining five counts made the same allegation against each of the accused. The first count is an allegation that on 8 September 2013 at Sydney George Chambour did use unlawful violence towards another by conduct such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. That pleading is apt for the crime known as affray, an offence contrary to s 93C(1) of the Crimes Act 1900. Mr Chambour pleaded guilty to that count. In essence there are two affrays that were committed on 8 September 2013 relevant to these proceedings. The first affray occurred in the Opera Bar at the Sydney Opera House. The second affray occurred in the car park of the Sydney Opera House. As I understand it Mr Chambour pleaded guilty to the affray in the Opera Bar. The second count is that on 8 September 2013 at Sydney Youssef Khallouf was armed with a weapon, namely a knife, with intent to commit an indictable offence, namely assault. To that offence Mr Khallouf pleaded that he is not guilty.
To each of the following five offences each of the accused pleaded not guilty. The third count is that on 8 September 2013 each accused did use unlawful violence towards another by conduct such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. That, of course, is an allegation of affray and that represents the affray in the Opera House car park. The fourth count is that on 8 September 2013 at Sydney each of the accused whilst in company did recklessly wound Chris Pattison. The fifth count is that on the same date and at the same place whilst in company each of the accused did recklessly wound Kurtis Pattison. The sixth count is that on the same date and at the same place whilst in company each of the accused did assault Isaac Parry thereby occasioning actual bodily harm to him. The final count in the indictment is that on the same date and at the same place whilst in company each of the accused did recklessly wound Patrick White. In respect of counts 3 to 7 the Crown case is that one in particular of each of the accused wounded the alleged victim, or, in the alternative, was party to a joint criminal enterprise to either assault or recklessly wound the alleged victim.
8 September 2013 was a Sunday. On Saturday 7 September 2013 a group of people, to which I shall refer hereafter as the first group, gathered together at the Opera Bar at the Sydney Opera House to celebrate the 24th birthday of Kurtis Pattison. Mr Pattison's 24th birthday in fact occurred on 1 September. The other members of the first group were: Peggy Lee Greenwood, Mr Kurtis Pattison's partner; Mr Patrick White, Kurtis Pattison's cousin; Rebecca Greenwood, the sister of Peggy Lee Greenwood; Robert Rajonese, the boyfriend of Rebecca Greenwood; Michael Higgins, the brother of both Peggy Lee Greenwood and Rebecca Greenwood; Emily Barns, the girlfriend of Michael Higgins; Mr Almiro Rodrigues, a friend of Kurtis Pattison; males identified merely as Louis and Daniel, who were friends of Kurtis Pattison; a lady, Katrina, a friend of Kurtis Pattison; Chris Pattison, the brother of Kurtis Pattison; Christian Hazell, a friend of Chris Pattison; Isaac Parry, a friend of Chris Pattison; Thomas Crossling, a friend of Kurtis Pattison; and Durrant Brown, a friend of Chris Pattison. If my mathematics be correct, which is always problematical, there were 16 persons in the first group.
The exact number of persons in a second group is currently unknown to me. However the evidence identifies six individuals who were members of the second group. Those six are: Mr Ahmed Barakat; Mr Mahmoud Barakat, his cousin; Mr Ali Selman; Mr Abraham Kbayli; the accused Youssef Khallouf; and the accused George Chambour. It is, I think, common ground that the second group also included a number of ladies.
The first part of the first group to arrive at the Opera Bar arrived there around 7.30pm. The second part, Chris Pattison and his friends, arrived about 8.30pm. It appears to be common ground that a number of members of each group was taking alcohol. For example, exhibit 14-14, a statement of Kurtis Pattison, tells me that he estimated that he had "about six to seven Vodka Red Bull drinks" prior to the action which gives rise to the current proceedings. Mr Robert Rajonese in his statement said that he was drinking beer and then a cocktail of Malibu and pineapple and he had at least six drinks during the evening. Mr Patrick White had a Crown lager when he arrived at the Opera Bar and then started drinking Corona beers. He estimated that by midnight he had consumed about seven beers and had not eaten any proper meal and was "moderately affected by alcohol".
There are before me three Crown Case Statements. Exhibit 1-1 is the original Crown case statement. Exhibit 2-2 is the current Crown Case Statement. Exhibit 3-3 was the Crown Case Statement that was applicable up until Monday 19 September 2016 when an accommodation was reached between the Crown and Abraham Kbayli and pleas were subsequently entered by Abraham Kbayli. The current proceedings originally were against each of Kbayli and the two current accused.
Exhibit 1-1 tells me that "during the evening, Ahmed Barakat and a number of his friends (George Chambour, Abraham Kbayli, Ali Selman, Youssef Khallouf) and Ahmed's cousin (Mahmoud Barakat) were also at the Opera Bar enjoying the evening with male and female friends". It appears that a "leader" of the second group was Mr Ahmed Barakat.
Paragraph 5 of the statement of Mr William Collins, a bartender at the Opera Bar at the time, says this, and in it he is referring to Ahmed Barakat:
"During the night I noticed a male who was a regular at the bar. He was a big guy, very muscly and was of Middle Eastern background. He had a shaved head, a large nose and he was [wearing] white coloured T-shirt, a polo top, it was very tight on him. He was wearing khaki coloured pants, like trouser pants. I can't remember what type of shoes he was wearing. He comes here at least once a month and usually brings friends. Sometimes the group of friends can change to be different people. He generally brings friends of a Middle Eastern background. He always buys drinks from the inside bar because there is a specific type of vodka he likes and cocktails. We have a limited variety of drinks on the Terrace Bar and no cocktails, so I didn't serve him on this particular night. When I have served him before, he was always polite and always paid cash. He always knew what he wanted. I have noticed that he always carries lots of cash".
Mr Ahmed Barakat can be identified in a photograph, exhibit 7-7, taken, according to the time imprinted on it, at 22 minutes and 13 seconds after midnight. Mr Ahmed Barakat is the person in the foreground, wearing a white sleeved shirt, with his back to the photographer and is clearly bald headed. Immediately to his right, wearing a striped shirt, is the accused Youssef Khallouf. On the left of the photograph, also wearing a striped shirt, is Mahmoud Barakat.
At about 12.20am on the Sunday morning, Chris Pattison and his four friends commenced to leave the Opera Bar. As they walked through the Opera Bar, Christian Hazell bumped into Ahmed Barakat and a lady who was walking with him. Ahmad Barakat pushed Chris Hazel aside. Ahmed Barakat and the woman continued to walk toward the bar service area in the Opera Bar. Mr Hazell continued to walk in the direction in which he had been walking prior to colliding with Ahmed Barakat and the lady, but then turned to his left and said some words back in the direction of Mr Barakat. Mr Barakat did not respond. However, Abraham Kbayli walked towards Mr Hazell and then Ahmed Barakat followed Mr Kbayli. Mr Hazell stopped and stood looking at Mr Kbayli. The men walking with Mr Hazell also stopped and turned to confront those who were approaching them from behind.
Kbayli walked straight up to Hazell and threw a right-hand punch at Hazell which struck him in the face. Hazell stumbled backwards. One of the men in the Pattison group, Durrant Brown, punched Kbayli in the head knocking him to the ground. That punch resulted in Kbayli developing a large, red swelling near his left eye. Other men from each of the groups rushed from various parts of the Opera Bar towards where this fight had commenced. All became involved. There was clearly an affray.
Security employees arrived and intervened and separated the two groups of men. The fighting stopped. However, a few seconds later Mr Ahmed Barakat ran back at the first group and threw a punch at Chris Pattison. The fight re‑erupted. The accused, George Chambour, picked up a chair and threw it into the melee. It struck a security guard, Mr Steven Yarza, on the head causing a laceration. That was the allegation contained in count 1 of the indictment to which Mr Chambour has pleaded guilty. After that occurred, Mr Chambour was restrained by the bartender, Mr William Collins. Exhibit 12-12 are a number of still photographs taken from camera 352. The first photograph taken at 22 minutes and 22 seconds after midnight clearly shows the bartender, William Collins, restraining Mr Chambour on the left‑hand side of the photograph. The same is shown in the second photograph, timed at 00-22-22. Mr Chambour's face is clearly seen in the photograph timed 00:22:24 which shows the bartender holding Mr Chambour in a headlock. The second photograph bearing the same time shows the same thing.
Paragraph 12 of the current Crown Case Statement, exhibit 2-2, says this:
"During the fight Youssef Kallouf, was one of the men in the [second] group that evening, stood to the side of the fight and produced a knife, from his pocket, which he held by his side (count 2 Kallouf). The CCTV footage from the Opera Bar depicts a knife in Mr Kallouf's hand and shows Mr Kallouf folding the knife away and placing it in his pocket after a period of time".
The Crown Prosecutor has taken me to still photographs in exhibit 12‑12 which she submits show what is contained in paragraph 12 which I have just quoted. Whether Mr Kallouf had in his possession a knife on the evening is hotly in dispute.
The next paragraph in the current Crown Case Statement tells me that security employees then ushered the first group out of the bar while other security employees stood in front of the second group attempting to stop them from following the first group. The first group left the bar and walked towards the car park. Mahmoud Barakat, Kbayli and the accused Khallouf then moved past the security employees and followed the first group towards the car park.
The Crown Case Statement continues thus:
"15. At some point in time between the Opera Bar and the car park, Mr Kbayli said, 'Give me the shiv' and took the knife from Mr Khallouf. He was seen taking the knife from his pocket and folding it open and then moving towards the other group. One of the males said, 'Shank him. Shiv him.'
16. William Collins yelled out, 'Purple shirt [Kbayli] has a knife'. Other witnesses yelled out, 'He's got a knife'.
17. In the vicinity of the car park elevators [sic], Mr Kbayli advanced towards and shoved Michael Higgins with his left hand, whilst holding the knife in his right hand. Then he advanced towards Kurtis Pattison and shoved Kurtis Pattison. Mr Kbayli then walked towards Chris Pattison.
18. Mr Chambour arrived in the area and punched Michael Higgins. This assault is not disputed by the accused Mr Chambour.
19. A male yelled out, 'Get the knife, Youssef' and 'Give me the knife, Youssef.'"
It is the Crown case that the reference to Youssef is a reference to the accused Youssef Khallouf. I return to the Crown Case Summary:
"20. Mr Khallouf ran up to Mr Kbayli and said loudly, 'Give me the knife, give me the knife'. After a short period Mr Kbayli gave Mr Khallouf the knife, and Mr Kbayli ran towards the other group who were standing near the metal barriers separating the pedestrian walkway from the car park. Mr Khallouf was holding the knife in his right hand making slashing motions.
21. The CCTV depicts the fight between the two groups moving out of sight to the right."
I should indicate at this time that by "the metal barriers", the Crown case statement is referring to a number of bollards that have been inserted to prevent cars driving on to the area designed for pedestrian use outside the entrance to the lifts which take patrons from various parts of the Opera House building to at least one level of the car park. To the right, as indicated in the Crown case statement, there is a ramp downwards, whilst to the left is a ramp upwards, the ramp being for vehicular traffic.
Whatever happened down the ramp is not portrayed on any CCTV footage. The footage then depicts Mr Chris Pattison running backwards from the right, up the ramp, facing in the direction of those who were in pursuit of him. It is the Crown case that those in pursuit of him were Kbayli and the accused Khallouf. The Crown submits, and it is part of the Crown case, that at least Khallouf, if not Kbayli, at this time was brandishing a knife. The CCTV footage shows Mr Chris Pattison going out of view as he ran backwards up the ramp, being followed by Khallouf and Kbayli, who also go out of view. The Crown alleges that a number of stabbings occurred whilst the persons involved were going up the ramp.
The following is the Crown's reconstruction of events contained in the Crown Case Statement:
"23. Chris Pattison falls over bonnet of a vehicle and is attacked by Mr Khallouf, who was punching him with his left hand and using a stabbing motion with his right hand in which he held a knife. Chris Pattison receives wounds to his hands as a result (count 4).
24. Kurtis Pattison ran towards Mr Khallouf and kicked him in the chin, causing him to fall to the ground. Kurtis Pattison then attempted to get Mr Kbayli away from Chris Pattison. He was then stabbed in the right upper inner thigh by Mr Khallouf from his position on the ground (count 5...).
25. Isaac Parry ran at Mr Kabeli to try and get him off Chris Patterson. Mr Kabeli swung around with the knife and cut Mr Parry on the right wrist with his left middle and pinky [sic] fingers (count 6...).
"26. George Chambour was armed with a knife and was punching Patrick White. Patrick White sustained wounds to his left buttock as a result. Robert Rajonese ran out to George Chambour who turned to face him. At which point Robert Rajonese saw a knife in George Chambour's right hand (count 7...)"
The Crown Case Statement goes on to say that count 3 arises out of the allegations stated between paragraphs 14 and 25. The rest of the Crown Case Statement tells me something of the aftermath. That commences with the fact that the police arrived about 3 minutes after the two groups of people had entered the car park area. The Crown Case Statement has been supported in these preliminary applications by the statements of the relevant witnesses.
As I understand it, a real issue in dispute is whether the actions attributed to Mr Khallouf were in fact committed by Mahmoud Barakat, each of the two men wearing a striped "shirt". The first few images in exhibit 13, still photographs obtained from camera 3, the camera in the car park area, show Khallouf and Mahmoud Barakat side by side. Mr Khallouf's shirt has horizontal stripes which appear to me to be of equal width and doing the best I can on the photographic evidence the stripes are either white and dark blue or grey and dark blue. The arms of that shirt appear to be short. The shirt worn by Mahmoud Barakat has much wider, lighter stripes than the darker stripes but they, like those on the shirt worn by Mr Khallouf, are horizontal stripes. Again, doing the best I can on the photographic evidence, the shirt worn by Mahmoud Barakat contains large white stripes and narrower blue stripes, but if those stripes be blue they are a lighter blue than those of the shirt worn by Mr Khallouf. If Mr Khallouf's shirt be blue and white striped, rather than black and white striped the blue could be described as navy blue and the blue of Mr Khallouf's shirt could be described as royal blue.
The first ruling that I l must make concerns an application by the Crown to adduce tendency evidence against Mr Chambour. The tendency notice is exhibit T3. The tendency sought to be proved by the Crown is the tendency of Mr Chambour to "participate in physical violence using a knife with co-offenders". The Crown seeks to adduce into evidence a set of facts agreed between the Crown and George Chambour arising from offences committed at Granville late in the night of Friday 21 September 2012, a time almost a year prior to the offences with which I am concerned. Those agreed fats are exhibit T4.
On Friday 21 September 2012 a pre-wedding party was being held at the Grand Royale Function Centre in South Street, Granville. That party was attended by a Mr George Chambour and his wife Alaine Chambour. It was also attended by Elie Akkawi. According to paragraph 1 of exhibit T4.
"During the course of the party alcohol was consumed by many of the guests. It was freely available on the guest's [sic] tables as well as at the bar. During the course of the evening a witness observed males at the table, at which Chambour and Akkawi was [sic] seated, to be loud and rowdy."
Guests began to leave at approximately 11.45pm. Some milled around outside the function centre whilst others left without lingering behind. At about 11.59pm Elie Akkawi left the function centre and crossed to the opposite side of the street and walked down the street. He walked to his parents' car which was parked between 50 and 60 metres away from the function centre and he stood near that car, smoking a cigarette.
Mr Chambour and his wife were amongst the people milling around outside the function centre. It is to be noted that Mr Akkawi was not one of those who lingered outside the function centre. Amongst those who did, however, were three brothers, Tallal Sabbagh, Fadi Sabbagh and Amid Sabbagh and their wives and also a friend of theirs, Mr Nicholas Bechara and his wife. The agreed facts, exhibit T4 go on to state this,
"At one point, Alaine Chambour approached Tallal and asked him for a cigarette lighter. Tallal handed over his lighter and she lit a cigarette. At this point, Chambour turned around to Tallal and said, 'Are you trying to pick up my wife?' Tallal said he wasn't. A short conversation followed in which Tallal said, 'Congratulations, when did you get married?' Tallal put his hand out to shake Chambour's hand. Chambour and Tallal gripped each other's hands tightly. Tallal said, 'Relax, are you all right?' Chambour said, 'What are you looking at?' Tallal said, 'I don't know what I am looking at?' Chambour said, 'Do you think my wife is good looking?' Tallal said, 'Yes'.
Chambour then threw three upper cut punches at Tallal's face. The impact caused one of Tallal's teeth to break..."
There was then a physical response by Tallal Sabbagh to Chambour's assault. Amid Sabbagh joined in the fight. The fight moved away from the function centre south along the eastern footpath of South Street. As the fight progressed Fadi Sabbagh was trying to pull Chambour away from Tallal Sabbagh. Amid could not get close to Tallal Sabbagh because there were too many arms and bodies in the way. The agreed facts continue thus:
"(8) At one point Tallal had Chambour in a headlock and was throwing punches at Chambour. At this time Chambour continued to punch Tallal. After Tallal let Chambour go, Chambour threw a few more punches before walking away.
Chambour walked toward Amid, Amid punched Chambour many times in the face with closed right and left fists. Chambour lost his balance. At this point, Alaine came over and hit Ahmed on the back of his head with her purse. She continued to swing the purse at Ahmed. Ahmed then swung his hand and hit her in the face. Ahmed then chased Chambour. The fight lasted 37 seconds before the persons involved separated."
The next two paragraphs of T4 relate to the actions of Akkawi. His attention was drawn back to the function centre when he heard a woman scream. Akkawi approached the group that included Mr Chambour and the three Sabbagh brothers. He became involved and in the process his shirt was torn. Mr Akkawi maintained that he was assaulted and the Crown was not able to disprove that allegation by him. After he had been in the fight for about 30 seconds Akkawi retreated backwards from Amid Sabbagh. By that time his shirt had been torn. He did not have anything in his hands. Amid ran after Akkawi and kicked a metal sign towards him. The sign had been on the pavement on the footpath outside the function centre. Akkawi moved quickly onto the medium strip of South Street directly opposite the entrance to the function centre.
Some ten seconds after that Mr Chambour walked through the crowd in a northerly direction past the entrance to the Function Centre before walking between two parked motor vehicles onto South Street. At that stage he had nothing in his hands. Whilst Chambour was walking down the street Mr Akkawi walked along the medium strip parallel to Chambour. Mr Akkawi was being followed by an unidentified male holding, of all things, a bright orange witch's hat. Chambour and Akkawi met. Chambour was then approached by another male whose name is not known and that male handed Chambour a knife. Armed with the knife, Chambour ran back to the footpath where the Sabbagh brothers and their wives were standing. Amid Sabbagh saw Chambour approaching and pointed out that the group should protect themselves because Chambour had a knife, although the agreed facts used the plural noun, quite inappropriately.
A number of those outside the function centre attempted to prevent Mr Chambour approaching the Sabbagh brothers. The agreed facts continue thus:
"Chambour avoided them and ran directly towards Fadi with a knife in his hand. He made six swinging motions towards Fadi with his right hand. One hit Fadi on the head. Fadi fell to the ground during the course of that attack. Chambour continued to attack Fadi while he was on the ground. Pascale Sabbagh (Amid's wife) and Bechara eventually pulled Chambour away from Fadi, allowing Fadi to get up."
The next paragraph of exhibit T4 tells me that whilst Chambour was interacting with Fadi Sabbagh, Akkawi obtained a knife but whence he obtained the knife is not stated. Whether it was given to him or, for example, he retrieved it from the glovebox of his parent's car is unknown. Eventually Akkawi approached Amid Sabbagh and stabbed him twice in the posterior thoracic area. That caused Akkawi to be charged with wounding with intent to cause grievous bodily harm. Akkawi then turned and ran down the street in a northerly direction and out of sight. Amid start to give chase to Akkawi but desisted.
In the meantime Fadi Sabbagh had arisen from the ground to where he had been knocked by Chambour, but Chambour was restrained by Bechara. Chambour asked Bechara to let him go, and he then chased Fadi and made another stabbing motion towards his back which led to Chambour's being charged with wounding with intent to cause grievous bodily harm. Mr Bechara followed Chambour and attempted to stop him chasing Fadi. There was scuffle during which Mr Chambour punched him in the shoulder with the hand in which he held the knife that led to Chambour being charged with recklessly wounding Bechara. The next paragraph of exhibit T4 is this:
"Chambour got free of Bechara and walked down the street after Fadi. Three unidentified men tried to hold him back. Chambour threw the knife in Fadi's direction. As Chambour walked back to the function centre he yelled, 'I'm going to fuckin' kill you.'"
Chambour then met up with Akkawi and they both walked back towards the function centre. Eventually, they walked south and away from those gathered out the front of the function centre and they left the area. At 8.30am on Monday 24 September 2012, Mr Chambour attended Parramatta Police Station where he was arrested and then processed by the police.
The Crown provided me with these decisions and directed my attention to the dicta I mention:
Townsend v Townsend [2001] NSWCA 136 at [78],
R v Abrahamson, Unreported, 1994 Court of Criminal Appeal, South Australia, BC9405598 at 7 (prejudiced effect of lesser significance if trial by judge alone),
R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 at [34]-[37],
O'Keefe v R [2009] NSWCCA 121 at [95] and [59] - [62],
CGL v DPP [2010] VSCA 26 at [40],
RHB v The Queen [2011] VSCA 295 at [15] and [18],
R v Matonwal & Amood [2016] NSWCCA 174 at [92].
Mr Vasic's written submissions on behalf of the accused Chambour (MFI 6) referred me to these dicta:
R v Milton [2004] NSWCCA 195 at [31],
R v Harker [2004] NSWCCA 427 at [52],
R v Watkins [2005] NSWCCA 164 at [50],
R v GAC [2007] NSWCCA 315 at [83],
R v Ford [2009] NSWCCA 306 at [39],
DAO v R [2011] NSWCCA 63 at [42],
DJS v R [2012] NSWCCA 9 at [10],
Sokolowskyj v R NSWCCA 55 at [40],
IMM v The Queen [2016] HCA 14 at [46].
I glean from these authorities and my understanding of s 97 of the Evidence Act 1995 the following principles:
1. the greater the specificity of the tendency alleged, the more likely is it that evidence will be admitted to prove such tendency e.g. evidence of a general sexual interest in younger persons of either sex compared with the facts in the Queen v RHB:
"As the judge held, it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar, of not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home whilst the victim was in the applicant's care, while other adults were close by and the risk of detection was significant" (at [18]);
1. the greater the number of occasions the alleged tendency has been displayed, the more likely is it that the tendency will be proved, and therefore have significant probative value: The Queen v RHB at [20]: "not just one occasion when the applicant offended, but three";
2. the greater the similarities between the facts in issue and the tendency evidence sought to be adduced the more likely it is that the tendency evidence has probative value, and significant probative value, to demonstrate the tendency alleged: CGL v DPP at [40].
There are a large number of dissimilarities between the actions of Mr Chambour detailed in exhibit T4 and the actions alleged by the Crown that he took in the early hours of Sunday 8 September 2013 at Granville. At Granville Mr Chambour was the original aggressor, however, his aggression appears to have been motivated by a perception that Tallal Sabbagh had taken an interest in his wife. One can speculate that his suspicion might have been induced by excitement due to alcohol ingestion. However, it is not uncommon for men who perceive that their "partners", be those partners their wives or girlfriends, to become inflamed if they perceive that another male is taking an interest in the partner. There was then a fist fight in which the three Sabbagh brothers became involved and it appears that Mr Chambour may have come out "second best." It required his wife to intervene to assist him, but she then was assaulted by Amid Sabbagh. Chambour was then provided with a knife by a person who cannot be identified. He was not supplied with the knife by Mr Akkawi. Mr Chambour then went back to seek vengeance on the Sabbagh brothers.
Whilst he was doing that, Mr Akkawi obtained a knife from somewhere and went back to seek vengeance perhaps for what had happened to him, when he had earlier tried to become involved in the fist fight between Mr Chambour and the Sabbagh brothers. Whilst both Akkawi and Chambour used a knife at Granville, it was not the same knife and although they were known to each other, and an inference can be drawn that they were friends, there is no evidence to suggest that they acted in concert or in company. Akkawi appears to have been motivated to seek revenge for the damage done to his shirt when he became involved in the scuffle and was assaulted as recorded in [10] of exhibit T4. The retaliation carried out by Mr Chambour could have been motivated not merely because of his initial perception of Tallal Sabbagh's being interested in his wife but also by his coming "second best" in his fight with the Sabbagh brothers and, perhaps, by his knowledge of the assault perpetrated by his wife by Amid Sabbagh.
The Crown in its tendency notice relies upon Chambour's participating in physical violence using a knife "with co-offenders." Initially, the only co-offender that the Crown identified in exhibit T4 was the unidentified person who supplied Mr Chambour with the knife as set out in [13] of exhibit T4. The supply of a knife to Chambour may make the person who supplied the knife an accessory before the fact but it hardly makes him a co-offender in the perpetration of acts of violence whilst wielding the knife. Akkawi appears to have acted independently of Chambour. I cannot categorise, on the facts before me Akkawi and Chambour as co-offenders. They were not charged with complicity or conspiracy or being members of a joint criminal enterprise. Mr Chambour was not charged in those proceedings in the way that he is charged in these proceedings.
In the matter at Granville it appears that Chambour was motivated by what he perceived as being a personal insult, insult of another man's being interested in his wife and then the insult to his person when he came "second best" in his fight with the Sabbagh brothers. It is also clear that he could have been "hot under the collar" because of the assault committed on his wife. In the current matter Chambour had no role to play in the initiation of the original affray, the starting off the process. He had no part to play in the initiation of the second affray which commenced when the second group of persons at the Opera Bar decided to give chase to the first group of people who were leaving the Opera Bar for the car park.
It is clear from Mr Collins' statement, exhibit T7 and also exhibit 5-5, that he was restrained by Mr Collins until after both groups had, in essence, left the Opera Bar. At [13] of Mr Collins' statement the following commenced:
"13. The fight had started to calm down, there was still a bit of pushing and shoving and there were still words being exchanged. There were lots of swear words and yelling, but I didn't pick up on anything that was really being said. The man on the ground with me hadn't said a word to me at this stage. I picked him up with my arm still around his neck. The group of people fighting had started to move towards the ATM and a pedestrian down ramp into the car park. We started to walk after the group so I could get a better view of what the situation was. I still had a hold of him at this stage.
14. The man in the grey jumper that I had on the ground was talking to me. He said 'Let me go, let me go, they're my friends, I need to help them.' I looked away and ignored him, I wanted to look distracted. He was very calm, he wasn't yelling at me. He didn't try to budge, he wasn't resisting or anything.
15. As we arrived just before the ATM, I let him go because he didn't seem like a threat to me. He was calm and collected and I thought that he wasn't going to do anything."
In other words, as far as Mr Collins was concerned, at that stage Mr Chambour was not "hot under the collar" or agitated or perceiving himself in any way to have been slighted. He may have wanted to render assistance to his friends, but that could have been to provide assistance in the form of first aid, or, perhaps merely by pulling assailants apart. The picture of Mr Chambour painted by Mr Collins at the time Mr Collins, let him go, is, in my view, to be contrasted with the activity of Mr Chambour at Granville a year earlier, when everything points to his being motivated by jealousy and/or revenge and/or perceived personal slight when one would expect him to be acting "hot under the collar".
The motive that the Crown must be alleging in the current proceedings is that Mr Chambour wished to participate in the acts of violence, not to redress any insult or slight to himself, but to redress insult or slight to some of his friends. In my view the only similarity between what occurred at Granville in 2012 and what is alleged to have occurred at the Sydney Opera House in 2013 was the use of a knife. The use of a knife is, the Crown concedes, insufficient of itself to prove a tendency. Likewise the use of fists is of itself insufficient to prove a tendency. Likewise the fact of being in company is of itself insufficient to prove a tendency. However, although it is alleged in these proceedings that Chambour acted in company, I am not persuaded on the evidence that the Crown seeks to adduce as tendency evidence that it establishes that the offender acted using a knife in company. Likewise the use of personal violence of personal violence by itself is insufficient to establish any tendency.
In my view there is not sufficient similarity to warrant the admission of the evidence of what occurred at Granville as tendency evidence for what occurred at the Sydney Opera House almost a year later. The facts are very different and, as I said it, merely suggests a propensity to use a knife, which the Crown admits is insufficient to establish any tendency.
Furthermore, even if the evidence had any probative value it is not in my view significant probative value and this is yet another case where the evidence which the Crown seeks to adduce ought be excluded pursuant to s 101(2) of the Evidence Act 1995. In essence that subsection provides that tendency evidence about a defendant is not to be adduced by the prosecution against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Where the evidence about identification is in conflict, and where it is clear that somebody has been stabbed, it would be very easy for a jury to argue impermissibly that since the accused Chambour had previously used a knife in a fight that he must have been a wielding a knife in the Sydney Opera House car park on 8 September 2013. The prejudice that may occur in my view outweighs any probative value that the evidence has, and, furthermore, although a tribunal of fact, whether it be a jury or a judge sitting alone, would have to be warned strenuously about not misusing the tendency evidence inappropriately, there is always the possibility that it could be used impermissibly by the tribunal of fact.
In those circumstances I reject the tender of the alleged tendency evidence.
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Decision last updated: 18 October 2016