R v Esho, R v Sako

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70205/98 LOWER COURT JUDICIAL Abadee J OFFICER :

J S Andrews - Appellant Esho COUNSEL : P Byrne - Appellant Sako LMB Lamprati - Crown Respondent Michie, Shehadie & Co - Appellant Esho SOLICITORS : George Sten & Co - Appellant Sako S E O'Connor - Crown Respondent CATCHWORDS : Criminal law - appeal against conviction and sentence - malicious infliction of grievous bodily harm under s 35 of the Crimes Act 1900 - affray - whether verdict under - s 35 unreasonable having regard to the acquittal under s 33 of the Crimes Act 1900 - whether directions inadequate - whether verdict unreasonable and not supported by the evidence - doctrine of joint criminal enterprise - malice - ss 38(1), 38 (2) and 192 (2) of the Evidence Act - reliability of admissions - identification - parity - whether sentence manifestly excessive. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 R v Richard Adam [1999] NSWCCA 189; 106 A Crim R 510 Gilbert Adam [1999] NSWCCA 197; 47 NSWLR 267 Osland v R [1998] HCA 75; 197 CLR 316 R v Jones (1997) 191 CLR 439 McKenzie v R (1996) 190 CLR 348 R v MacKenzie (1995) 82 A Crim R 473 R v Smith [1982] 1 NSWLR 1 R v Safwan (1986) 8 NSWLR 97 CASES CITED: R v Mowatt [1968] 1 QB 421; (1967) 51 Cr App R 402 R v Coleman (1990 19 NSWLR 476 R v Mraz (1955) 93 CLR 493 R v Stanoevski [2001] HCA 4; 75 ALJR 454 R v Fowler [2000] NSWCCA 142 M v R (1994) 181 CLR 487 R v Zoneff [2000] HCA 28; 112 A Crim R 114 R v Edwards (1999) 178 CLR 193; 68 A Crim R 349 Domican v R (1990) 173 CLR 555 R v De Simoni (1981) 147 CLR 383 DECISION : Esho - appeal against conviction dismissed, leave to appeal against sentence granted, appeal dismissed.; Sako - appeal against conviction dismissed, leave to appeal against sentence granted, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60667/00 60668/00

SPIGELMAN CJ SIMPSON J SMART AJ

REGINA v Edward ESHO REGINA v Thamir SAKO Judgment

2 SIMPSON J: On 17 May 2000 the appellants Edward Esho and Thamir Sako were indicted on a number of charges arising out of an incident that occurred at Fairfield, NSW, on 18 April 1997. During the course of the incident a police officer, Constable David Carty, was killed. The primary charge Esho faced was murder. In the alternative he was charged with maliciously inflicting grievous bodily harm with intent to do so (a charge laid under s 33 of the Crimes Act 1900). He was additionally charged with an offence of threatening unlawful violence towards another person by conduct that would cause a person of reasonable firmness present at the scene to fear for his safety. (This charge, laid under s 93C (1) of the Crimes Act, is shortly known as a charge of affray). By s 34 of the Crimes Act a jury which is satisfied that a person charged under s 33 is guilty of inflicting grievous bodily harm but is not satisfied beyond reasonable doubt that the person had the necessary intent, may acquit of that charge but convict of an alternative offence of malicious infliction of grievous bodily harm, an offence under s 35 of the Crimes Act. (The only distinction between the two offences is the presence, in the s 33 offence, of the express element of intent to do grievous bodily harm, and its absence in the s 35 offence.) 3 Sako was charged under s 33 with maliciously inflicting grievous bodily harm with intent to do so, and with affray. Three other men were charged with various offences arising out of the incident. 4 On 5 September 2000, after a four month trial, the jury returned its verdicts. The three other men were acquitted of all charges. Esho was acquitted of murder, acquitted of the charge under s 33, but convicted of its alternative under s 35, and was also convicted of the offence of affray. Sako was acquitted of the s 33 charge, and of affray, but was also convicted of the s 35 alternative. 5 For an offence against that section, s 35 prescribes a maximum penalty of imprisonment for seven years. S 93C(1) prescribes a maximum penalty of imprisonment for five years for an offence of affray. Abadee J sentenced Sako (who was convicted only of the s 35 charge) to imprisonment for five years with a non parole period of three years and nine months. On the s 35 conviction he sentenced Esho to imprisonment for six years and eight months with a non-parole period of five years; on the affray count he imposed a concurrent sentence of a fixed term of two years. 6 Both appellants appeal against their convictions and seek leave to appeal against the sentences imposed.

The Crown Case 7 The Crown case was that, during the early hours of the morning of 18 April 1997, Constable Carty, who had spent some time in the Cambridge Tavern at Fairfield after finishing duty, left the hotel and was set upon and attacked by a group of about ten or twelve young Assyrian men. He was fatally stabbed in the neck and fell to the ground. A number of the men then kicked and punched him and stomped on his head, chest and torso. 8 Earlier in the evening, while he was on duty and patrolling a Fairfield street, Constable Carty had cautioned Esho about his use of offensive language. Constable Simon Clark was present at this encounter. Esho was heard to shout, from the opposite side of the road "fucking pig". Constable Carty, in the presenc`e of Constable Clark, rebuked him. 9 Later in the evening, a number of police officers, including Constable Carty, gathered at the Cambridge Tavern. A large number of Assyrian men were seen in the car park, and walking in and out of the Tavern. Both Esho and Sako were among these men. Sako's brother, Thaier Sako, was another. Also present were two brothers called Gilbert and Richard Adam. 10 At about 2.15 am Constable Carty left the Tavern in company with Constables Michele Auld and Craig Spencer and walked to his car. He was confronted by Thaier Sako. Other Assyrian men were nearby. Thaier Sako pushed Constable Carty in the chest, causing him to step back. Constable Carty recovered his balance and pushed Thaier Sako in a similar fashion. A scuffle broke out involving Constable Carty, Thaier Sako, Esho and Gilbert Adam. One of the Assyrian men produced and used a knife, as a result of which Thaier Sako was stabbed and injured. He bled copiously and this caused some of the other men, including Esho, to believe (wrongly) that he had been fatally injured. As a result, a number of men who had been in the hotel joined the group in the car park and joined the attack on Constable Carty. During this time Constable Carty was stabbed in the heart. This wound was fatal. He fell to the ground. While he was on the ground, a number of the men present punched him, kicked him, and stomped on his head, chest and other parts of his body. Esho, Gilbert Adam and another eight or ten men participated in this part of the occurrence.

The evidence 11 Constable Michele Auld had been among the off duty police officers in the Cambridge Tavern with Constable Carty. She, Constable Spencer, and Constable Carty left together at between 2.00 and 2.15 am and walked to their respective cars which were parked in different parts of the car park. Constable Auld was sitting in the driver's seat of her car and saw a man of Arabic appearance (Thaier Sako) approach Constable Carty who was near the door of his car. She saw an encounter between the two men but did not hear any conversation. She then saw about eight or ten young men of Arabic appearance join the first, and stand around Constable Carty in a semi-circle. These included Esho and Gilbert Adam. The conversation increased in volume, and was accompanied by hand gestures, but she still could not hear any words. She saw an Arabic man (Thaier Sako) push Constable Carty in the chest, and saw Constable Carty fall back, and then push Thaier Sako. She saw a look of horror on Constable Carty's face, and a large amount of blood spurting from the region of his chest. She realised that the incident was serious and ran to the bar where she made a telephone call seeking police assistance. She returned to the car park. Constable Carty was lying on his back on the ground. The men, including Thaier Sako were kicking at various parts of his body. Constable Carty's body was moving. Some of the men began to punch various parts of his body with closed fists. Constable Auld attempted to push the men away. One of them punched her on the right cheek. She continued her attempts to push the men away and was hit again, on the side of her head. By this time Constable Carty's body was moving only when kicked or punched. 12 Trevor Davies was a bakery worker who had gone, with a friend, to the Tavern at about 11.30 pm. He was aware of a group of police officers sitting behind him. A group of men of Middle Eastern appearance entered the bar and, after being spoken to by the barman, left. One of them returned to the bar and made a number of gestures, including a throat slashing gesture, and a tugging gesture with clenched hands held together. He appeared aggressive. 13 Mr Davies later became aware of the disturbance outside and watched it from a window. He said he saw "a group of men beating up on one man". There were about six or seven in the group. They were kicking and punching the other man. The one man remained standing for about two minutes and then fell. Once he had fallen Mr Davies could not see him, but said that the men "appeared to be jumping on whatever was there". He described the manner of jumping as "stomping". He saw another man (Thaier Sako) being half dragged and half carried to the entrance of one of the hotel bars. The men who had been kicking and stomping on Constable Carty continued to do so for approximately four minutes. They then began to move away, but one turned back and continued the stomping action. Initially, he was restrained by others in the group, but succeeded in returning to where Constable Carty was lying and continued with the stomping action. Mr Davies described this man's manner of stomping as "aggressive". 14 Michael Batterham was a work colleague of Mr Davies and accompanied him to the Cambridge Tavern. He saw about fifteen or twenty men of Middle Eastern appearance enter the public bar where he and Mr Davies were, and pass into an adjoining bar, the Casino Bar. About fifteen or twenty minutes later his attention was attracted by two men in the parking lot near a small white car. He saw a man lunge towards another, and then another man behind him (the man who lunged). The first man fell down and the third man seemed to be stomping on the man on the ground. A few seconds later the men were joined by about five or six others. Mr Batterham heard one of the men call out "I'll kill the bastard" or words to that effect. 15 Tony Bakos was sixteen years of age in 1997. He was called to give evidence in the Crown case but his evidence quickly proved to be unfavourable to the Crown, and inconsistent with statements he had previously made. The trial judge was satisfied that he was not making a genuine attempt to give evidence on matters of which he may reasonably have been supposed to have knowledge and, accordingly, on the application of the Crown Prosecutor, the trial judge granted leave to question him as though cross-examining. (The grant of leave is the subject of one of the grounds of appeal.) 16 The account of the events that was attributed to Bakos was derived essentially from an interview he gave to police on 9 June 1997. He participated in this interview at his own request. He had participated in two earlier interviews (9 and 28 May). According to what he said in June 1997, it was he who had initiated the contact with police and he did this because he wished to provide further information about the events of 18 April. The transcript of the interview of 9 June records him as saying, inter alia: "When it started, like Gibby [this was a reference to Gilbert Adam] started jumpin' like punchin' in like the copper, he was punchin' him and like Thaier Terry went in to … there and like he just comes out not even, I'd done a, seconds, just comes out like holding his neck you know like he was just going, ah, screaming. Then after the, the policeman dropped, when he was dropped, dropped to Gibby was the like the lady, the lady copper, she was screaming. He just turned around and just went like, in her face. She just --- … like, she, he just kicked in her face, you know, and knocked her out on the ground." 17 During the last interview, Bakos told police that Esho had asked Constable Carty: "Why you tell me to shut up?"

referring to the earlier encounter at Fairfield. 18 Dennis Oshana was, in 1997, a friend of both appellants. He had been in Fairfield during the encounter between Constable Carty and Esho earlier in the evening, and was also at the Cambridge Tavern. He observed the two men in the car park arguing. He saw a number of people, some of whom he knew, near where Constable Carty was standing. He gave some evidence of what then occurred. When asked if he saw some movement of feet around Constable Carty he replied "sort of", and described the movement as "jumping around kind of thing". When asked if anybody was making contact with Constable Carty he said "probably", and gave a similar answer when asked if the "jumping" was "kicking". 19 After Oshana gave some more evidence, the Crown Prosecutor applied, under s 38 of the Evidence Act 1975, for leave to question him as though cross-examining. Leave was granted on the basis that his evidence was unfavourable to the Crown and that he had made a prior inconsistent statement (s 38(1)(a) and (c)). The remainder of Oshana's evidence was given from a statement he had made to police on 23 January 1998. Included in that statement were the following passages: "I could see people were kicking the policeman, but I can't tell which one of these people were kicking the policeman. There was legs going everywhere and they were moving around the policeman." "I remember that Eddy [Esho] was screaming and swearing at the policeman and he'd looked like he lost it." "Eddie was the one who kept saying 'He killed my brother, he killed my brother'. He also said 'He killed Thaier'." 20 Oshana was then cross-examined about evidence he had given in committal proceedings on 28 January 1998 and 27 October 1998. On that occasion he said that he had seen Constable Carty lying on the ground shaking, and that people were kicking him with "a lot of force". He had then described what Michele Auld was doing, and said that the kicking continued. He again described the men encircling Constable Carty and kicking him with force. 21 Medical evidence of the injuries sustained by Constable Carty was given by Dr Peter Ellis, the Director of Forensic Medicine at Westmead Hospital. Apart from the stab wound to the chest which he identified as the direct cause of death, Dr Ellis described wounds, abrasions, lacerations and bruises to Constable Carty's body. Among other injuries he described an incised wound at the front of the head which could have been caused by a sharp edged object; bruising to the top of the head consistent with having been caused by kicking: an incised wound above the eyebrow caused by a sharp object such as a knife; curved abrasion on the left side of the head; bruising and an abrasion above the left ear, described by the doctor as a combination of various forms of blunt trauma consistent with having been caused by a circular object such as a beer bottle, applied with significant force; further abrasions in the same area, caused by blunt trauma, consistent with kicking or possibly punching; an incised wound to the left of the face, caused by a sharp edged probably straight object that had the effect of cutting off part of the earlobe; two further incised wounds to the left ear, again consistent with having been caused by a sharp edged object which may have been a knife or a piece of glass or similar; bruising and abrasion on the left cheek; a fairly deep incised wound to the left side of the nose, causing the nose to be cut through, and penetrating to the mid part of the nose, again caused by a sharp object such as a sharp blade of a knife, or broken glass; a number of small abrasions around the left eye, caused by blunt trauma consistent with kicking or punching; an abrasion above the right ear caused by the application of blunt force sufficient to tear the skin; a similar injury to the right cheek; a "scalping" wound to the back of the head, removing the surface of the skin and a tear, possibly caused by a sharp machete; and a shallow wound at the top of the back, possibly caused by a knife or broken glass, or sharp edged machete. 22 Scientific evidence established that items of clothing worn by both appellants contained blood, the DNA of which was consistent with that of Constable Carty. Shoes and socks work by both appellants bore blood that was, or could have been, that of Constable Carty. 23 Both appellants were interviewed by police on 18 April 1997. Esho was further interviewed on 11 November. Each interview was electronically recorded. In the earlier interview Esho denied having been outside the Tavern, and denied having seen any incident in the carpark. 24 In addition to participating in the interview, Sako took part with police in a "walk around" of the Tavern on the same day. This was video-recorded. He denied any involvement in the events in the carpark. 25 Esho gave evidence in the trial. He acknowledged that his answers to police in the interview (saying he had not been present outside the Tavern, and had not observed any incident) were untrue, but said that he had given untrue answers because of fear of possible retaliation by the Adam brothers. 26 Sako did not give evidence in the trial. One medical witness (Dr Collins) called on behalf of another co-accused, when cross-examined by Sako's counsel, said that had Sako been involved in kicking Constable Carty, he would have expected to see more blood than was shown to have been present on his shoes.

27 The argument in this court proceeded on the basis that there had been two distinct phases in the altercation, the first beginning with the confrontation between Constable Carty and Thaier Sako, with some other men in the near vicinity, looking on and subsequently becoming involved. It was during this "phase" that the fatal stab wound was inflicted on Constable Carty, although it did not cause immediate death. What was referred to as "the second phase" began at about the time Thaier Sako was seen to have been stabbed, at which time other men joined the group in the car park. This phase involved the kicking and punching and stomping on Constable Carty, at a time when he had already been stabbed and fatally injured. 28 In a trial that took place in 1998, both Richard and Gilbert Adam were charged with Constable Carty's murder. Gilbert Adam was convicted of that offence; Richard Adam was acquitted of murder and of manslaughter, but found guilty of maliciously inflicting grievous bodily harm. An appeal to this court by Richard Adam was successful and the conviction set aside: R v Richard Adam [1999] NSWCCA 189; 106 A Crim R 510. An appeal by Gilbert Adam against his conviction was dismissed: R v Gilbert Adam [1999] NSWCCA 197; 47 NSWLR 267. He was granted special leave to appeal to the High Court. The appeal was heard and judgment reserved on 3 April 2001. At the time of writing judgment remained reserved. • • •

29 As finally pleaded and argued the grounds of appeal against conviction were framed as follows:

"1 His Honour erred in granting leave to cross-examine Tony Bakos.

2 The verdict of the jury on the alternative count of maliciously inflict grievous harm is unreasonable having regard to the appellant's acquittal on the charge of maliciously inflict grievous bodily harm with intent.

2A The directions given by the learned trial judge to the jury on the elements of the alternative charge under s 35 of the Crimes Act 1900 were inadequate in that those directions. (i) Failed adequately to explain to the jury the meaning of the term 'maliciously' for the purpose of the charge. (ii) Failed to direct the jury on the nature of the intent which the Crown had to establish in order to prove the mental element of the offence. (iii) Failed to explain to the jury how the Crown sought to establish its case on the alternative case.

3 The verdict of the jury is unreasonable and cannot be supported by the evidence. Sako

1. The verdict of guilty on the alternative count of maliciously inflicting grievous bodily harm (s 35 Crimes Act 1900 is unreasonable having regard to the appellant's acquittal on the charge of maliciously inflicting grievous bodily harm with intent (s 33 Crimes Act 1900) and to his acquittal on the charge of affray.

1A The directions given by the learned trial judge to the jury on the elements of the alternative charge under s 35 of the Crimes Act 1900 were inadequate in that those directions. (i) Failed adequately to explain to the jury the meaning of the term 'maliciously' for the purpose of the charge. (ii) Failed to direct the jury on the nature of the intent which the Crown had to establish in order to prove the mental element of the offence. (iii) Failed to explain to the jury how the Crown sought to establish its case on the alternative case.

2. The learned trial judge erred in admitting into evidence the whole of the video recorded interview (ERISP) conducted between the appellant and Detective Inspector David Cushway on 18 April 1997 and the whole of a video recorded interview in which the appellant and the investigating police conducted a 'walkaround' at the crime scene on the same day.

3. The directions given by the learned trial judge on the evidence of identification of the appellant were inadequate." • • •

30 It is unnecessary to say any more about the charge of murder which Esho faced, and, which resulted in an acquittal.

Ground 2 (Esho); Ground 1 (Sako): unreasonable conduct

31 It is convenient to deal first with the ground of appeal, asserted by both appellants, that challenges the reasonableness of the verdicts of guilty under s 35. In each case, the submissions advanced are the same: essentially, the argument was that, the jury having not been satisfied beyond reasonable doubt of the elements of the primary charge, it could not reasonably have been satisfied beyond reasonable doubt of the elements of the alternative. 32 S 33 is relevantly in the following terms: "Whosoever maliciously by any means wounds or inflicts grievous bodily harm upon any person, … with intent in any such case to do grievous bodily harm to any person, … shall be liable to imprisonment for twenty-five years. " 33 S 35, the statutory alternative, is relevantly in the following terms: "Whosoever maliciously by any means: (a) …; (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for seven years." 34 The sole distinction between the two offences is the presence (in s 33) and the absence (in s 35) of the element of intention to cause grievous bodily harm. 35 One complicating factor, in considering the way in which the argument was put, is that the Crown case against the appellants invoked the doctrine of joint criminal enterprise. It will be necessary to consider this circumstance below. The force of the argument can best be assessed by the examination of two categories of evidence. The first category is the evidence of eye witnesses to the attack on Constable Carty. The attack itself, including both phases, occupied a very short time and was over in a few minutes. The second relevant category of evidence is medical evidence detailing the injuries Constable Carty sustained. 36 In relation to the charges under s 33 the Crown presented its case on two alternative bases. Firstly, it asserted that each appellant, by his own acts, committed the offence of maliciously inflicting grievous bodily harm with intent to do so. Alternatively, it asserted that each appellant participated with others in an attack upon Constable Carty, and was liable for the injuries he suffered in accordance with the principles of joint criminal enterprise. 37 In order to succeed on the primary basis, it was necessary for the Crown to establish, inter alia, that the appellants (or either of them) had the necessary intent. In order to succeed on the alternative basis, it was necessary for the Crown to prove that the appellants were (or either of them was) present at the scene with the person or persons who committed the acts alleged to constitute the crime; were (or was) there by reason of a pre-concert or agreement with that person or those persons; and that the acts of the other participants constituting the crime were within the contemplation of the appellants, or within the scope of the agreement: see Osland v R [1998] HCA 75; 197 CLR 316, per McHugh J at [72]. 38 The further alternative, expressly provided for by s 34 of the Crimes Act, was the s 35 offence of maliciously inflicting grievous bodily harm, but without the element of express intent. It was, in fact, on this alternative that both appellants were convicted. It is a perceived anomaly in these verdicts, when regard is had to the evidence adduced, that gives rise to the principal ground of appeal. The argument advanced on behalf of the appellants was that, in the light of the evidence to which I have referred, a jury could not reasonably have accepted beyond reasonable doubt that the appellants were guilty, in either of the postulated ways, (ie as principals or accessories) of the malicious infliction of grievous bodily harm without that infliction being accompanied by the necessary intention or contemplation. In other words, rejection of the Crown case on the issue of specific intent carried the necessary corollary of rejection of the Crown case as to the physical acts attributable to the appellants. 39 Put shortly, the argument advanced on behalf of the appellants was that, having regard to the evidence adduced on behalf of the Crown, it was not open to the jury to be satisfied of all elements except that of the relevant intention. That is because, once the jury was satisfied beyond reasonable doubt that the appellants were responsible for the physical acts that constituted the offence (under s 35), those acts could not be seen as having been done other than with an intention to do grievous bodily harm. The guilty verdicts must, on this argument, have been irrational. 40 The argument was, in effect a variation, or an adaptation of the reasoning of the High court in R v Jones (1997) 191 CLR 439; that, if the jury had a reasonable doubt about the intention of the appellants (and it obviously did) then that doubt must (or ought) to have extended, or been translated, to the evidence of the physical acts attributed by the Crown to the appellants. 41 In support of their argument, the appellants referred to the manner in which the Crown was said to have argued its case, describing this as "almost apologetic". Counsel for the appellants relied upon a passage in the summing-up in which his Honour referred to the argument of the Crown put in support of the alternative charge in the following terms: "The Crown put its case in respect of the alternative as follows: 'Somebody might think "well we will hurt him a bit" but he is actually caused grievous bodily harm. Then that person, if you were really satisfied he wanted to hurt him but not to hurt him really seriously, would be guilty of the offence of maliciously inflicting grievous bodily harm.' And the Crown submitted to you that it can be reached by either of the two alternative routes: 'Either you do it yourself or, alternatively, you were there as part of an agreement to do it, ready to assist, encourage and the like, but you were not actually kicking or throwing a punch or anything like that, but that you are ready to help if need be; one of those things.' The Crown submitted to you that the charge only has to be considered in respect of each accused if you do not convict that accused of the more serious charge of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm, remembering that that offence which I have just mentioned, in the case of Mr Esho, is an alternative to the charge of murder. The Crown submitted to you that it has, at the very least, made out the alternative of maliciously inflict grievous bodily harm for the reasons advanced in its argument and it submits that in respect of each of the accused, at the very least, if you are not satisfied in the case of Mr Esho of the offence of murder, and in the case of Mr Esho that he had maliciously inflicted grievous bodily harm with intent to cause grievous bodily harm, and in the case of all the four others that they were guilty of that offence of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm, at the very least the Crown has proved the alternative of maliciously inflicting grievous bodily harm." 42 I detect nothing "apologetic" or "almost apologetic" in the way in which the trial judge summarised the Crown case on the s 35 alternative. It seems that the submission arises from the relative brevity of the passage in a lengthy summing-up. From that, it was submitted , it could be seen that the s 35 alternative "did not loom large in the trial proceedings". The submission is not, in my opinion, supported by reference to the transcript of the final address of the Crown Prosecutor. Although his remarks to the jury were also succinct, they are sufficiently comprehensive and certainly not "apologetic". 43 The circumstances are not dissimilar to those that arose in McKenzie v R (1996) 190 CLR 348. There the appellant was charged with two counts of committing perjury intending to procure the acquittal of his client who was on trial for a serious offence. Alternative charges of perjury, but without the specific element of intention to procure the desired result, were left to the jury. In each case the jury acquitted on the primary charges and convicted on the alternatives. The only distinction between the primary and alternative charges was the element of intention (to procure a specific result). On appeal to this court, an argument was advanced that ran directly parallel with the argument here put on behalf of the appellants: that is, that the rejection of the Crown case on intent (inherent in the acquittal on the primary charge) necessarily entailed rejection of the Crown case on the alternative charges. In that case, that was because (so it was said) it was impossible to envisage a reason for committing the alleged perjury other than to secure an acquittal. This court rejected the argument, referring to the particular circumstances of the case and holding that: "It was not inherently unreasonable for the jury to find against the appellant under [the lesser charge] but at least to give him the benefit of the doubt under [the primary charge]." ( R v MacKenzie (1995) 82 A Crim R 473, per Gleeson CJ Mahoney JA and Studdert J) 44 In the High Court the argument was repeated and was treated as an argument about "inconsistency": the majority (Gaudron, Gummow and Kirby JJ) paraphrased that as meaning "repugnant", or "illogical". 45 Their Honours set out a number of applicable principles, of which the fifth was: "Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duties. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'" (internal references omitted) 46 It is to the mast constituted by "an affront to logic and common sense" that the appellants must attach their argument. But I am unable to accept that the verdicts in this case were an affront to logic and common sense. In McKenzie the High Court examined a variety of potential explanations for the differentiation in the verdicts which the jury returned in that case. They held that the verdicts did not come within any category that would have resulted in the entry of verdicts of acquittal. In this case, a similar exercise produces a similar result. The evidence was lengthy. The trial ran over approximately four months. A large number of witnesses gave evidence. Some of them proved either unfavourable to the Crown, or gave evidence inconsistent with previous statements they had made, resulting in the Crown being granted leave to cross-examine. On any analysis of the evidence, the events that resulted in the death of Constable Carty took place over a very short time, but were intense, extremely violent, and confused. The most rational explanation for the verdicts is that all members of the jury were satisfied beyond reasonable doubt that each appellant had engaged in the conduct attributed to him, or had participated in such a way as to make him criminally liable, but, having regard to the speed and ferocity of the melee, did not find themselves satisfied that either appellant had formed the necessary specific intent, or (in relation to the joint enterprise aspect) had the necessary contemplation of intent in others to injure. 47 In McKenzie, the High Court considered as significant a direction given by the judge that it was open to the jury to find the appellant not guilty of the more serious charges but guilty of the less. So it is in the present case. The very fact that the alternative was left to the jury (without protest from either appellant's legal representative), demonstrates that the alternative was, at the time of the trial, perceived as available. It is expressly made so by statute. However, no submission was made at the trial (unsurprisingly) that the statutory alternative did not represent a real alternative on the facts of the case. This was quintessentially a tactical move on the part of the appellants' legal advisers. It would have taken a courageous counsel to urge upon the jury that only conviction on the more serious offence was rationally possible on the evidence. Further, the High Court in McKenzie referred to the directions concerning the heavy onus which lies on the Crown to prove every element in the offence charged, including, in that case, intention. So it is in the present case. The jury having been given a similar direction, it was open to it to reject the Crown case on specific intent, but accept its case on the actus reus. 48 Although the High Court upheld the McKenzie appeal on another ground, it rejected the ground based on asserted "inconsistency". I would take the same course in the present case. 49 Senior counsel for Sako approached the same point from a different direction. In this instance he placed reliance upon the word "maliciously" as it appears in both s 33 and s 35. In order for the appellants to be convicted under either section it was necessary for the Crown to prove that they acted maliciously. 50 In s 5 of the Crimes Act 1900 "maliciously" is defined as follows: "Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." 51 Senior counsel cited R v Smith [1982] 1 NSWLR 1 and R v Safwan (1986) 8 NSWLR 97 as authority for the proposition that, in the case of an offence under s 33, the requirement of malice "adds nothing and is effectively superfluous". I do not accept that these cases stand as authority for that proposition. Smith involved a charge of maliciously attempting to discharge a loaded firearm with intent to do grievous bodily harm, a charge which also falls within s 33 of the Crimes Act. This court (Street CJ, Reynolds JA and Maxwell J) rejected an argument that directions given to the jury on the ingredient of "maliciously", together with directions on the requisite specific intent, were confusing. The court declined to follow English authority (R v Mowatt [1968] 1 QB 421; (1967) 51 Cr App R 402) because of differences in the statutory terminology under consideration. Later, in Safwan, Street CJ rejected a further proposition to similar effect but noted that there may be some overlap between directions on intent and those on "maliciously". In such cases, his Honour considered, there was no reason why a brief direction to that effect should not be given. He did not, however, describe the requirement of malice as "superfluous", and nor did he conclude that no direction on the meaning of "maliciously" should be given. 52 However, the argument proceeded. Senior counsel asserted that, on an analysis of the jury verdict of acquittal on the s 33 charge, it could only be concluded that, either the jury were not satisfied that the appellant did the acts charged against him; or, if they were satisfied that he did those acts, they were not satisfied that he did so with the necessary intent. If the former, then obviously he could not be convicted under s 35; if the latter, the jury could not properly have been satisfied of the element of "maliciously". 53 As I perceive this argument, it depends upon a false premise. The false premise is that "maliciously" precisely equates with "with intent to cause grievous bodily harm". A cursory reading of s 5 disposes of the false premise, and the argument based upon it. In order to prove malice it is sufficient for the Crown to prove indifference to human life or suffering, or intent to injure (which might fall short of grievous bodily harm), or recklessness or wantonness. I would reject these grounds of appeal.

Ground 2A (Esho); Ground 1A (Sako): Directions on s 35 alternative 54 Associated with the ground of appeal just considered, and added during the course of the appeal, was the ground numbered 2A in Esho's grounds and 1A in Sako's grounds. The ground is framed in each case in identical terms and challenges the directions given by the trial judge on the elements of the s 35 alternative. 55 While the elements of "maliciously" and "with intent to cause grievous bodily harm" are not co-extensive, it is, in my opinion, correct to say that proof of an intention to cause grievous bodily harm necessarily encompasses proof of malice. The reverse is not the case. Proof of malice, within s 5, is not necessarily proof of an intention to cause grievous bodily harm. Thus, had the appellants been convicted under s 33, the adequacy of the directions on malice would be immaterial. 56 However, the appellants having been acquitted on the charge that required proof of specific intent, the element of malice acquired real significance in relation to the alternative charge. There is no point in the extensive summing-up in which any of the alternatives contained in s 5 were explained to the jury. 57 Criticism has been made of the statutory formulation: see, eg, R v Coleman (1990) 19 NSWLR 476. The definition is in part circular: see R v Mraz (1955) 93 CLR 493. An adequate direction to the jury on the meaning of "maliciously" may be complex. 58 The only reference in the summing-up to the meaning of the word "maliciously" appeared when the trial judge set out the first alternative way in which the Crown sought to prove the primary charge (s 33). His Honour told the jury that it was necessary for the Crown to prove three elements, the second of which he identified in this way: "That the accused did so maliciously, 'maliciously' here meaning, in the circumstances of this case, that he intended, notwithstanding the effects of alcohol upon him, to cause some physical harm to David Carty, and he had no lawful cause or excuse for doing so." 59 The trial judge gave the jury written directions setting out the elements of each of the offences charged against each of the accused. Under the heading "Alternative I" (the s 33 count) the written directions set out the three essential elements in the following terms: "(1) that the accused inflicted grievous bodily harm on David Carty; (2) that the accused did so maliciously; and (3) that the accused did so with the intent of causing David Carty grievous bodily harm." 60 Under the heading "Alternative II" (this referred to accessorial liability), seven elements were identified, including: "(1) that one or more persons inflicted grievous bodily harm on David Carty; (2) that that person or those persons did so maliciously:" 61 He took a similar approach in relation to the statutory alternative (the s 35 count). "Alternative I" specified two essential elements, in the same terms as previously stated; and under the heading " Alternative II "five elements were set out, again these being in the same terms as the first two elements of alternative II under the primary count. 62 No explanation of the word "maliciously" appears in the written directions. Nor was any explanation of that component of the s 35 case put to the jury when the relatively brief explanation of that alternative was given. 63 Whether this direction was inadequate can be measured only by reference to what was alleged against each of the appellants. Here it is necessary to remember that, in relation to each appellant, the Crown put its case in two alternative ways, the first being that each appellant himself inflicted grievous bodily harm upon Constable Carty, the second being that each joined (expressly or by implication) an understanding or arrangement amounting to an agreement with another or others to assault Constable Carty and, knowing that Constable Carty was being or was to be assaulted, assisted or encouraged that other person or those other persons, either by his own actions or words or by displaying a readiness to give aid if required, and intending to provide that assistance or encouragement or to display that readiness to give aid if required. (The terminology in the last sentence is drawn directly from the third, fourth and fifth elements set out in the written directions given to the jury.) 64 There is no way of knowing whether the jury convicted either appellant of having directly inflicted grievous bodily harm, or did so by the application of the principles of accessorial liability. 65 If it be assumed that each (or either) appellant was convicted because the jury found that he directly inflicted blows upon Constable Carty, then the absence of a more comprehensive direction on malice could hardly be said to have cost him the chance of an acquittal. If the jury found either appellant guilty of the conduct that caused grievous bodily harm to Constable Carty, then it must have followed that those injuries were caused maliciously, within the s 5 definition. No question of, for example, accident, negating malice, was litigated. Indeed, it may be said that the appellant's earlier argument, put as inconsistency, can be turned upon them. Once it was accepted by the jury that either appellant engaged in the kind of attack that was described, at least one of the alternatives set out in the definition of "maliciously" must have been proved. Accordingly, a more comprehensive direction could not have brought about a more favourable result. 66 It is necessary then to consider whether the same result emerges from a conviction based upon accessorial liability. Again, once consideration is given to the nature of the attack upon Constable Carty, a detailed explanation of the concept of malice could not have altered the result. If either appellant was guilty by reason of his participation in a joint criminal enterprise, a rational jury could not have concluded other than that the injuries were inflicted maliciously. A more expansive direction would not, in my opinion, have altered the result in either case. 67 Accordingly, while, for myself, I would have considered that a specific direction on the concept of malice was called for, I perceive no miscarriage of justice as a result of its absence. 68 I would reject these grounds of appeal. 69 The remaining grounds of appeal are raised in relation to one or other of the appellants but not both.

Ground 1: cross-examination of Bakos 70 In his ground numbered 1, Esho complains of the grant of leave to the Crown to cross-examine Bakos. 71 S38(1) of the Evidence Act provides: "(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement 72 By s 38(6) the matters the court is required to take into account in considering an application for leave to cross-examine include:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. 73 Further, s 192(2) requires the court in considering the grant of leave, to take into account, in addition to any other relevant matters: "(a) the extent to which granting the leave sought would be likely to add unduly to or to shorten the length of the hearing; and

(b) the extent to which [to grant leave] would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave is sought; and

(e) the power (if any) of the court to adjourn the hearing or make another order or give a direction in relation to the evidence." 74 What happened in this case, as far as I can discern from the transcript, is the following. Bakos was called on 6 June 2000, the fourteenth day of the trial. He gave evidence-in-chief, the transcript of which covers about eight and a half pages. Included in the evidence he gave to this point was evidence that, at the Cambridge Tavern, at a point earlier than the altercation in the car park, he had seen Gilbert Adam jump over the bar. A pocket knife fell to the ground, which Adam quickly retrieved and replaced in his pocket. 75 Notwithstanding this evidence, the answers Bakos gave to the Crown Prosecutor's questions were heavily peppered with "I don't know" and "I don't remember". 76 Plainly, the Crown had anticipated this kind of response, because it had given notice of its intention to seek leave under s 38 to question Bakos as though cross-examining him. As a result, no objection was taken on the ground of inadequate notice, and no ground of appeal so based is taken. The challenge to the grant of leave is directed to the manner in which the discretion was exercised. It is therefore necessary to examine more closely the events that preceded the application. 77 The Crown Prosecutor told the judge that he had an application to make in the absence of the jury, and the jury retired. In Bakos' absence, the following exchange took place: "His Honour: Unfavourable, inconsistent. Both or either? Crown Prosecutor: Both, and claiming not to remember. His Honour: Interspersed with claiming not to remember. I have had the opportunity of seeing and hearing him. Anyone going to oppose the s 38 application?" 78 Counsel for Esho did object. He articulated his objection in the following way: "I oppose it, I have this difficulty with it. In the ordinary course of events an accused person knows and is entitled to know the evidence that is going to be led … I think it is fair to say that the Crown, having conferred with this witness this morning was, if not beforehand, certainly this morning, well on notice of this witness's likely behaviour. But the difficulty that I have is this: I am aware of this witness having given some account of what he saw and heard on seven or eight occasions, including the Adam trial where he gave evidence over a period of four days, the committal was two days, he has been interviewed by way of ERISP on three separate occasions. … This witness has given so many different accounts, inconsistent in so many areas. He has denied the accuracy of the transcription of several of the ERISPs." 79 His Honour then asked if, in considering the exercise of his discretion, he was entitled to take into account his observations of the witness and was told (by counsel for Esho) that he was not only entitled, but bound, to do so. His Honour said that he had taken that into account and indicated that he was not favourably disposed towards the objection. Counsel said: "I am not suggesting your Honour would find other than that he is unfavourable." 80 His Honour said: "That is all I have to do at this moment in time for the purpose of granting leave to the Crown to cross-examine. That is all I have to do at this moment in history, and there is no other basis for excluding it Mr Pullinger." 81 Counsel repeated that his difficulty was in knowing what evidence the Crown proposed to lead from Bakos: "Which one or which significant part of any one of the six or seven various varieties is the Crown going to randomly select?" 82 The judge then invited the Crown Prosecutor to clarify that position. The Crown Prosecutor said: "This witness has, on every occasion, nominated my friend's client, the accused Edward Esho, as one of three men who were attacking David Carty, that he saw attacking David Carty over near the utility where he was. There may have been differences in degree, but on each occasion he said that and that this happened before he saw Thaier Sako come back. So that, in itself, the evidence he has given here about 'that is the first thing he saw', satisfies …" 83 His Honour said: "I can tell you this, I mean the number of 'don't remembers' and the number of 'don't knows', it is just quite - I won't say unbelievable - but it certainly is an impressive number and I must say I have been watching and listening to him and telling him to speak up. As far as I am concerned I propose, Mr Pullinger to grant the leave. Do you want reasons or not?" 84 Counsel responded by asking the Crown Prosecutor to identify the evidence he proposed to adduce from Bakos. When invited to respond, the Crown Prosecutor said that he could not do that and he submitted that he was not obliged to. He was asked by the judge to "lay it out in broad parameters" and replied: "I will be basically putting to the witness that he saw Edward Esho, Gilbert Adam and Thaier Sako in an argument with Constable David Carty, who he didn't know at the time, over near the utility of David Carty. He saw initially some pushing between Thaier Sako and Carty. He then saw Esho and Adam punching at Carty and Carty defending himself, and then he saw, ultimately, Thaier Sako." 85 No voir dire was sought or conducted. While reference was made by counsel to a number of different accounts of the relevant events said to have been given by Bakos, no statement, record of interview, or transcript of evidence was tendered to establish the asserted inconsistency in his accounts. Whether his Honour had knowledge otherwise of these alleged accounts does not appear; so far as the transcript reveals, his Honour was asked to accept, on a statement by counsel from the Bar table, that such inconsistencies existed. However, the Crown Prosecutor did not dispute the assertions made by Esho's counsel. 86 His Honour granted the leave sought by the Crown Prosecutor. At a later point he formally, but succinctly, gave reasons for that decision, the substance of which was as follows: "Í am satisfied in the circumstances of this case that leave should be granted, both in terms of s 38 (1)(a) and/or in terms of s 38(1)(c). I think those reasons are sufficient enough for me to indicate that I propose to grant the leave sought." 87 As will be seen no mention was made, either by counsel in argument, or by his Honour, of the provisions of s 192(2). As appears from the passage extracted from the debate, his Honour seems to have been of the view that the only issue was whether the witness was shown to be unfavourable, and that that having been established, there was "no other basis for excluding it". 88 This was plainly not the case. In Stanoevski [2001] HCA 4; 75 ALJR 454, the High Court had under consideration a case in which leave had been granted to cross-examine an accused person pursuant to s 112 of the Evidence Act. Like s 38, s 112 confers a discretion on a trial judge to grant the leave sought, and, also like s 38, the s 112 discretion is to be exercised after taking into account the matters mentioned in s 192(2). The majority (Gaudron, Kirby and Callinan JJ) wrote: "S 192 applies to this case, and in particular to the exercise by the trial judge of his or her discretion under s 112 of the Act. it should be noted that the leave required under s 112 is not leave to adduce evidence, but to cross-examine about the character of a defendant. In addition to matters which may be relevant in a particular case, in all cases the court must take into account the matters prescribed by s 192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably been relevant to the way in which his discretion ought to be exercised had he adverted to them." 89 In the particular circumstances that appertained in Stanoevski, the High Court considered that paragraphs (a), (b) and (c) of s 192 (2) were of importance. So far as I can ascertain, paragraphs (b) and (c) were potentially important here. Possible unfairness to Esho was flagged by his counsel in that, he submitted, he did not know on which of the various versions of events Bakos would be questioned. 90 The Crown referred to the decision of this court in R v Fowler [2000] NSWCCA 142; unreported, 23 May 2000, in support of the grant of leave under s 38. However, Fowler was decided before the judgments in Stanoevski were delivered and must now read in the light of that later authority. It is of some significance that, in Fowler, no mention was made of s 192(2). 91 There being no evidence of different accounts given by Esho, or the extent of such different accounts, it is impossible for this court, as it must have been for the trial judge, to evaluate the extent of the unfairness which it was contended would have flowed to Esho. However, as I read the judgment in Stanoevski, it is necessary for a judge asked to exercise the s 38 discretion to consider all of paragraphs of s 192(2), and their possible application to the particular circumstances of the case. This was not done, and, in my opinion, on the authority of Stanoevski, it constituted an error in the proceedings. 92 It thus becomes necessary to consider whether this was an error such as to result in a miscarriage of justice, or potentially to do so. The realities of the trial cannot be overlooked. Once leave had been granted the Crown Prosecutor put to Bakos, in a leading fashion, statements he was said to have previously made. Bakos continued to claim lack of memory. He was shown the transcript of an interview of 9 June 1997. Having seen that, he admitted to having told police that "Eddie" [Esho] had confronted Constable Carty, and engaged in a degree of physical violence. However, when the Crown Prosecutor put to him that that was a truthful account, he said that it was not. 93 The same pattern followed when he was asked questions about subsequent interviews with police. He continued to claim lack of memory or ignorance. 94 At one point, when being asked about the interview recorded on 9 June, Bakos asserted that others had put "words in my mouth and into my head". He said: "They put shit into my head." 95 He said he wanted nothing more to do with the affair, that he had been forced to go to the police station to give information, but said that he did not know by whom. Later again, he repeated that he wanted nothing to do with it, saying that he had his own life to get on with. He said the only part of the fracas that he saw was: "When Thaier was walking back to me, when he was on the ground. That is the only thing I know. The rest was put into my head."

He said that he had made up some parts of the account he had given. 96 Even without the benefit of having observed Bakos in the witness box, it is abundantly plain from the transcript that he was a witness whose evidence was unreliable. In fact, as the summing-up discloses, counsel then appearing for Esho urged the jury to accept particular aspects of one or more of the various versions he had given. It seems reasonably plain that, by the conclusion of the questioning by the Crown and the cross-examination by counsel for Esho, the salient passages in all of the various versions had been drawn out. Equally, the Crown proposed that the jury would accept certain aspects of the accounts that he had given. 97 On at least five occasions during the course of the summing-up the trial judge referred to Bakos's evidence. Importantly, on the first occasion he did, he gave this caution (in this passage he was referring not only to the evidence of Bakos, but also to the evidence of Denis Oshana, in respect of whom, also, he granted leave to the Crown under s 38): "You will recall, and no doubt you have it well and truly indelibly printed on your mind, that some of the evidence that has been given at the trial by both and either of these witnesses was in conflict with the contents of some of the earlier statements made by both or either of the witnesses; in conflict with what they had said in an earlier trial involving Mr Adam; and also in conflict, so it was said, with evidence given in other proceedings, including committal proceedings. You must decide, in the case of such conflicts, whether you accept the evidence given in the trial by either or both of these gentlemen, or what each of the witnesses said in their earlier respective statements. … Nevertheless, you must decide, in the case of such conflicts, whether you accept the evidence given by each of them in the trial, or what the witness Mr Bakos, or the witness Mr Oshana, said in the earlier statements, or, on the other hand, whether, in view of the conflicts, you should even reject their evidence altogether. That is entirely a matter for you. In respect of the earlier statements I must caution you and warn you that such evidence may be unreliable. I warn you that you must exercise caution in determining whether to accept the evidence or any part of the evidence of either or both of these people, and the weight that you give to such part of the evidence as you may accept. However it is open to you, having exercised the necessary degree of caution, to accept the evidence also contained in the earlier statements in preference to the evidence given by Mr Oshana or Mr Bakos at the trial. Whether you do so or do not is a matter for you. " 98 Much later in the summing-up the judge described Bakos as "a controversial eye witness", and again reminded the jury of the earlier caution he had given. In subsequent passages he reminded the jury in strong and detailed terms of the submissions of counsel concerning Bakos's evidence. In these circumstances, it is unlikely that Bakos' evidence weighed very heavily in the jury's consideration. 99 The submissions advanced on behalf of Esho in support of this ground made similar points in relation to the absence of any consideration being given to ss 135, 137, 102, 103, or 60 of the Evidence Act. In my opinion, these add nothing to the argument based on s 192(2). If it appeared that Bakos' evidence advanced the Crown case in any significant way, it would be necessary to consider whether, if the various provisions had been taken into account, a different ruling might have been made. It is unnecessary to consider whether any error has been shown in any of these other respects, because, even if such error were shown, for the reasons already given, it is unlikely that any significant weight was given to his evidence. That proposition emerges more clearly when a closer examination is made of the way in which the Crown relied upon Bakos' evidence. . 100 In order to appreciate the significance of Bakos' evidence in relation to the charges on which Esho was convicted it is necessary to appreciate the manner in which the Crown put its case. This may conveniently be done by examining the Crown opening, which was transcribed, and salient passages in the trial judge's summing-up. 101 The opening, as recorded, tends to support the characterisation made by appeal counsel for Esho, that the event, although short lived, was really in two phases. The first phase involved the initial confrontation with Constable Carty, and his stabbing; an identifiable group of Assyrian men, including Esho, was, on the Crown case, involved in that phase. The second phase, which must have followed immediately, occurred after Constable Carty had fallen to the ground, but before his death. It was during that time that he was punched, kicked and stomped on. 102 The Crown Prosecutor said: "I expect that the evidence will establish that three Assyrian men approached David Carty in the parking lot, not necessarily all together, but very soon, one after the other." 103 He identified the three men as Thaier Sako, Gilbert Adam and Esho. He went on: "Very quickly, I expect the evidence will establish that a fight broke out with at least one of the Assyrian men wielding a knife. During that fight someone stabbed Thaier Sako in the neck, causing blood to come out of his neck. It will be the Crown case that that wound was not inflicted by David Carty, who was unarmed. Both Gilbert Adam and the accused Edward Esho swung at David Carty. Within a short period of time David Carty fell to the ground suffering from a fatal wound to the heart. He didn't get up again. The attack on him continued as he lay on the ground and he quickly lapsed into unconsciousness from the rapid loss of blood." 104 The Crown Prosecutor then went on to outline the evidence he expected would be given by Oshana, relevantly in the following terms:

"… he then looked over to where he had seen the fight start and he saw Constable Carty lying on the ground, shaking. Standing near him he saw some other men, Bashar Hurmiz, the accused Eddie Esho and the brothers Gilbert and Richard Adam. He heard Esho screaming 'he killed my brother. My brother is dead', obviously a reference to his friend Thaier Sako. He observed men walking around David Carty as he lay on the ground, kicking him very hard. … He saw [Constable Auld] standing next to a car which was in front of Constable Carty and she was calling out 'Leave him alone. Leave him alone.' And a man appeared to be just ignoring her and continuing to kick Constable Carty on the ground. He said the attack wasn't continuous. That those men at one stage walked over to where Thaier was lying and had a look and then went back and continued attacking David Carty." 105 At a much later point in the opening the Crown Prosecutor said: "In the case of Eddie Esho, we submit that he was there and you will find that he was there and was party to that stabbing." 106 It was on that basis that Esho was charged with murder. However the Crown Prosecutor went on to say: "The Crown will also call Dr Godian Fulde who was the doctor at Emergency Services at St Vincents. He will give evidence about the heart injury, the effect of it, and also the other injuries that occurred. I stress, we will not be suggesting that those other injuries contributed in any way that would justify a charge of murder, and they are only charged with maliciously inflicting grievous bodily harm. Edward Esho is also charged with maliciously inflicting grievous bodily harm with intent, as the others are, as an alternative charge. If you weren't satisfied that Edward Esho took part in the initial attack on David Carty, but were satisfied that he joined in the attack as David Carty lay on the ground, then that may be a basis upon which you could find him guilty of that offence, if you are satisfied of the essential elements otherwise." 107 A little later, again referring to the s 33 count, the Crown Prosecutor told the jury that it was the Crown case that the act [causing grievous bodily harm] occurred while Constable Carty was still alive. 108 The Crown Prosecutor referred briefly to the charge of affray, with which each of the five accused was charged, but did not clearly specify at which point in the events the Crown asserted that this offence occurred. 109 In my opinion the last passage extracted shows clearly that the case the Crown intended to, and did, present was that, firstly Esho was guilty of murder by reason of his involvement in the first phase of the events - that is, the occasion when the knife was produced and Constable Carty was stabbed. The alternative charge, the s 33 charge, did not relate to those specific events, and was not presented as an alternative based upon the absence of a sufficient intent, or some other matter on which the Crown evidence failed to reach the requisite standard, but was, in reality, based upon the allegations of punching, kicking and stomping, that occurred after the stabbing, after Constable Carty had fallen to the ground, but before he died. It was in relation to "the other injuries" that this offence was said to have been committed. In these circumstances it may not have been strictly necessary for the Crown to frame the count as an alternative, but that is the course it took. 110 This position was taken up by the trial judge in directing the jury on the s 33 count. His Honour said:

"The Crown submits, in respect of the offence of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm, that whilst there is abundant evidence, so it asserts, for you to convict of murder, if you are not satisfied that Eddie Esho took part in the original fight that led to the stabbing but did not have sufficient intention or involvement to be held guilty of murder, then you would look at the alternative charge against him of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm. The Crown submits that the indictment states as it does, that Mr Esho is charged with maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm as an alternative which has been laid, were you not to be satisfied beyond reasonable doubt that Mr Esho was involved in the attack on David Carty at the time the fatal stab was inflicted. It is an alternative that comes in where you are not so satisfied, but the Crown submits that it comes in and applies in a situation where it claims that Mr Carty was alive, in a situation subsequent to the stabbing but preceding the onset of death from the stabbing." 111 I have set out these extracts at some length because it is necessary to analyse the issues to which the evidence elicited from Bakos, following the grant of s 38 leave, went. Given the fashion in which his evidence was adduced, this is not an easy task. What the Crown did was to put to him passages from the various statements or interviews he had made or given. His evidence was, as I have indicated, difficult to follow. However, to the extent that it described any activity by Esho, it was activity that must have taken place before Constable Carty fell to the ground. That is because he had described Esho as swinging punches at Constable Carty. I have discovered no references in any of the passages of his previous statements or information put to Esho that relate to events which took place after Constable Carty's collapse. The significance of that is that whatever emerged from Esho's cross-examination by the Crown, it went only to the charge of murder, on which he was acquitted. 112 This is the most significant point made by the Crown in opposition to this ground. Bakos was described as "the vital witness" in the Crown case against Esho - but in relation to the charge of murder, on which Esho was acquitted. That circumstance illustrates, more forcefully than anything else, the absence of weight that was attached by the jury to his evidence. Bakos' descriptions of the events were primarily, if not entirely, directed to the first phase of the events in question; that is, the events which resulted in the death of Constable Carty, and preceded the second phase which was of particular relevance to the charge of affray and the charge of malicious infliction of grievous bodily harm. His descriptions, various as they were, did not go to the events that led to the convictions under s 35, or of affray. In those circumstances it is difficult to see how the grant of leave to cross-examine Bakos in any way caused a miscarriage of justice. 113 Further, I am satisfied that, even if the trial judge had expressly adverted to s 192(2) the decision would have been no different. Although it was urged upon this court that the leave granted significantly protracted the trial, (involving s 192(2)(a) by reason of the length of time spent in the cross-examination of Bakos) whether or not error has been demonstrated in the grant of leave cannot be determined with the benefit of hindsight. It is to be observed, in any event, that the question is not whether the grant of leave would be likely to prolong the trial - it is whether the grant of leave would be likely to add unduly to the length of the trial. That assessment can only be made in the light of other factors referred to in s 192 (2) such as the importance of the evidence and the nature of the proceedings. Bakos' evidence was regarded as important in the Crown case on murder. That it was not, in the end, sufficient to result in a conviction on that charge does not affect the process that had to be undertaken by the trial judge in determining the application. That question also had to be determined prospectively, not retrospectively. 114 I would, accordingly, reject the ground of appeal based upon the grant of leave to the Crown to question Bakos as though cross-examining.

Ground 3: the verdict of the jury is unreasonable and cannot be supported by the evidence. 115 In written submissions in support of this ground counsel for Esho asserted, that in relation to the counts on which Esho was convicted, the Crown case relied upon the evidence of Tony Bakos and Denis Oshana. For reasons I have sought to explain above, I am satisfied that the evidence of Bakos did not, at least in any significant way, go to any charge other than the charge of murder. 116 Oshana fell into the same category as Bakos in the sense that leave was granted to the Crown under s 38 to question him as though cross-examining. No ground of appeal complains of that grant of leave. 117 A reading of the transcript reveals that Oshana's initial evidence was not as unfavourable to the Crown as was that of Bakos; or, put another way, Oshana was less intransigent than the transcript shows Bakos to have been. Prior to the grant of s 38 leave, and when Oshana was being questioned by the Crown in the ordinary way, he described seeing Constable Carty lying on the ground surrounded by a number of others who included Esho. He said Esho was a couple of metres away from Constable Carty, but moving around. Asked if he saw movement of anybody's feet around Constable Carty he said he had seen "jumping around kind of thing". He said it was "probably" kicking, and that four men he had named, including Esho, were "probably" close to Constable Carty at the time of the kicking. He heard Esho call out: "My brother's got stabbed … he stabbed my brother, my brother got stabbed." 118 He heard this called out a couple of times in a loud voice. 119 This evidence alone, given before Oshana was cross-examined by the Crown, was significant evidence in the Crown case against Esho on the alternative charge. 120 After the grant of leave to cross-examine, previous statements made, or evidence given, by Oshana were put to him, and this, effectively, reinforced his earlier evidence. On one occasion he had said: "I could see people were kicking the policeman, but I can't tell you which one of these people were kicking the policeman. There was legs going everywhere and they were moving around the policeman."

He had identified Esho as one of four people (the other three of whom he also identified) who were standing near Constable Carty. He said: "Í remember that Eddie [Esho] was screaming and swearing at the policemen and he'd looked like he lost it."

He had described a number of men, including Esho, "kicking the policeman". 121 He agreed that, in the committal proceedings, he had also described seeing Constable Carty being kicked, and when asked who was nearby at the time, he said: "It would have been Eddie." 122 This was the principal evidence directly implicating Esho in the act that constituted the offence of maliciously inflicting grievous bodily harm, and also the offence of affray. There was some supporting evidence, including evidence of the altercation between Esho and Constable Carty much earlier in the evening in Fairfield; evidence of Constable Carty's blood on Esho's sock and shoe and on his shirt; and evidence of lies told by Esho on which the Crown relied as indicating a consciousness of guilt on his part. No criticism is made of the admission of any of this evidence, or the manner in which the jury was directed in relation thereto. Nor is any criticism made of the cautionary directions given by the trial judge about Oshana's reliability, much of which has been extracted above. 123 Esho gave evidence in the trial, and the content of his evidence is relied upon in support of this ground. However, as is always the case, the issue of the acceptance of evidence is peculiarly one for the jury. The jury was not obliged either to accept Esho's evidence, or even to regard it as a reasonably possible version of events. Having been correctly instructed in relation to these matters, the jury plainly rejected Esho's account. In my opinion the evidence outlined above was sufficient, if accepted by the jury, to sustain the findings of guilt. It was therefore open to the jury to be satisfied beyond reasonable doubt of Esho's guilt on the two offences on which it convicted. M v R (1994) 181 CLR 487. 124 I would reject this ground of appeal. 125 That concludes the grounds of appeal against conviction raised by Esho.

126 By this ground Sako asserts error in the admission into evidence of certain questions and answers contained in two electronically recorded interviews conducted with him on 18 April 1997, the first at the police station, and the second at the Cambridge Tavern, at and around the scene of Constable Carty's death. 127 The objection in each case was taken under s 85 of the Evidence Act, which provides:

85. Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) in the course of official questioning, or (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned. 128 In the first series of questions to which objection was taken Sako told the interviewing officer that he had not been in the street, or near Constable Carty's motor vehicle. In the second series of questions he denied having approached Constable Carty after he was stabbed, and in the last series, he denied any knowledge of Constable Carty. In the subsequent interview the answers to which objection was taken were of similar content. 129 The Crown relied upon the overall content of these answers as representing lies told by Sako signifying a consciousness of his guilt: R v Zoneff [2000] HCA 28; 112 A Crim R 114; R v Edwards (1999) 178 CLR 193; 68 A Crim R 349. By other evidence the Crown proposed to establish that these answers were untrue. It is only by reason of the extended definition of "admission" contained in the Dictionary to the Evidence Act that permits these answers to be so characterised, with the result that s 85 is applicable. The basis for Sako's objection to the admission of the evidence was his claimed lack of proficiency in the English language; that is, he put forward his claimed lack of proficiency as a "relevant condition or characteristic" by reason of which he urged the court not to find that the circumstances in which the admission were made were such as to make it unlikely that the truth of the admission was adversely affected. 130 When that question arose Sako himself gave evidence on the voir dire. An Assyrian interpreter was sworn to interpret for him, but was directed, at the outset of his evidence, not to translate unless expressly asked. The transcript shows that Sako gave the whole of his evidence, which proceeded over twenty-one pages of transcript, without recourse to the interpreter. The police officer who interviewed him also gave evidence on the voir dire. He said, inter alia, that he had appreciated that English was not Sako's first language and had, at the outset of the interview, asked if he would like an interpreter. Sako replied that he understood. It is interesting to observe that, at the conclusion of the police officer's evidence on the voir dire, the video recording was tendered as an exhibit, but that counsel then appearing for Sako did not ask for it to be viewed by the trial judge. Notwithstanding that, in a judgment delivered on the day the matter was debated, his Honour observed that he had had the opportunity of viewing and considering the recording. The trial judge rejected Sako's claim that his grasp of English was in any way inadequate. He therefore declined to disallow the answers under consideration by reference to the provisions of that section. He considered also the exercise of the discretion conferred by s 135, and the evaluation process required by s 137, but concluded that neither of these should be exercised in favour of exclusion of the evidence. Finally, he considered the provisions of s 90 of the Evidence Act, which confers on a criminal court the discretion to refuse to admit evidence of an admission, or to prove a particular fact if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to admit the evidence. For the reasons already given, he declined also to exercise that power in favour of Sako. The arguments advanced in this court in support of the ground were essentially a rehearsal of the arguments extensively put to the trial judge, and comprehensively and thoroughly considered - and rejected - by him. In my opinion the fundamental finding of fact on which his Honour's decision was made, that is, that Sako's grasp of English was not as compromised as he contended, is fatal to the argument in this court. From that, it can be inferred that, whatever the reason for Sako's false replies, they were not brought about by lack of comprehension of the questions, and were therefore not such as to affect the truth of the "admissions" made. These findings of fact were not challenged. 131 It was further argued that s 137 ought to have been applied in favour of rejecting the evidence, because, so the argument went, Sako's language difficulties meant that the evidence had relatively slight probative value, but was nevertheless likely to be given disproportionate weight by the jury. There being no complaint about the Zoneff and Edwards directions given by the judge I would reject that argument also. 132 In my opinion there is no substance to this ground of appeal.

Ground 3 - Identification directions 133 The last ground of appeal argued on behalf of Sako in relation to the conviction concerned directions given in relation to his identification. Three witnesses as to identification were nominated. The only elucidation of this ground of appeal was that the directions given failed to meet the standard required by the decision of the High Court in Domican v R (1990) 173 CLR 555: that is, they lacked sufficient strength. A reading of the summing up shows that this submission is without foundation. At an early stage, his Honour reminded the jury, in relation to various matters, that the events in question had taken place over a short time in the early hours of the morning, when witnesses may have had little real opportunity to make clear observations. He reminded the jury that no two eye witnesses had given identical accounts; that some lay witnesses had been to some extent under the influence of intoxicating liquor, and some had, by reason of obstructions, only limited opportunity to observe events. He then turned directly to the question of identification and told the jury that such evidence has always to be "approached with special caution" before being accepted as reliable. He then proceeded, in classic terms, to point out why that is so. 134 Later in the summing-up, his Honour reviewed extensively the arguments put by counsel, not only for Sako, but for the other co-accused, on specific matters concerning identification. 135 In my opinion the jury could have been left in no doubt that it was necessary for them to approach the identification evidence with care and even scepticism. There is little, if anything, that the judge could have added, and indeed, there is no specific direction or instruction which is contended ought to have been, but was not, given. 136 I would reject this ground of appeal. 137 My conclusion is, accordingly, that both conviction appeals should be dismissed.

The applications for leave to appeal against sentence 138 Both Esho and Sako seek leave to appeal against the sentences imposed upon them. 139 The statutory maximum applicable to an offence against s 35 is imprisonment for seven years. A conviction for affray carries a statutory maximum of imprisonment for five years. On the conviction for maliciously inflicting grievous bodily harm Esho was sentenced to imprisonment for six years and eight months, with a non parole period of five years. On the charge of affray he was sentenced to a concurrent fixed term of imprisonment for two years. 140 Sako, who was convicted only of maliciously inflicting grievous bodily harm, was sentenced to imprisonment for five years with a non parole period of three years and nine months. 141 The remarks on sentence were extensive, comprehensive and detailed. Abadee J considered all of the circumstances of the offence, and the individual roles played by, and the personal circumstance of, each appellant. As to the events of the early morning of 18 April 1997, affecting both appellants, he held that Constable Carty was unarmed and had offered no provocation. He recounted the evidence that the attack had taken place in two phases, the first culminating in the stabbing of Constable Carty, the second constituted by what he described, on more than one occasion, as "ferocious", "brutal", and "savage" behaviour. He characterised the injuries suffered by Constable Carty in the second phase as "horrendous" and "brutal". 142 He considered the evidence and concluded that, for sentencing purposes, the appellants should be regarded as guilty as accessories, rather than as directly responsible for any of the injuries, but he took the view that this did not reduce the culpability of either appellant. He specifically reminded himself that each was to be sentenced for the s 35 offence, omitting any element of intention to cause grievous bodily harm, and he also specifically reminded himself of the principle stated in R v De Simoni (1981) 147 CLR 383, that he could not take into account any aggravating feature that would have elevated the offence or offences for which the appellants were convicted to a more serious offence, carrying a more severe maximum penalty. He concluded, however, that he was entitled to, and he did, take into account three aggravating features: firstly, that a knife or knives had, to the knowledge of each appellant, been used during the first phase of the attack (although he did not conclude that either appellant knew at the time of the second phase that Constable Carty had been fatally injured); secondly, that at the time of the second phase, Constable Carty was, to the knowledge of the appellants, defenceless; and thirdly, that each appellant knew that Constable Carty was a police officer. 143 An argument had been put on behalf of both appellants to the effect that parity considerations were material. This arose in a somewhat unusual way. As has been previously noted, in an earlier trial, Richard Adam had been convicted of the same offence. Wood CJ at CL sentenced him to penal servitude for two years and eight months made up of a minimum term of two years and an additional term of eight months. He had, it seems from the judgment of this court on the conviction appeal, spent only two days in pre-trial custody following his arrest. On this basis the appellants argued that they could legitimately expect a sentence of a similar term. Abadee J rejected that argument. A Crown appeal against the sentence imposed on Richard Adam had been filed, but, by reason of the success of conviction appeal, the court did not proceed to deal with the Crown appeal against sentence. It will be necessary to say more about this when dealing with the specific matters raised on behalf of each of the appellants. 144 It is necessary now to consider the findings of fact made by Abadee J in relation to each of the appellants individually.

ESHO 145 Abadee J found as a fact that Esho was present at the commencement of the encounter between Thaier Sako and Constable Carty; but that, after Thaier Sako was injured, Esho and Thaier Sako withdrew from the scene and that Esho was not present at the time Constable Carty was stabbed. However, he also found that Esho, shortly after, returned to the scene, intending to harm Constable Carty, and that he expressly incited and encouraged others to continue the "ferocious and brutal " attack. Significantly, his Honour held (and said so more than once) that Esho played "a significant role" in the commencement of the altercation, and was "in it from the start". 146 His Honour believed that Esho was resentful towards Constable Carty because of the earlier incident when Constable Carty had reprimanded him in the Fairfield Mall for his use of bad language. 147 Abadee J concluded that Esho's s 35 offence fell into the category of "worst case" justifying the imposition of the maximum penalty provided by the statute. 148 His Honour reviewed the subjective material that had been placed before him. This showed that Esho was born in Iraq on 14 March 1972 and was almost twenty-five at the time of the offence. He had served in the Iraqi army which he deserted before migrating to Australia. He had some criminal history, being 1996 convictions for violent disorder and malicious damage. There was evidence from members of Esho's family attesting to his involvement in the Assyrian church, and of his devotion to his family. His Honour was unimpressed with this evidence, remarking that the compassion that was been said to be part of Esho's character was not in evidence at the time of the assault on Constable Carty. He also rejected a suggestion, made by Esho's uncle, that Esho had been threatened since Constable Carty's death. He held that Esho had shown no contrition or remorse. The subjective circumstances recounted did not alter his Honour's view that Esho's offence fell into the worst class of case. 149 Abadee J took a slightly more benign view of Sako's role in the crime. He accepted that Sako was not present at the initial confrontation between his brother and Constable Carty, and was not present when Constable Carty was stabbed. He became involved when he learned that his brother Thaier had been stabbed. His Honour found that Sako had approached Constable Carty at a time after he (Constable Carty) had been stabbed and was lying on the ground unconscious or nearly so. He found that Sako intended to inflict some harm, falling short of grievous bodily harm, on Constable Carty, and was involved as an accessory, knowing that the other participants were engaged in a "ferocious battery" on Constable Carty. He accepted that his involvement was a result of "spontaneous emotion" generated by the knowledge that his brother had been injured, but rejected as not proven to the requisite standard a proposition advanced by the Crown that he was expressly motivated by revenge. He accepted that, at the time, Sako was "very distressed and emotional". He accepted that Sako was less culpable than Esho and therefore did not accept the proposition that his offence fell into the worst category of case, although he held that it was close to such an offence. He found that Sako knew Constable Carty was a police officer. 150 Sako's personal history is not dissimilar to that of Esho. He was born, also in Iraq, on 7 April 1971 and was just a few days short of twenty-six at the time of this offence. He, too, deserted the Iraqi army and came to Australia with his family in 1992 when he was granted refugee status. Sako's criminal record contained two offences of resisting police, one of cruelty to an animal, and one of violent disorder, all committed in 1995 or 1996. 151 Sako had had some employment but was in receipt of unemployment benefits at the time of the offence. 152 In his case, too, family members gave evidence of a non-violent disposition but this also found little favour with Abadee J. His Honour did, however, note one additional matter of significance for sentencing purposes. That was the period of time Sako had spent in pre-trial custody (two and a half years) and onerous conditions that applied after his release on bail. 153 Both appellants reiterated the arguments advanced before Abadee J that principles of parity required the imposition of a sentence comparable with that imposed on Richard Adam prior to his acquittal on appeal. In my opinion the principles relevant to parity of sentences have no application in this case. Those principles are not founded on a proposition that the first sentencing judge in relation to co-offenders establishes a bench mark which is to be adopted and followed by subsequent sentencing judges. They are based upon the proposition that co-offenders can, generally speaking, (but having regard to differences in relevant circumstances) expect to be dealt with commensurately. Given that Richard Adam will serve no sentence, those principles cannot be relevant.

ESHO 154 The first of the grounds upon which Esho challenges the sentences concerns the finding of fact, expressly made by his Honour, that he had played a significant role in the initiation of the altercation. He does not challenge the finding that he was present when Thaier Sako first confronted Constable Carty, or that he had asked Constable Carty "Why you tell me to shut up?" [at Fairfield]" 155 In one sense, the finding of fact is incontrovertible. There can be little doubt that the precipitating event was the encounter between Constable Carty and Esho earlier in the evening; nor that that event was brought up by Esho at the Cambridge tavern; nor that Esho was present with Thaier Sako when he approached Constable Carty in the car park. 156 The point that is made on behalf of Esho is that, while these circumstances may be accepted, it does not follow that he was responsible for the conduct of any of the other participants. As a matter of logic, that may be correct. But that requires some analysis of the extent (if any) to which Abadee J regarded Esho's culpability as exacerbated by reason of his involvement in the precipitating events, and the extent (if any) to which that conclusion can be sustained on the evidence. 157 Abadee J noted that Esho had no particular or valid reason to approach Constable Carty and that, in effect, Esho had to make a detour in order to come into contact with Constable Carty. 158 I have given consideration to the argument, and to the findings of fact made by Abadee J. I am satisfied that the findings of fact were warranted on the evidence. In my opinion, those findings represented a circumstance, not of aggravation, but one which certainly did not mitigate Esho's role. I am satisfied that, in saying what he said, Abadee J intended to attribute some blame to Esho for the commencement of the confrontation. But I am equally satisfied, when all of the evidence is considered, that that reasoning process was a valid one. The fact, accepted by Abadee J, that Esho had raised the earlier encounter with Constable Carty is of considerable significance. It could hardly be thought that, Esho having said that, his companions spontaneously and independently undertook the attack. 159 Further, although it was a circumstance that certainly did not assist Esho on sentence, Abadee J was careful, in the same context, to point out that Esho was not present at the time of the stabbing of Constable Carty and had in fact withdrawn, at that time, from the fracas. It was only later that he returned to participate further in the second phase of the attack. In my opinion no error has been shown in this respect. 160 The next two matters raised on behalf of Esho concerned Abadee J's evaluation of the gravity of his conduct. The first of these challenges the finding that his conduct should be categorised as falling within the worst class of case. The second challenges the conclusion that the finding that Esho's liability was accessorial, not direct, did not diminish his culpability. In considering the first of these matters it is necessary carefully to avoid classifying the s 35 offence as, in reality, a s 33 offence - that is, an offence committed with an intention to cause grievous bodily harm. The potential for De Simoni error is manifest. However, Abadee J carefully, and on more than one occasion, reminded himself that he was not sentencing for an offence that involved the element of specific intent; at the same time, he recognised that malice was an element of the offence proved. This court needs to take the same care, but, nevertheless, it is entitled to have regard to what Abadee J described as "the ferocity" of the attack that constituted the second phase. This was a circumstance in which a large number of young men surrounded Constable Carty, who had already been stabbed fatally, who was lying defenceless on the ground, and who was repeatedly kicked and stomped upon with such force as to cause the injuries earlier described. While I recognise the difficulty in approaching this question on the basis that there was no intention to inflict grievous bodily harm, I am nevertheless satisfied that the offence may properly be characterised as a worst case scenario: that is, a worst case under s 35. The sheer number of participants is a significant factor in this regard. I am satisfied that concluding that this was a worst case example of an s 35 offence does not fall foul of De Simoni principle. There must, after all, be room for a "worst case" under s 35 without crossing the boundary of s 33. In my opinion Abadee J's finding that this was such a case was open to him and is not vulnerable to the challenge now made. 161 The same response must be made to the complaint that his Honour did not consider the offence mitigated because it was proved to have been committed as party to a joint enterprise as distinct from having been committed as a principal. Again, the sheer number of participants, and the sustained nature of the attack support the findings of Abadee J. So also does the express finding that Esho was aware that Constable Carty was a police officer. There is no principle of sentencing that accessorial liability necessarily involves lesser culpability. The degree of culpability of any accessory depends upon the facts of the particular case. In this case the degree of culpability was high. 162 Two further matters concern the approach taken by Abadee J to subjective circumstances. In one, Esho complains that his Honour failed to give any effective allowance for the possibility of rehabilitation. In the second he complains that his Honour failed to give any weight to his subjective circumstances. 163 His Honour did mention the evidence called on behalf of Esho as to his personal history and background, and this has been outlined above. He held that these circumstances did not affect his earlier conclusion that the offence fell into the worst class. One difficulty for Esho is that Abadee J considered that the evidence about his general disposition was in conflict with the evidence of his conduct on the morning in question. Further, so far as I can see, apart from the evidence of family members as to Esho's past conduct, no real case on rehabilitation was advanced. The finding of the absence of contrition is a significant matter in this respect. I do not think his Honour could have been in error in not making allowances for rehabilitation, of which there was no evidence. 164 In the same vein, Esho complained that retribution and deterrence were emphasised at the expense of the matters previously mentioned. It is true that his Honour gave considerable weight to, in particular, general deterrence, but I am unable to see that this was an error. This was an offence that called for significant weight to be given to that aspect of sentencing. Not the least consideration, in this regard is Esho's knowledge of Constable Carty's position. 165 Finally, it was argued that the sentence was manifestly excessive. In sentencing Esho Abadee J took into account a period of pre-trial custody which was of the order of one and a half months. The effective sentence was therefore of six years nine months and fifteen days. For the s35 offence, against a statutory maximum of seven years, this may, at first glance, appear difficult to justify. However, regard must be had also to offence of affray and to the principle of totality which his Honour mentioned, and to the finding that the offence was, indeed, in the worst case category. 166 Even taking into account the circumstance that his Honour classified the s 35 offence as in the worst category, and my conclusions in relation to the challenge to that view, the sentence is, in my view, a heavy one. However, having regard to those two circumstances, together with the offence of affray, I am unable to conclude that the sentence was outside the range legitimately available. I would, accordingly, grant leave to appeal against the sentence but dismiss the appeal.

SAKO 167 Sako raised a question of parity, not only with the Richard Adam sentence, but also with the sentence imposed on Esho. However, no further submissions were directed to this proposition. 168 I would reject the ground of appeal based on parity either with Richard Adam, or with Esho. The matters that were argued involved a challenge to the sentencing judge's reasoning process which led to his findings of fact. For example, it was argued that a statement by his Honour that Sako: "was involved in the assault upon him in concert with others, knowing that they were engaged in, at or about the time, ferocious battery of David Carty during which time he suffered gross serious injuries, to wit scalping."

was contrary to the finding that Sako's liability was accessorial. Particular focus was placed on the words "involved in". As I understood the submission, it was that the finding of accessorial liability negated Sako's being "involved in" the assault. This proposition cannot, in my view, be accepted. 169 The second error was really a re-statement of the first ground of appeal against conviction - that is, that, if those findings of fact are correct, the proper verdict would have been a conviction under s 33. The acquittal on that charge necessarily entailed that there was insufficient evidence to establish Sako's knowledge of the ferocity of the attack upon Constable Carty. 170 I do not accept this. It may well be that the evidence was sufficient to establish a more serious charge than that on which the jury convicted. That does not mean that Sako has not been shown to have been aware of the numbers of men involved, or the nature of the attack. 171 Another complaint is that Abadee J failed properly to identify precisely what he found Sako had done. It is true that there is no precise statement in the remarks on sentence of Sako's conduct, but, I take it, this is the reason that his Honour concluded that he had been found guilty, or should be treated as having been found guilty, as an accessory. That is the nature of accessorial liability. Having been found guilty as an accessory, Sako became liable for the acts carried out in the execution of the joint criminal enterprise. 172 I find no error in the assessment of criminality. 173 In this case also, I would grant leave to appeal but dismiss the appeal. 174 The orders I propose are:

(ii) leave to appeal against sentence granted, appeal dismissed.

2. Sako (i) appeal against conviction dismissed.

(ii) leave to appeal against sentence granted, appeal dismissed. 175 SMART AJ: I agree with Simpson J. ********

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