R v El-Hayek

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0408 FILE NUMBER(S) : LOWER COURT Stewart ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60227/03

HODGSON JA GROVE J HOWIE J

FRIDAY 27 FEBRUARY 2004 R v NAKLE EL-HAYEK Judgment 1 HODGSON JA: I agree with Howie J. 2 GROVE J: I agree with the judgment of Howie J. 3 HOWIE J: The appellant was arraigned in the District Court on an indictment containing six counts. Also arraigned on that indictment were two co-accused, Anthony Melan and John Claude Rahme. The first count on the indictment alleged that on 22 July 2000 the three accused, armed with a dangerous weapon, being a revolver, robbed Mark Allen of certain property including a silver necklace. The second count alleged that on the same date the accused Rahme demanded money with menaces from Mark Allen. The third count alleged that on or about 22 July 2000 the accused Melan had sexual intercourse with KB, who was above the age of 10 years and under the age of 16 years, being 15 years of age. The fourth count alleged that the appellant on or about the same date had sexual intercourse with KB who was then above the age of 10 years and under the age of 16 years, being 15 years of age. The fifth count alleged that on or about 27 July 2000 Rahme had sexual intercourse with KB who was then above the age of 10 years and under the age of 16 years, being 15 years of age. The sixth count alleged that between 21 July 2000 and 29 July 2000 Rahme supplied a prohibited drug, methylamphetamine. 4 After a trial before Acting Judge Stewart and a jury, guilty verdicts were returned on the first, second, fifth and sixth counts. The jury were unable to agree upon the remaining two counts, including the count alleging that the appellant had sexual intercourse with KB. 5 On 8 November 2002 the appellant was sentenced to imprisonment for 5 years and 4 months to date from 11 January 2002. His Honour specified a non-parole period of 4 years, to expire on 10 January 2006. This Court was informed that, although the appellant had lodged an application for leave to appeal against sentence, that matter was not ready to proceed on the hearing date of the appeal because of some administrative difficulty, being no fault of the appellant. The parties agreed that the Court would proceed to hear the appeal against conviction and the parties would file written submissions in respect of the appeal against sentence. Submissions were received from the appellant on 25 November 2003 and from the Crown on 26 November. Neither party sought to make oral submissions to the Court in respect of the sentence appeal. 6 The grounds of appeal against conviction are as follows:

A. His Honour was in error in failing to sever the counts relating to the incident at Richie Benaud Park from the subsequent incidents relating to the sexual intercourse charge and supply drug charge at various hotels in Parramatta.

B. His Honour failed to give the jury any or any proper directions about the restrictions on the use, if any, to which they could put evidence led in support of one count in any other count.

C. His Honour failed to give the jury any directions about the use to which they could put evidence led against the appellant of uncharged criminal acts.

D. His Honour was in error in failing to discharge the jury on 17 July after [BK] gave evidence that "after they got back they said that they were going to kill us".

E. His Honour was in error in failing to stop the cross-examination of [MH] by the Crown Prosecutor from which the implication arose that the appellant had supplied drugs to her.

F. The Crown Prosecutor's conduct of the trial was sufficiently unfair and inappropriate to cause the trial to have miscarried.

7 There had been a previous trial of the appellant and his co-accused before the same judge and a jury but that trial had been aborted before verdict. It was agreed between the parties that rulings made by acting Judge Stewart during the course of that trial would apply to the second trial. One ruling made by the trial judge was a refusal to order separate trials of the various allegations in the indictment. That ruling is the subject of the first ground of appeal. In order to understand that complaint and the other grounds of appeal it is necessary to outline the facts of the Crown case, but not in any great detail. There were some discrepancies and inconsistencies in the accounts given by the Crown witnesses of the events giving rise to the charges but they are of no importance for the determination of the grounds of appeal. 8 On 21 July 2000 a young man, Mark Allen, and three females, KB, BK and BU, each of whom was aged 15 years at the time, met by chance another group of young persons at Pennant Hills. The second group consisted of one female, Michelle Hoy, and three males, who can be referred to as "Richo", "Ricky and "Phil". The two groups decided to travel together in the one vehicle owned by a member of the second group to a public park in Parramatta named Belmore Park or Richie Benaud Oval. 9 Before they reached the park, KB, BK and BU smoked cannabis and each took a tablet that they believed to be ecstasy. They had purchased these tablets from Richo shortly after they met him. Mark Allen also consumed cannabis and alcohol on the way to the park. Just after midnight Ms Hoy telephoned the appellant and arranged to meet him at the park. 10 Shortly after Mark Allen and the rest of the group arrived at the park, the appellant and Rahme turned up in a motor vehicle. A short time later Melan arrived in another vehicle. Ms Hoy and Richo were at that time sitting on a log fence that surrounded the park and the remaining six members of the group were still in the vehicle in which they had travelled to the park. The appellant briefly spoke to Ms Hoy and then joined Rahme and Melan. 11 The appellant and Rahme approached the vehicle in which the group was sitting and each produced a firearm. The appellant's weapon was described as small and silver: BK said that it was a .22 Phoenix automatic. Rahme's weapon was described as a revolver. Rahme ordered the group to remove their valuables and to leave the vehicle. The three girls and Allen were searched and items of property taken from them. The appellant then searched through the vehicle and found a mobile phone that Allen had hidden. Allen was wearing a chain and pendant around his neck. When the appellant asked what it was, Allen removed it and gave it to him. The appellant kept the chain but returned the pendant. The contents of Allen's wallet were also taken. 12 The robbery of Mark Allen gave rise to the first count on the indictment. There was no charge in relation to the alleged robbery of the three girls. 13 Rahme demanded that Allen disclose his PIN number. Allen told him a number but it proved to be false when one of the other two men tried to access the account. Rahme then threatened Allen with his firearm and demanded that he produce $2,000 or $3,000 the next day. He made threats about what would happen to Allen and his family if he failed to produce the money by midday. Rahme gave Allen a piece of paper with a telephone number that Allen was to ring after he obtained the money. When Allen said he would not be able to produce such a large sum, Rahme held the revolver to his head. 14 At about this time, the appellant discharged his weapon. There was conflicting evidence as to where it was discharged and how many shots were fired. Rahme's threats to Allen gave rise to the second count in the indictment but there was no charge laid against the appellant for any involvement he may have had in the intimidation of Allen by Rahme. This was notwithstanding evidence given of his participation by threatening Allen with his weapon at the time the demands were made by Rahme. 15 Rahme then said to the three girls, "Why are you hanging around with these losers? You'd better come with us". BK, KB, and BU went with the appellant and Melan in one vehicle and Rahme left in the other vehicle by himself. Before they entered Melan's vehicle, Ms Hoy had told the girls that the three men would not hurt them but she gave them the number of her mobile telephone number in case they became frightened. Each of the girls gave evidence that they went with the men because they were scared. 16 Allen went with Richo to Bondi Beach where they waited until daylight. Fearing that Rahme would make good his threats, Allen spent the day walking around Castle Hill and did not return to his home until the next day, 23 July. 17 In the meantime Melan and the appellant took the three girls to the Courtyard Marriott Hotel in Parramatta where Melan rented a room. The appellant, Melan and the girls were joined later in the room by Rahme who brought a container filled with what the girls were told were drugs. He invited the girls to have some and they did so. While they were in the company of the three men, the girls used drugs, both in powder and tablet form, supplied by Rahme on a number of occasions. On his arrest Rahme was found to have a snorter and a plastic bag containing amphetamine powder in the pocket of his pants. His supply of drugs to the three girls gave rise to the sixth count in the indictment. 18 On one occasion while they were at the hotel, Melan ordered KB to run a bath and then to get into it. She complied and was then joined in the bath by Melan. KB alleged that she was required to perform fellatio on Melan in the bath and later while he sat on the toilet seat. This allegation gave rise to the third count in the indictment upon which the jury could not agree on a verdict. 19 KB also alleged that the appellant ordered her to perform fellatio on him. This incident occurred when the appellant was lying naked on a bed in the hotel room. BU was also lying on the bed at the time. KB said she complied with the appellant's demand because she was in fear arising from the presence of firearms in the room and also because of her drug-induced state. This allegation gave rise to the fourth count in the indictment upon which the jury could not agree on a verdict. 20 Over the next week, BK and KB stayed with the appellant, Melan and Rahme at four different hotels in Parramatta. BU left the group on Sunday 23 July but did not tell anybody of the whereabouts of the other two girls. She said that she was not permitted to leave on the Saturday. 21 On the night of 27 July KB, BK and the three men were staying in a room at the Pacific International Hotel in Parramatta booked in the name of "Rahma". KB alleged that while Rahme was lying naked on the bed, he sprinkled some powder, which she believed was amphetamine, on his penis. He then ordered her to suck it off. KB gave evidence that she felt she had to comply with this demand because of the presence of firearms in the room. BU gave evidence that Rahme wore a holster on his waist and often played with the gun while lying on the bed. This incident gave rise to the fifth count on the indictment. 22 On one occasion the two girls were taken to a shopping mall and given money by Rahme to buy clothes, provided that they were black. They were allowed to leave the company of the three men but told to return to a designated meeting place in an hour. BK gave evidence that the appellant was carrying a weapon at this time. The girls returned to the place as arranged and left with the three men returning to the hotel room. The girls gave evidence that they did so because they believed that the three men were keeping them under surveillance. 23 On Friday 28 July BK telephoned a friend and asked if she could arrange to have her and KB picked up from the hotel. At about 8 pm that evening police went to the room at the Pacific International Hotel and found the two girls. KB said, "Can we get out of here quick, can we go?" The police removed the girls to Castle Hill Police Station where they were interviewed and then returned to the care of their parents. They were described as being tired, distressed and affected by drugs. At about 10pm that evening police returned to the hotel room and arrested the appellant, Rahme and Melan. A loaded .22 revolver was found under a lounge on which Rahme had been sitting. Some loose ammunition was also located. Rahme admitted that the gun belonged to him. Police also located tablets and powder, later found to contain methylamphetamine. Rahme also admitted ownership of these drugs. 24 KB was medically examined. Traces of amphetamine and methylamphetamine were found in her urine sample. She had an ulcer in her mouth that was consistent with having performed acts of fellatio. 25 The appellant did not give evidence but called Ms Hoy as a witness in relation to the events at Richie Benaud Oval. He also called evidence of his good character. It was his case that no robbery had taken place and that he did not have a gun. Ms Hoy's evidence was that she saw no person with a gun at the park nor did she see any of the men threatening anybody, including Mark Allen. She said that the three girls went with the men willingly. As one of the grounds of appeal relates to the cross-examination of this witness by the Crown Prosecutor I will return to her evidence in more detail later. 26 In respect of the allegation of sexual assault contained in the fourth count on the indictment, the appellant's case was that KB had consented to intercourse and that he believed on reasonable grounds that she was over the age of 16 years. If the appellant had proved these facts, they would have provided him with a defence to the charge, see s 77(2) of the Crimes Act (now repealed but current at the time of the incidents giving rise to the counts in the indictment). It was the appellant's case that the girls were always free to leave the hotels and return home if they wished to do so.

Ground A Refusal to grant separate trials 27 As has already been indicated, there was an unsuccessful application made by the defence before the trial commenced that the counts relating to the alleged incidents at Richie Benaud Oval be separated from the counts relating to the incidents at the hotels involving allegations of sexual offences and the supply of drugs. The trial judge in the exercise of his discretion refused the application. There was no attempt to seek leave to appeal against that determination under s 5F of the Criminal Appeal Act. 28 The question before this Court is now, not so much whether the trial judge's discretion miscarried, but whether in light of all that happened during the course of the trial there has been a miscarriage of justice by reason of the joint trial of the various allegations raised by the counts in the indictment. Even had the trial judge's decision to refuse the application been correct at the time it was made, it does not follow that this Court should not review that decision in light of the evidence and issues that arose during the course of the trial: R v Guldur (1986) 8 NSWLR 12 at 15; Verma (1987) 30 A Crim R 441. Of course, the present appeal is concerned with the appellant's conviction for armed robbery and whether that conviction may have been rendered unsafe by the admission of evidence relating to the incidents that happened thereafter and the further allegations made by the three girls of what transpired at the hotels in the week following. 29 This ground of appeal is closely bound up with the second ground of appeal contending that his Honour failed to direct the jury as to the relevance of the evidence led in respect of the various counts and what use they either could or could not make of the evidence relating to one count when considering another count on the indictment. Clearly, if there is a likelihood that the jury might misapply evidence relating to one count when dealing with another, careful directions are required to address that possibility. It may be the case that so great is the risk of unfair prejudice flowing from a joint trial of separate, though related, allegations that no direction, warning or caution may be sufficient to ensure a fair trial of each allegation. In such a case a separate trial will be the only remedy. 30 On the hearing of the separate trial application the Crown Prosecutor described the evidence of what happened at Richie Benaud Oval as "background" evidence to the allegations concerned with the incidents at the hotels that gave rise to the third to sixth counts. With respect, to describe the evidence of the activities of the appellants and his co-accused at the park in this way would be a very significant underestimation of the probative value of the evidence. 31 The concept of evidence admitted as "background" to the charges in the indictment has generally been considered in the context of sexual assault trials and the admissibility of uncharged acts of criminality of a similar kind to that alleged in the indictment, see generally Gipp v The Queen (1998) 194 CLR 106 and R v TAB [2002] NSWCCA 274 where the various authorities were considered in detail. It is generally accepted that such evidence can be admitted to give context to the particular allegations set out in the counts in the indictment to assist the jury to understand the evidence of the complainant in respect of the particular allegations upon which the accused stands trial. However, because of the risk of prejudice arising from the introduction of such evidence, limits may be placed upon the scope of the material admitted for that purpose and directions may be required to ensure that the jury understands its relevance. If the evidence cannot provide relevant context, it is not admissible; R v Marsh [2000] NSWCCA 370. 32 But the evidence of what happened at Richie Benaud Oval was not evidence of this nature. It did not simply provide a context or background to the allegations arising from the subsequent behaviour of the appellant and his co-accused. Rather it was highly relevant to an issue that was fundamental to the determination of the allegations contained in the third to fifth counts on the indictment; that is whether the complainant was consenting to the acts of fellatio in the hotel rooms. The issue of consent was relevant because it was part of the defence being raised by the appellant and his co-accused to the sexual assault counts. The defence did not dispute that the acts of sexual intercourse alleged by the complainant occurred. 33 The events in the park were critical to the jury's consideration of the circumstances in which the three girls left with the three men and this in turn was significant to the jury's assessment of the circumstances in which KB remained with the appellant and his co-accused for a period of almost a week at different hotels. The allegations of threats of violence, and the use of firearms at the park involved in the first and second counts on the indictment were part of the circumstances relied upon by the Crown as evidence rebutting the anticipated defence that the complainant was consenting to sexual intercourse with each of the accused. 34 In my view there was a connected series of events commencing with the meeting of the two groups at Pennant Hills and ending with the police finding BK and KB in the hotel room. The parties never suggested otherwise. The dispute was about the nature of those events, and, in particular, what occurred at the park that resulted in the three girls leaving with three men whom they had just met there. A jury could not have determined the issues arising from the third to fifth counts without resolving the facts in dispute concerning the events at Richie Benaud Oval. I accept the Crown's submissions that the allegations of the threats of violence to Mark Allen, the armed robbery of him, and the use of firearms by Rahme and the appellant would have been admissible on a trial of the sexual offences even had the first and second counts not been before the jury. 35 Mr Golding, who appeared for the appellant, acknowledged that the circumstances in which KB left the park with the appellant and Melan was relevant to the issue of consent arising from the fourth count. But he submitted that the admission of this evidence gave rise to a significant issue which involved the jury considering a highly prejudicial and irrelevant matter, being the circumstances in which the other two girls, BK and BU, came to leave the park with the appellant and Melan and whether their wills were also overborne. The argument was that, as BK and BU were not the subject of any count in the indictment, whatever happened to them at the park and their states of mind were irrelevant to any of the charges before the jury. 36 Further, Mr Golding argued that there were at least five considerations that ought to have led to a separate trial of the counts arising from the events at the park from those arising from events at the hotels. These were set out in the written submissions filed for the appellant as follows:

(a) the evidence relating to the armed robbery was probative of any of the counts alleging sexual activity against [KB];

(b) the evidence relating to the sexual activity was probative of the armed robbery count;

(c) the evidence of the kidnapping of [BU] and [BK] was probative of any of the counts in the indictment;

(d) the evidence of the ordeals suffered by [BU] and [BK] at the hotels or the park was probative of any of the counts in the indictment;

(e) the evidence of the supply of drugs was relevant to the armed robbery count." 37 Prima facie the Crown was entitled to indict the appellant and his co-accused as it did. This follows, in my view, from the fact that all the counts arose from a connected set of circumstances. See Criminal Procedure Act s 29. The events at the park were clearly relevant to the issues arising from the third to fifth counts. The sixth count, supplying of drugs by Rahme, was also relevant to the issues arising on those counts. It does not follow that, simply because the events giving rise to the third to sixth counts had no, or little, relevance to the first two counts, there should be a separate trial of those counts. A trial judge would be entitled to sever the indictment only where the joinder of any of the counts could result in an unfair trial of some other count on the indictment. 38 I would not be prepared to accept the proposition that the events occurring after the girls had left the park were totally irrelevant to a consideration of what happened in the park. If the jury concluded that there was a possibility that the girls freely went with the appellant and Melan and then agreed to stay with them in the hotels and participate in sexual activity, such a finding would necessarily raise a doubt about whether their allegations of threats and the use of weapons in the park were true. Nor was the evidence of the possession of weapons during the week when the girls were in the company of the three men irrelevant to the allegations of the use of firearms at the park. 39 It seems to me that the allegations in the different counts in the indictment were inextricably bound together and it would have been unrealistic to have them decided separately and independently by different juries. On the other hand, I find it difficult to see how the jury could misuse the evidence relating to the sexual assault count in determining the armed robbery count, such that the appellant was deprived of a fair trial on that count. The allegations made by the girls were either accepted by the jury to the relevant standard or they were not. 40 There is, in my opinion, no merit in the complaint made about the admission of the evidence of BU and BK. They were witnesses to the events the subject of the counts in the indictment and the Crown was required to call them. While evidence of their states of mind at any particular time was not decisive of the state of mind of the complainant at that point in time, their evidence was clearly relevant as to the surrounding facts and circumstances which were relevant to an assessment of KB's state of mind. It does not seem to me to matter that the Crown might have laid charges against the appellant or his co-accused in respect of their allegations but chose not to do so. Their evidence does not become irrelevant to the charges the Crown determined to bring against the appellant simply because of a failure of the Crown to charge all the offences that were open on their evidence. The evidence of BU and BK as to the circumstances in which they accompanied the appellant and Melan and stayed with them in the hotels was relevant to a consideration of the circumstances in which KB went and stayed with the appellant and his co-accused. 41 Throughout the appellant's arguments before this Court there ran an underlying assertion that the Crown either could not, or should not, lead evidence of conduct that might have amounted to a criminal offence unless that offence was charged. Hence there was a complaint that the Crown asserted that the three girls were taken and held against their will even though no charge of kidnapping was laid against the appellant or his co-accused. There was a similar complaint about the admission of the evidence of the appellant discharging his weapon at the time Rahme was allegedly threatening Allen in the circumstance that there was no charge before the jury in respect of that aspect of the appellant's conduct. 42 I do not accept that there is any limit on the Crown's right, or duty, to call relevant evidence on the basis that no charge has been laid in respect of the conduct revealed by that evidence. Generally the Crown has a complete discretion as to what charge is preferred on the evidence in its possession; R v Weaver (1931) 45 CLR 321 at 334. Similarly the Crown has a discretion as to the number of charges to be laid in respect of a particular factual scenario, provided that the number or nature of the charges does not lead to unfairness or oppression. It is now trite law that, if evidence is relevant to a charge before the court, it is admissible notwithstanding that it reveals some other criminal offence; Markby v The Queen (1978) 140 CLR 108 at 116; and generally Harriman v The Queen (1989) 167 CLR 590. The only restriction on the Crown leading such evidence is where it is subject to an exclusionary rule under the Evidence Act, such as under ss 97, 98 or 137, or where its reception would otherwise result in a miscarriage of justice. 43 I am of the opinion that the interests of justice generally justified, if not required, that the trial proceed as it did. The trial judge was right to refuse the application for separate trials and there was no resulting miscarriage of justice. The first ground, therefore, fails.

Ground B Absence of directions on the use of evidence 44 Reference has already been made to the complaint that the refusal to order separate trials was exacerbated by the trial judge's failure to indicate what use could be made, or could not be made, of the evidence admitted in respect of one count when dealing with the other count or how the jury should approach evidence of uncharged criminal conduct. No request was made by counsel at the trial for any direction, warning, or comment to be made by his Honour as to the matter of which complaint is now made. 45 In a case where evidence has been admitted of uncharged criminal acts on some basis other than as propensity evidence, a trial judge should give directions to the jury as to the relevance of that evidence. In an appropriate case the trial judge must warn the jury against an impermissible line of reasoning arising from the evidence before them. The trial judge would be required to indicate to the jury, not only the way in which they might use the evidence in resolving the question of the accused's guilt, but also how the evidence must not be used in the course of their deliberations: BRS v The Queen (1997) 191 CLR 275. 46 But such considerations did not arise in the appellant's trial. There was no real risk that the jury could misuse any uncharged allegation made against the appellant, nor could it misapply the evidence relevant to one count when considering the other. A direction or warning is required when it is necessary to avoid a perceptible risk of a miscarriage of justice: see generally R v Stewart (2001) 52 NSWLR 301. The complaint in the present case is that jury were given no assistance in relation to how they were to use the evidence of uncharged acts or the evidence relevant to one charge but not the other. One might answer the complaint by asking, "What assistance did they need?" 47 In the written submissions filed on behalf of the appellant the following is stated:

"His Honour was obliged to tell the jury that they could not use the evidence probative of the appellant's role in the armed robbery in any way other than going to the state of mind of the victim in the sexual intercourse count and, indeed, it would have been appropriate to direct the jury that whatever state of mind was induced in [KB] as a result of the incident in the park, those factors may not have been operating many days later. Nor could they use the evidence in the sexual intercourse count as any sort of proof in the armed robbery count. The use to which the evidence in the different counts could be put was very limited: BRS v R 191 CLR 275". 48 The difficulty that I have with this submission is how the directions sought would have had any practical significance having regard to the facts and issues in the trial. For example, how might the jury have used the evidence relating to the armed robbery for any purpose other than in determining the state of mind of the complainant after she left the park with the appellant? How could the evidence relating to the sexual intercourse of KB, which was not disputed, be used by the jury in any way to determine the allegation of the robbery of Allen? What impermissible line of reasoning did the jury have to be warned against undertaking when determining either of the counts in the indictment by reason of the existence of evidence unrelated to that particular count? 49 This issues before the jury were clearly established by the time they retired to consider their verdicts. They were in my view, despite submissions in this Court to the contrary, relatively straightforward. Underlying the whole of the trial was the credibility of the Crown witnesses as to events at the park. The Crown alleged that the girls and Allen were subject to the threats of violence aided by the use of firearms by Rahme and the appellant. The defence case was that nothing untoward happened in the park. While what happened thereafter was, apart from credibility issues, of limited relevance to the determination of that dispute the jury could not have understood otherwise. 50 In his oral submissions before this Court Mr Golding contended that there was a risk that the jury might have used what they found to be conduct of the appellant that he behaved in a "thuggish, boorish, and violent way, with the vulnerable woman, including an instance of where he exposed from his person a gun to all of them" to reason that "if a young man would behave in that way with three vulnerable young women, then that would increase the probabilities of the facts in issue in the armed robbery as alleged". 51 I can see no basis upon which the jury might reasonably find the allegations as to misconduct by the appellant following the incident at the park were more likely to be true than were the allegations of his misconduct in the park. For example, the allegation that the accused displayed a weapon to the complainant and her companion in the shopping mall was no more likely to be accepted by the jury than the allegation that he displayed and discharged a weapon in the park. It was not as if the allegations as to later misconduct were corroborated in some way that the allegations in relation to the earlier incident were not. To the contrary, the allegations in relation to the armed robbery were supported by the evidence of Allen. The trial was conducted on the basis that the jury would either accept the evidence of the complainant and her companions to the required degree or they would not. 52 Unlike BRS v The Queen this was not a case where the jury could have used any of the evidence as revealing a tendency or propensity on the part of the appellant against which they were to be warned. The evidence said nothing about the appellant's conduct on any other occasion than that with which the charges were concerned. Because the charges were part of a connected series of events, the jury were entitled to use the whole of the evidence as bearing upon the issue for their determination arising from both charges. The only way they were likely to use the evidence concerning what happened after the park incident as bearing upon their determination of the armed robbery count was on the issue of the credibility or reliability of the accounts given by the complainant and the two other girls. They were entitled to use the evidence in that way and there was nothing that his Honour needed to say about it in the circumstances of this particular case. 53 Some matters raised by Mr Golding as calling for directions were really matters for comment. For example, the trial judge may have commented on the fact that the state of mind of the complainant at the time of leaving the park might be different from that at the time of the sexual offence. But that matter did not have to be the subject of a direction of law. There is a clear distinction between what needs to be said by way of a direction or warning and what might be said in the trial judge's discretion by way of comment on facts. See Crampton v The Queen (2000) 206 CLR 161; R v Stewart at 317. The failure of a trial judge to give a direction or warning, even though not requested by defence counsel, might be fatal because of the risk of a miscarriage arising. But the failure to make a comment on a matter of fact will rarely give rise to a miscarriage of justice, especially if no request is made for such a comment. 54 Despite the fact that the trial judge had, when refusing the application for separate trials, indicated an intention to direct the jury about the relevance of the evidence to the different counts in the indictment, there was in my view no requirement that he did so in the circumstances of this particular case. No request was made for him to give any such directions and there is no possibility of a miscarriage of justice arising from his failure to do so. This ground should be rejected.

Ground C Failure to give directions concerning uncharged criminal acts. 55 Complaint is made that evidence was given of criminal acts committed by the appellant which were not subject to any criminal charge and that his Honour failed to direct the jury as to what they should make of that evidence. Specifically the ground relates to two discrete pieces of evidence; the first a reference to a supply of drugs by the appellant in one of the hotel rooms, and the second evidence that he was a participant in the demanding of money from Allen at the park. 56 The first piece of evidence was given in an unresponsive answer to the Crown. It was clear ultimately that the Crown was not relying upon the evidence and there was no charge against the appellant in respect of such an allegation. The evidence arose in respect of the allegation against Rahme of sexual intercourse with KB during the course of the complainant's evidence in chief as follows (the relevant portion is underlined):

Q. …on the second occasion, on the Thursday did something happen?

A. On Thursday night I was lying on the bed with [Rahme] and [BU] and [Rahme] asked me to suck his penis and he asked me to kiss [BU].

A. I sucked his penis and he had white powder all over it.

Q. Did he say something about that, that white powder?

A. All over his penis and then told us to suck it off.

Q. Sorry did you do that, that is suck the penis as you were told to do?

A. Yes. 57 Following this evidence no application was made for a discharge of the jury and no request was made for any direction in relation to the matter either at the time the evidence was given or later. There was a complaint made by defence counsel based upon an assertion, quite unfounded, that the Crown was in some way responsible for the evidence being given that the appellant placed drug on the penis of Rahme. The trial judge indicated that he might remind the jury that only Rahme was charged with the offence of supply but was concerned that it might draw attention to the evidence. Defence counsel concurred with this observation and did not ask that anything be said to the jury at that time. 58 In the context of the evidence and the issues before the jury, the evidence was of little consequence. In any event, the jury could have made no use of the evidence in relation to either of the two charges against the respondent and no direction was required in respect of it. 59 I have already referred to the fact that evidence was given of the discharge by the appellant of a weapon about the time that Rahme was alleged to have threatened Allen to obtain money from him. I have indicated my view that the evidence was admissible notwithstanding that no offence was charged relating to it. It was part of the events occurring at the park and was clearly relevant to the circumstances in which the girls left with the appellant and ultimately whether the complainant was consenting to sexual intercourse with the appellant. 60 The trial judge directed the jury that the Crown was not alleging that the appellant was guilty of the offence of demanding money from Allen and that the only charge based upon a joint criminal enterprise involving the three accused was the charge of robbery. That was all that was required in the circumstances of this case and nothing more was sought by the appellant's counsel. 61 This ground should be rejected.

Ground D Failure to discharge the jury 62 There were throughout the trial numerous applications for the discharge of the jury, each of which was adjudicated upon by the trial judge and in each case the application was dismissed. Each decision was the result of a discretionary judgment of the trial judge. This Court should only interfere with such a ruling if it is persuaded that the trial miscarried by the failure to discharge the jury notwithstanding the trial judge's advantageous position in determining the effect on the trial of the matter that gave rise to the application for a discharge. In effect this Court can only uphold such a ground of appeal if it is of the view that the only course open to the trial judge was to discharge the jury, or where, with the benefit of hindsight, it can be clearly established that a miscarriage of justice arose because the jury were not discharged; R v Ball (1960) 77 WN (NSW) 605 at 607; Domican (No 3) (1990) 46 A Crim R 428 at 448. 63 The ground as argued is that the jury should have been discharged on the 17th day of the trial after BK gave evidence that, when the three men returned to the motel room on one occasion, they said they were going to kill the girls. The evidence arose in an answer by BK when being cross-examined by the appellant's counsel about a phone call made by KB to a person asking to be picked up and which ultimately resulted in the police arriving at the motel room. In effect counsel was asking the witness to explain why she had not called this person or any other person at an earlier time, such as when she was in the shopping mall. BK said at that time she was high on drugs and had a "memory blank" about the person's telephone number. The cross-examination continued:

Q. And were you girls high on - who thought of the number [you] or [KB]?

Q. Were you high on drugs when you thought of the number?

A. Well I just woke up from a deep sleep and after they got back they said that they were going to kill us so it was urgent for me to call someone. 64 The application for a discharge of the jury that was made by each counsel was in extravagant terms and hardly likely to assist the trial judge in a dispassionate exercise of discretion. For example, one counsel appearing for a co-accused described this as an allegation of a conspiracy to murder being "the gravest crime known to the common law". Again the application was made in the context of what appears to me to have been totally unjustified criticisms of the Crown's lack of objectivity and fairness. 65 The trial judge determined not to discharge the jury, but he directed the jury that the answer was unresponsive and should be ignored. In my view it was within his Honour's discretion to refuse to discharge the jury in the circumstances of this case. 66 The defence to both charges was that the complainant and the other two girls were fabricating evidence about any threats of violence by the appellant and his co-accused either at the oval or over the next week in the various hotel rooms. The defence asserted that they were lying about these matters in order to exculpate themselves from having gone voluntarily with the three men and, in the case of KB, that she had indulged in consensual acts of intercourse with them. In light of the evidence given as to the conduct of the appellant and the other two men at the oval, involving as it did the production of firearms and the discharge of a weapon by the appellant, this allegation of some unspecified threat was not, in my view, likely to prejudice the appellant's fair trial. There is no reason to think that the jury might have been persuaded by that evidence either alone, or in the context of the other evidence before them, to give more weight to the allegations of the three girls about what happened at the oval. There is no reason to assume that the jury would not simply disregard it as being irrelevant to any issue before them as they were instructed to do so by the trial judge. There is no reasonable basis for fearing that the jury might have used it to the appellant's detriment. 67 I am not satisfied that the failure of his Honour to discharge the jury on any occasion resulted in a miscarriage of justice and the ground of appeal fails.

Ground E Cross-examination of Ms Hoy 68 It will be recalled that Ms Hoy was in the group that met Mr Allen and the three girls at Pennant Hills and went with them to Richie Benaud Oval prior to the arrival of the appellant and the other two men. In the first, and aborted trial, counsel for the appellant indicated that he would object to any evidence being called by the Crown that might suggest that the appellant had supplied drugs to Ms Hoy at the oval. Although the Crown did not intend to call Ms Hoy, it did propose to lead evidence of a phone call between Ms Hoy and the appellant overheard by the three girls, and of the apparent supply of some substance by the appellant to Ms Hoy witnessed by the girls at the oval. 69 Ultimately, as a result of a Crown concession and a ruling by the trial judge, the Crown was not permitted to lead any evidence of a telephone call by Ms Hoy to the appellant before they arrived at Richie Benaud Oval or any other evidence suggestive of the appellant supplying drugs to Ms Hoy. His Honour indicated that, if, and, when Ms Hoy was called in the defence case, he would rule on any question that then arose about such evidence. He did indicate, however, a view that the evidence might be unduly prejudicial under s 137 of the Evidence Act. 70 Although this Court was provided with twelve volumes of evidence and exhibits for the hearing of the appeal, there is no record of any formal ruling made by the trial judge. It may be that because it was a ruling against the Crown and in light of the extensive oral submissions, his Honour saw no reason to publish separate reasons. But from the transcript of the argument at the time of the ruling and later when the issue arose after Ms Hoy was called by the defence, it is reasonably clear that the ruling was concerned only with evidence being called in the Crown case. 71 In the appellant's case two witnesses were called. The first was a character witness. The second witness was Ms Hoy. Although she had been called in the prosecution case at committal proceedings, the Crown decided not to call her at the trial, apparently on the basis that she was an unreliable witness. After Ms Hoy's evidence a testimonial on the appellant's behalf was read to the jury. 72 In evidence in chief, Ms Hoy volunteered that on the way to the park she "called someone for drugs for Richo". She agreed with the appellant's counsel that at the park she met the person whom she had called and Richo brought some drugs from this person. She said that after that person left, the appellant and the other two men arrived. Ms Hoy's evidence was that she had called the appellant at some unspecified time and arranged to meet him at the park. She gave evidence that she never saw the appellant with a gun on that night, that no weapon was fired and that no person was robbed. She said that the three girls did not want to go home and so they went willingly with the appellant and his co-accused. 73 In cross-examination Ms Hoy told the Crown that she had known the appellant a few months and had seen him mainly when she was shopping at particular commercial complex in Castle Hill. He had been an acquaintance of a former boyfriend and a female friend. 74 When the Crown commenced to cross-examine the witness about her contact with the drug supplier for Richo, counsel for the appellant objected on the basis that the Crown was attempting to elicit the identity of the drug supplier in breach of the trial judge's earlier ruling. The Crown indicated that it wished to test Ms Hoy's version of events being that some other person was at the park before the appellant arrived, even though this was not a scenario upon which any of the Crown witnesses had been cross-examined. The Crown alleged that Ms Hoy's version was inconsistent with her statement to police and her evidence during committal proceedings. The Crown also wanted to investigate the witness's relationship with the appellant. 75 Defence counsel submitted that on the basis of his Honour's earlier ruling he had conducted his cross-examination of the Crown witnesses in a certain way. In my opinion that submission should have been rejected. If the defence were intending to call Ms Hoy and knew the version she was going to give in the witness box, counsel had an obligation to put those allegations to the Crown witnesses and his Honour's ruling in that regard was irrelevant. 76 In ruling against the Crown his Honour said:

Madam Crown I didn't choose the charges that these accused have been charged with, you did. The case has been conducted in a certain way because of that. I ruled earlier in a certain way and the case has been conducted on that basis since. I will not restrict you, Madam Crown, in relation to asking questions generally about this witness's general association with [the appellant] but I will not allow you to ask questions directly or indirectly leading to an inference that he was the supplier of drugs on this evening. Thank you. His Honour also indicated that the Crown could not suggest to the witness that it was the appellant who was there earlier in the evening before the arrival of the two co-accused. His Honour did, however, permit the Crown to question the witness about telephone records in relation to her mobile telephone. 77 From the material before the Court it appears that his Honour may have had an imperfect recollection of the earlier ruling he had made, which only concerned the Crown calling evidence tending to suggest that the appellant had supplied drugs to Ms Hoy at the oval. His Honour had left to one side what ruling he might make if Ms Hoy was called by the defence. That imperfect recollection was induced by what defence counsel said to His Honour when he first raised his concern about the cross-examination. What counsel said about the earlier ruling does not appear to be accurate. The trial judge could be excused for being so misled, as it was a difficult trial with numerous objections taken and applications made by defence counsel, few of which had any merit at all. Further, because there appears to have been no formal ruling, his Honour was having difficulty recalling what ruling he had made. 78 In my opinion the attitude taken by the Crown in relation to the stance of defence counsel was appropriate and in accordance with the earlier ruling or at least her understanding of it. His Honour's ruling at this stage in the trial was not required by his earlier ruling and was unduly restrictive of the Crown's right to cross-examine Ms Hoy. 79 When the witness was re-called, the Crown Prosecutor cross-examined her further about the arrangement to purchase drugs for Richo. Ms Hoy said that she contacted the person after she had met Allen and the three girls at Pennant Hills. The person whom she called said that he was at the MacDonald's Restaurant at North Parramatta. She made two calls to the person and arranged to meet him at the cemetery, which is next to the oval. She said the supplier was there by himself when she, Richo and the others arrived. Ms Hoy's evidence was that she telephoned the appellant just as the drug supplier left the cemetery after selling drugs to Richo. This was, she said, the first occasion that she had ever phoned the appellant and she did so because she was bored. 80 Ms Hoy was then cross-examined on telephone records relating to her mobile telephone. She accepted that the records revealed that she had phoned the appellant from the vicinity of Thomson's Corner, which is between Castle Hill and Pennant Hills, at 12.28am. She agreed that she had made five further calls to the appellant's mobile phone after she had arrived at the oval. 81 After the Crown tendered the phone records, counsel for the appellant again complained that the Crown might be trying to traverse his Honour's earlier ruling. The Crown Prosecutor denied that she was intending to suggest that it was the appellant who had supplied drugs to Ms Hoy for Richo. No such suggestion was ever made to the witness by the Crown when her cross-examination recommenced after an adjournment. The balance of the cross-examination continued without complaint by defence counsel and without touching upon the evidence concerning the identity of the drug supplier. 82 It should be noted that no formal objection was taken to the cross-examination or any part of it. Defence counsel simply raised concerns at the direction it might take having regard to the earlier ruling. His Honour was not asked to intervene other than as he did by reminding the Crown of the ruling that he believed he had made earlier. 83 The complaint before this Court is that his Honour ought to have intervened to stop the Crown cross-examining the witness in a manner from which, it was said, the jury would have understood that the Crown was alleging that the drug supplier at the oval was the appellant. It was submitted that the cross-examination of Ms Hoy was in breach of his Honour's ruling and that his Honour allowed it to continue because he failed to appreciate its significance. 84 In my opinion there is no merit in this ground of appeal. The Crown Prosecutor was entitled to cross-examine Ms Hoy in the way that she did. His Honour's ruling, as best this Court can understand it, was that the Crown could not introduce evidence in its case of the telephone conversation between Ms Hoy and the appellant as it was irrelevant, and, in so far as it might implicate the appellant in supplying drugs, was overly prejudicial. Although his Honour indicated that such evidence might be excluded, even if the defence called Ms Hoy, he appears to have made no such ruling. Nothing the Crown Prosecutor did was contravening any ruling made by his Honour. 85 In my view, it would have been unfair to the Crown to limit the cross-examination of Ms Hoy by such a ruling as the defence contended had been made by his Honour. The appellant had led evidence of good character. Ms Hoy was giving evidence on behalf of the appellant that was inconsistent with her prior statements and the unchallenged evidence of Crown witnesses. The Crown was entitled to test her version and, if that was to the extent of implicating the appellant as a drug supplier, so be it. 86 Ms Hoy was insisting that the person who supplied drugs to Richo was at the oval before the appellant arrived and such a suggestion was completely inconsistent with the evidence given by the Crown witnesses. Ms Hoy volunteered that she had phoned a drug supplier before she arrived at the oval. The evidence was that, contrary to her evidence in chief, she had phoned the appellant in the area of Thompson's Corner. That was the only call she had made at that time. In any event, the fact that as a result of her call to the appellant the three men arrived at the oval, it did not follow that it was the appellant who was a drug supplier. 87 The defence chose to call the witness and knew the Crown's attitude and the evidence available to the prosecutor. No ruling had been made upon which counsel for the appellant was entitled to rely in the conduct of the defence case. The Crown should have been free to investigate the true relationship between Ms Hoy and the appellant, whatever that relationship might have been. Ms Hoy had put herself forward as a person who knew the appellant only fleetingly, had never phoned him before that night and had met him only by chance, as it were, at a shopping mall. 88 In any event, I do not believe that any inference arose from the cross-examination that the Crown was alleging that the appellant was a drug supplier. The Crown was simply testing the evidence of the witness to show either that she was unreliable or that she was giving false evidence to support the appellant. The Crown was asserting that there was no person present at the oval when Ms Hoy arrived there. The relevance of the evidence that had been rejected in the Crown's case would not have been to prove that the appellant was a drug supplier but rather to discredit Ms Hoy's version of events. 89 In my opinion the appellant's trial counsel was unjustifiably trying to obtain a tactical advantage by relying on the earlier ruling so as to limit the Crown's attack upon Ms Hoy's credit. There was no misconduct by the Crown Prosecutor. Rather she was attempting to assert her right to cross-examine the witness as to her conflicting accounts and her credit. She was faced with intemperate, unfair, and misleading submissions made by defence counsel as to her purpose in the cross-examination of Ms Hoy and the consequence of his Honour's earlier ruling. The suggestion in the submissions in support of this ground that the prosecutor's conduct in persisting with her cross-examination of Ms Hoy was "grossly unfair and inappropriate" has no foundation. 90 Notwithstanding that there had been numerous applications for a discharge of the jury by defence counsel during the course of the trial, no application was made in respect of the conduct of the Crown in cross-examining Ms Hoy. It did not apparently occur to defence counsel, despite his repeated and unjustified allegations of misbehaviour by the Crown Prosecutor during the course of his submissions to the trial judge, that a miscarriage of justice had in fact occurred as a result of the cross-examination of Ms Hoy. Insofar as rule 4 applies, leave should be refused to rely upon this ground of appeal. 91 This ground should be rejected.

Ground F Miscarriage as a result of the conduct of the Crown 92 It should be apparent from what I have already written that any reliance placed upon the conduct of the Crown in relation to the cross-examination of Ms Hoy to support an attack on the conviction has no merit whatsoever. 93 Only one other matter was raised in support of this ground. The Crown in her closing address to the jury referred to the appellant as having made a demand upon Mr Allen for money. This was obviously an error and was inconsistent with what had been said to the jury throughout the evidence and said by the Prosecutor herself in another part of her address. The trial judge made it clear in the summing up that the charge of demanding money from Allen was only made against Rahme and not against the appellant. No objection was raised about the prosecutor's slip and the jury could have had no doubt about the true situation. 94 The ground should be rejected. No ground having been made good, the appeal against conviction should be dismissed.

Sentence 95 As has already been noted the appellant was sentenced on the first count in the indictment to imprisonment for 5 years and 4 months and a non-parole period of 4 years was specified. The only ground upon which it is alleged that his Honour erred was in his failure to find special circumstances and, thereby, reduce the non-parole period from the statutory ratio in s 44 of the Crimes (Sentencing) Procedure Act. 96 The appellant was born in Lebanon in December 1979 and came to Australia with his parents in 1982. At the time of the commission of the offence he was living with his family. His parents described him to an officer preparing a pre-sentence report as being "an exemplary son who does not drink or smoke, attends church every Sunday, has good friends and is quiet and loving". His employer found him to be his best employee who was honest, trustworthy and had a reliable work performance. The appellant had denied to the probation officer that he had any drug or alcohol problem. His only explanation for his involvement in the incident, giving rise to his conviction, was his association with his co-offenders. 97 The appellant had no prior convictions at the time of being sentenced by Acting Judge Stewart. He was 20 years and 8 months at the time of the commission of the offence. There were a number of testimonials from members of the appellant's community attesting to his good character, integrity, and the esteem in which he was held. 98 Both the Crown and counsel for the appellant filed written submissions on sentence. On behalf of the appellant his counsel conceded that a prison sentence was inevitable. However, his rehabilitation since the offence was stressed and it was submitted that the sentence should encourage that rehabilitation. In particular it was submitted that special circumstances existed justifying a reduction in the non-parole period arising from "[the] relative youth of the prisoner, the fact that this is the first period of imprisonment he has served and his excellent prospects of rehabilitation". His counsel submitted that a non-parole period of 12 months would be appropriate. These written submissions were amplified orally. 99 In sentencing the appellant, his Honour referred to the subjective matters relevant to the appellant. He specifically mentioned that he took into account the written submissions tendered on the appellant's behalf. 100 His Honour found that there was no contrition or remorse on the part of any of offenders and found that they were merely sorry for themselves. 101 During the course of his remarks his Honour did not mention the issue of special circumstances in relation to the appellant. However, he sentenced the three offenders at the one time in the one set of sentencing remarks and found special circumstances existed in Rahme's case by reason of the fact that his Honour was accumulating the sentences for the three offences of which he had been convicted. However, in the overall sentences imposed upon each of the offenders, his Honour maintained the statutory ratio between the head sentence and the non-parole period. 102 The sentencing judge initially sentenced the appellant to six years with a non-parole period of four years. However, due to the fact that he had to resentence Rahme, he also resentenced the appellant in order to achieve parity between the appellant and Rahme. When doing so he took into account that the appellant was the youngest of the three, had never been to gaol before, and had no criminal record. 103 The finding that there are, or are not, special circumstances is a discretionary finding of fact. The power of this Court to interfere with such a finding is very limited. In the circumstances of this case the fact that his Honour made no explicit finding in his remarks as to the question of special circumstances should not be taken as indicating a failure by his Honour to consider that issue; R v Simpson (2001) 53 NSWLR 704 at [87]. This is especially so because he made such a finding in Rahme's case and specifically referred to the written submissions filed on the appellant's behalf that were primarily concerned with that issue. 104 Further, when resentencing the appellant, his Honour referred to those matters that were, and are now, put forward as giving rise to special circumstances; they being the appellant's age, his prior good character, and that it was his first term of imprisonment. Mr Golding has conceded that these matters do not necessarily require that special circumstances be found. Unfortunately they are relatively unremarkable and have their principal effect in the determination of the head sentence; Simpson at [93]. 105 A finding of special circumstances is purposive in that it is a warrant for reducing the non-parole period below that arrived at by the statutory formula. While the considerations or the factors giving rise to special circumstances are not limited to the reform of the offender, that will often be the purpose in finding special circumstances. It is the only justification suggested in the present case for making such a finding. But the rehabilitation of the offender is not the sole or even principal consideration in fixing a non-parole period; Power v The Queen (1974) 131 CLR 623; Simpson at [59]. The other aspects of punishment such as deterrence and denunciation cannot be overlooked. 106 To a significant extent the rehabilitation of the appellant was well underway by the time he came to be sentenced. While the Court might encourage him further in this enterprise, there was no requirement that it should. The appellant was not motivated to commit his crime by an addiction to drugs or alcohol. There was no suggestion of any mental state that contributed to his criminal behaviour that needed treatment or control. His only explanation was the company he was keeping at the time and the evidence was that he had severed that relationship. He had strong family and community support that, it would be expected, will continue throughout his period of incarceration. There is nothing to suggest that a period of 16 months parole would be insufficient to assist the appellant readjust to life outside prison after four years of incarceration. 107 In my opinion there is no merit in the application for leave to appeal. No error can be shown. The sentence was in my view a relatively modest one having regard to the seriousness of the offence committed. In any event the non-parole period was the least period of imprisonment that could reflect those elements of punishment that arose from the nature of the offence committed. 108 I propose that the appeal against conviction be dismissed, leave to appeal against the severity of the sentence be granted but the appeal be dismissed. **********

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