R v Fahad [2004] VSCA 28

2. I agree with Bongiorno, A.J.A., for the reasons which he gives, that the application for leave to appeal against the convictions recorded in the trial conducted by Judge Lewitan should be allowed; that the convictions and sentences should be set aside; and that in their stead verdicts of acquittal should be entered. I also agree, for the reasons advanced by Bongiorno, A.J.A. that the application for leave to appeal against the sentences imposed by Judge Hart should be allowed and that, in lieu thereof, the sentences proposed by Bongiorno, A.J.A. should be substituted; such sentences to commence from 12 December 2003 (the date on which the sentences were imposed by Judge Hart).

6. I agree that the verdicts are unsafe and unsatisfactory for the reasons stated by Bongiorno, A.J.A. I also agree with the orders proposed.

10. On 15 October 2002 the applicant, Tony Fahad, was arraigned before Her Honour Judge Lewitan and a jury in the County Court and pleaded not guilty to seven counts on a presentment filed against him alleging offences said to have occurred on 29 April 2001 on the edge of the Melbourne central business district. The offences to which Mr Fahad pleaded not guilty were robbery, attempted robbery, causing injury intentionally, causing injury recklessly, false imprisonment, armed robbery and reckless conduct endangering a person. The victim of each of these offences was a young woman, Kammy Le. A co-accused, Kym Christie, had earlier pleaded guilty to a presentment alleging counts of robbery, assault and false imprisonment, armed robbery and reckless conduct endangering a person arising

from the same incident involving Ms Le and had been remanded on bail for plea and sentence.

14. Upon Mr Fahad's trial Ms Le described an event which she said occurred at about 4.40 pm on Sunday 29 April 2001 whilst she was waiting for a tram at the corner of Exhibition and Albert Streets (sic). In fact she meant Nicholson and Albert Streets. Whilst waiting for the tram she was speaking on her mobile phone when a woman approached her from a motor vehicle which had stopped on the opposite side of the road. She said that after an exchange of a few words, the woman, now known to have been Kym Christie, grabbed her mobile phone from her and began walking back towards the car. Ms Le ran after her and a struggle ensued. As Christie approached the car Ms Le saw a man standing on the driver's side of the car. She described this man as having dark hair, dark eyes, about 165 centimetres tall, medium build and a bit older than Christie. She said that he was wearing dark coloured track suit pants. On the Crown case this person was the applicant Tony Fahad. Ms Le attempted to regain her phone and to this end followed Christie into the car.

17. Over succeeding minutes Christie and the man with her assaulted Ms Le, attempted to seize a bracelet from her wrist and carried her some distance in the motor vehicle into Exhibition Street before she was released from their custody by the intervention of a security guard, although before this occurred she had been dragged some three or four metres along the roadway whilst trying to leave the moving car.

20. The details of each of the offences upon which Fahad was tried are now of little importance. The only issue on his trial and therefore the only issue to which this appeal is directed, was whether he was the person in the car with Christie before, during and after the events described by Ms Le took place.

23. In her evidence upon Mr Fahad's trial Ms Le described her male assailant in the terms I have set out. She also deposed that on 8 May 2001, some 10 days after the incident, she attended at the Melbourne police station where she was shown a manilla folder containing 12 head and shoulder, black and white photographs of male persons. The photographs were numbered 1 to 12. She was asked if any of the photographs was of her assailant.

26. Ms Le gave evidence before the jury identifying the manilla folder, referred to by counsel as a "photoboard". She said that when she had looked at the photoboard at the police station she had been able to see the person who had been in the motor vehicle on 29 April. She said he was "number 6". She recognised number 6 as being on the photoboard as she gave her evidence and when asked to say how sure she was that "that is the man" she answered: "very sure". But what this last question and answer means in its context is a little unclear. She may have been just pointing to the person she first pointed to at the police station and confirming that she had done that, or she may have been making an identification in the witness box of her assailant.

29. Ms Le was cross-examined as to her description of the male person in the car, as to the colour of his hair, his height and other features. She conceded that she had never described her assailant as having tattoos or a scar on his face. She said she had never seen her assailant before.

32. In cross-examination concerning her identification of the applicant Ms Le conceded that when she looked at the photographs at the police station her comment was "the face, I think it is him". Later she said that when she looked at the photoboard none of the faces looked familiar except number six. Immediately after that answer the following exchange occurred between Ms Le and the cross-examiner:-

"So he looked familiar, but none of the others looked familiar; is that what you're saying? - - - Yes and because I can't describe him in words, I can't for sure say in photo that's him, but he's the only one that looked familiar, because everyone else looked totally different. All right, is your evidence that he was the one that looked most like the person who - the male person who was there that day? - - - Yes. But you don't say look, that's definitely that person, do you? - - - M'mm. I can't say that, because already in words, I can't describe him definitely, so I don't want to be definite on looking at the photo, even though I'm sure, but then because already in words, I say I'm not definite. But you would say, if you are being honest with this jury, you would say to them, listen, I'm not certain this is the person, but that looks like the person; that's your evidence, isn't it? - - - Yes. You are not disagreeing with me are you? - - - First I said to Constable Dixon that I think that's him and then later on I said again, I'm pretty sure that's him. You see what I'm saying to you today, and I'm not saying you are being dishonest in your evidence at all, what I'm saying to you is - what I'm saying is, if you're being honest with the jury, your evidence is look, I can't say that I'm certain that it is this person, but he looks the most familiar out of the photos that I was shown? - - - Yes. You agreed with me when I say that? - - - Yes."

36. In re-examination by the prosecutor Ms Le described the applicant's photo as being "the most lightest" of all the pictures on the photoboard. After making this statement she said: -

"His picture is the most lightest and probably that captured my eye first, straight away, and then I thought carefully and looked at all the others before I confront is him or not (sic) but none of them looked familiar at all."

"Well what do you say about person No. 6? - - - He looks familiar, as soon as I saw the picture. Well do you say - what do you say about him being the person who was in the motor vehicle on 29 April last year? - - - Yes. I'll say it's him."

44. The photoboard to which Ms Le was referring, which was in evidence before the jury, consists of a manilla folder upon which have been glued two A4 sheets of paper each containing six separate images of male faces. Each of the A4 sheets appears to be a scan of a collage of black and white photographs. Each of the photographs appears to have been taken under different conditions and, as Ms Le said in her evidence, the features on the photograph numbered 6 are clearly lighter than the features on each of the other 11 photographs. It stands out as being distinctly different from the others.

47. The police officer who showed Ms Le the photoboard at the police station, Detective Senior Constable Raelene Dixon, gave evidence that Ms Le had said "I think that's him. I remember the hair. I'm sure that's him" when she was shown the 12 scanned photographs.

50. In Pitkin v The Queen[1] the accused was charged with theft by taking a handbag from a woman in a supermarket and subsequently escaping in a stolen motor vehicle. The victim of the offence did not see the thief's face. She saw his back as he ran away and the only description she could give was that he had "short hair", was of "slight build" and wore "a T-shirt and a pair of football shorts". She said that she "estimated from his build" that he was "probably around about his 20s" but added that she "couldn't ... honestly say how old he was" since she "didn't see his face". Another customer saw the man who stole the handbag on three separate occasions on the same day at the same shopping centre. She first observed him "for about two or three minutes" from a distance of 14 or 15 metres and subsequently saw him enter the supermarket where the theft took place and then run out of the supermarket "with a lady's handbag". He got into the passenger seat of a motor vehicle which "sped off". About half an hour after the incident this customer was shown a number of photographs by police. She chose three photographs of the accused and said: "This looks like the person that I seen take the lady's handbag."

53. In upholding an appeal by the accused against his conviction the High Court (Deane, Toohey and McHugh JJ.) observed that as the description by the victim could not have positively identified the accused as the offender the prosecution case had to rely upon the evidence of the other shopper who had observed him. But she had not made a positive identification of the accused. The Court said that where the prosecution relies upon evidence of identification by a witness' earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words are used which are reasonably capable of being understood as consistent with an absence of positive identification without further explanation or elucidation there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. The Court referred to Knight v The Queen[2], Martin v Osborne[3] and Plomp v The Queen[4].

56. Unlike the evidence of the witness in Pitkin, in the instant case some of Ms Le's evidence may have amounted to a positive identification. Her initial evidence that when she looked at the photoboard at the police station she had seen her assailant could, if accepted by the jury, have amounted to a positive identification. However, the jury could only have accepted that evidence in its unqualified form if it rejected the significant qualifications the witness put upon it in cross-examination and, indeed, in re-examination, in the passages quoted above.

59. Apart from Ms Le's purported identification the only other piece of evidence which connected the appellant with this crime was his beneficial ownership of the motor vehicle involved which was in fact registered in the name of his co-accused's mother, Christine Christie. This evidence was said by the applicant's counsel to be essentially neutral in its effect. Whether that is so or not it certainly could not support the jury's verdict unless the jury also accepted, beyond reasonable doubt, a positive identification of the applicant as being implicated in the assault on Ms Le. If it did the car ownership would have been redundant. If it didn't it would have been irrelevant.

62. In her charge to the jury the trial judge characterised Ms Le's evidence as having amounted to a positive identification of the appellant as her assailant. Although she then added extensive and appropriate directions of law as to identification evidence generally and cautioned the jury to consider the evidence carefully and even referred to Ms Le's cross-examination, she did so against the unqualified statement that Ms Le had identified the accused from the photoboard. This statement by the judge would quite reasonably have led the jury to conclude that it could not characterise Ms Le's evidence as no more than an expression of similarity between her assailant and the appellant. Apart from a reference to Ms Le having made concessions in cross-examination the jury's attention was not drawn to the real issue they had to determine, namely whether in fact Ms Le had identified the appellant in "clear and unambiguous" terms as required by the decision in Pitkin[5].

65. As the only evidence which implicated the applicant in the commission of this crime was that of Ms Le (and perhaps his acknowledgment that he was the beneficial owner of the car involved) unless the jury was satisfied beyond reasonable doubt that Ms Le had identified the applicant as her assailant they were not entitled to convict him on any of the charges upon which he was arraigned.

68. It was the function of the jury, not the trial judge, to determine whether Ms Le's evidence amounted to a positive identification. In order for it to do so it had to be properly directed. A direction was required to the effect that the jury had to determine whether Ms Le had positively identified the applicant and that it was only if it was satisfied of that identification beyond reasonable doubt could it proceed to conviction. Such directions should also have included a reference to other evidence in the trial (to which I shall hereafter refer) which pointed to a person other than the accused as Kym Christie's accomplice. In as much as such directions were not given the trial judge's directions were deficient. That deficiency may have deprived the applicant of a chance that was fairly open to him of being acquitted. Accordingly there is, in the eye of the law, a miscarriage of justice.[6] The applicant is entitled to a new trial.

71. But the matter does not end there in this case. Whilst the trial judge would have been required, by the application of the principle in Doney v The Queen[7] to leave this case to the jury with a proper direction as to the way in which it should approach the identification issue, this Court must now consider whether, if she had done so and if the jury had convicted the appellant, such conviction would have been unsafe and unsatisfactory as that term is used in cases such as M v The Queen[8].

74. To determine this question this Court must make an independent assessment of the evidence and determine whether, notwithstanding that there was evidence upon which a jury might convict it would be nevertheless dangerous in all the circumstances to allow a verdict of guilty to stand. Should the Court come to the conclusion that a verdict against the appellant would be unsafe and unsatisfactory then, in the circumstances of this case, it would be appropriate to enter a verdict of acquittal at this stage rather than to order a new trial.

77. The identification evidence and its inherent weaknesses have already been discussed. For the jury to come to a conclusion that Ms Le had positively identified her assailant as the appellant it would need to have rejected her significant qualifications on that evidence in cross-examination and re-examination. On the whole of the evidence there was no logical reason for the jury to reject those qualifications. In the absence of any logical explanation for the rejection of Ms Le's uncertainty when cross-examined and re-examined it is impossible to accept that the jury could logically have come to a conclusion beyond reasonable doubt that she had made a positive identification. Any conviction based upon her evidence would, in the circumstances, be unsafe or unsatisfactory and ought not be allowed to stand.

80. There are a number of other matters which fortify a conclusion that the appellant's conviction in respect of these offences should not stand.

83. The Crown relied upon the fact that the car involved in the criminal escapade of which Ms Le was the victim was beneficially owned by the appellant even though it was registered in the name of his co-accused's mother. In the circumstances it added nothing to the identification evidence already referred to. Its presence at the scene of the crime was explained by the appellant in his record of interview, which explanation would have had to have been rejected by the jury beyond reasonable doubt for it to have used evidence of the ownership of the car in support of any identification. It could not have done so logically on the evidence before it.

86. At all relevant times the applicant denied his involvement in this crime. He gave an account of where, and with whom, he was at the relevant time, gave details of banking transactions he made over the relevant weekend and nominated the two offenders as his co-accused and one Yusil Arslan. The same person was nominated by the co-accused, Kym Christie as having been her co-offender and there was evidence before the jury that Arslan had left for overseas subsequent to being questioned by police and had not returned at the time of the appellant's trial. Further, when questioned by police, Arslan had denied any contact with Kym Christie in the two years prior to the offence although telephone records revealed that there had been several calls between them around the time the offence was committed. None of the applicant's assertions were negatived by any evidence led by the Crown. On the contrary, such investigations as were undertaken produced no evidence even inconsistent with the applicant's account. Arslan could not be eliminated as a suspect on any police investigation undertaken and Ms Le was never shown a photograph of him for the purpose of her saying whether he was in fact her assailant or not.

89. The task of this Court in determining whether, had there been a trial according to law, a verdict of guilty would still have been unsafe and unsatisfactory requires it to determine whether it considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the Court must pay full regard to the jury's function and to the benefit which it has had of having seen and heard the witnesses.[9]

92. In all the circumstances had the appellant been tried according to law and been convicted, such conviction would have been properly set aside by this Court as being unsafe and unsatisfactory. Having regard to the fact that the trial in fact miscarried it is appropriate that rather than direct a new trial this Court order that the applicant have leave to appeal, the appeal be upheld and that verdicts of acquittal be entered in respect of each of the counts on the presentment of which he was convicted.

96. The appellant was sentenced by Judge Lewitan, in respect of the seven counts of which he ought now be acquitted, to a total effective sentence of 5 years imprisonment of which he was ordered to serve 3 years and 6 months before becoming eligible for parole. This sentence was pronounced on 22 November 2002 on which date her Honour credited the appellant with 156 days of pre-sentence detention pursuant to s.18(4) of the Sentencing Act 1991.

99. On 20 October 2003 the appellant pleaded guilty before his Honour Judge Hart in the County Court to 4 counts on a further presentment containing five counts. They were counts of threatening to destroy or damage property, armed robbery, possessing a firearm whilst a prohibited person and handling stolen goods. They related to offences committed in July 2002. He also pleaded not guilty to a count of making a threat to kill upon which the Crown then lead no evidence.

102. On 12 December 2003 Judge Hart sentenced the appellant to imprisonment for one year, two and a half years, six months and one year respectively on the counts to which he pleaded guilty. He ordered cumulation of two months of each of the shorter sentences upon the two and a half years he imposed for the count of armed robbery, making a total effective sentence of 3 years imprisonment. He directed that one year of that sentence be served cumulatively upon the sentences imposed by Judge Lewitan on 22 November 2002 and fixed a new non-parole period of 3 years to commence on 12 December 2003. In the circumstances which confronted him Judge Hart was bound to fix a new single non-parole period to replace that fixed by Judge Lewitan[10]. He stated that had he not had to take Judge Lewitan's sentences into account, he would have fixed 2 years as the appropriate non-parole period. His Honour noted that the offences with which he was concerned were committed while the applicant was on bail awaiting the trial eventually conducted by Judge Lewitan. Thus s.16(3C) of the Sentencing Act 1991 was applicable so that, prima facie, his sentences would be required to be served cumulatively upon those imposed by Judge Lewitan. However, as is clear from His Honour's sentencing remarks, he considered that course inappropriate and modified the prima facie position created by s.16(3C) by directing such cumulation as he did.

105. As well as seeking to overturn his conviction by Judge Lewitan the applicant also seeks leave to appeal against the sentences imposed by Judge Hart in the event that has occurred, namely his being successful in his appeal against conviction in the first trial.

108. Whilst the applicant does not challenge the correctness of the sentences imposed by Judge Hart in respect of the four matters to which he pleaded guilty, imposed, as they were, in the context of his having been sentenced by Judge Lewitan, he submits that if he were to be successful in his appeal against the convictions entered by Judge Lewitan, the sentence fixed by Judge Hart, or at least the minimum term fixed by his Honour would need to be adjusted having regard to the provisions of s.11(3) of the Sentencing Act 1991. See R. v. Wenitong[11]. Furthermore, in the events which have happened, this Court is freed from the obligation to fix a single non--parole period under s.14 of the Sentencing Act 1991.

111. The applicant was arrested in respect of the charges to which he pleaded guilty before Judge Hart on 24 July 2002. He was, at that time, on bail for the earlier alleged offences. His bail was revoked and he was remanded in custody until his trial before Judge Lewitan which concluded with his being sentenced on 22 November 2002. During this period his incarceration was "doubly warranted" in that he was being held in custody on remand warrants relating to the offences on which he should now be acquitted and those subsequently dealt with by Judge Hart[12].

114. Since 22 November 2002 the applicant has been serving the sentence imposed by Judge Lewitan.

117. The fact that Judge Hart's sentences were, appropriately, inextricably intertwined with those of Judge Lewitan's, which are now to be set aside, this Court should exercise its functions under s.568(4) of the Crimes Act 1958 to review Judge Hart's sentence in the circumstances which now obtain. Having regard to the fact that Judge Lewitan has already taken the period which was "doubly warranted" into account in making the declaration she made pursuant to s.18(4) of the Sentencing Act 1991, and to the fact that the applicant served just over one year of Judge Lewitan's sentence which is now to be set aside, it is appropriate to re-sentence him in respect of the counts to which he pleaded guilty before Judge Hart. Such re-sentencing should take into account, not only the matters which Judge Hart took into account and which are mentioned in the transcript of the plea before him and his sentencing remarks, but also the fact that s.16(3C) of the Sentencing Act 1991 would have no application to the applicant in respect of these offences, Judge Lewitan's sentence having been set aside.

120. I propose that the individual sentences imposed by Judge Hart be left untouched but that there be no orders made for cumulation, thus resulting in a total effective sentence of two and a half years. There should be a minimum term fixed of one year, declared to have commenced on 12 December 2003 and there should be a declaration pursuant to s.18(4) of the Sentencing Act 1991 as to pre-sentence detention. Counsel have agreed that that period should be 156 days.

123. In his sentencing remarks Judge Hart recognised the possibility of there having to be an adjustment of his orders in the event the applicant was successful on this appeal. In anticipation, he reserved liberty to apply pursuant to s.18(7) of the Sentencing Act 1991 to correct the declaration as to pre-sentence detention in those orders. In the circumstances that reservation of leave will now be ineffective if this Court makes the declaration which I propose.

1. That the applicant have leave to appeal his convictions recorded on 22 November 2002 on presentment no. C 0102188.2 by the County Court (Judge Lewitan); that such appeal be heard instanter and allowed and that verdicts of acquittal be entered in respect of all counts on that presentment.

2. That the applicant have leave to appeal against the sentences imposed by the County Court (Judge Hart) on 12 December 2003 in respect of presentment no. Q 01639282.1; that such appeal be heard instanter and allowed and that the orders for cumulation made by Judge Hart be set aside resulting in a total effective sentence of two and a half years; that it be ordered that the applicant serve a minimum of one year before being eligible for parole; that such sentence be taken to have commenced on 12 December 2003 and that there be a declaration pursuant to s 18(4) of the Sentencing Act 1991 that there has been a period of pre-sentence detention served by the applicant of 245 days in respect of those sentences up to today and that this declaration and its effect be entered in the record of the Court.

[1] [1995] HCA 30; (1995) 69 ALJR 612

[2] [1992] HCA 56; (1992) 175 CLR 495 at 502-503

[3] [1936] HCA 23; (1936) 55 CLR 367 at 375

[4] [1963] HCA 44; (1963) 110 CLR 234 at 243

[5] [1995] HCA 30; (1995) 69 ALJR 612 at 614b

[6] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 per Fullagar J at 514.

[7] [1990] HCA 51; (1990) 171 CLR 207.

[8] [1994] HCA 63; (1994) 181 CLR 487.

[9] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 per Mason CJ, Deane Dickson and Toohey JJ.

[10] s.14 Sentencing Act 1991

[11] [2001] VSCA 162

[12] R v Renzella [1997] 2 VR 88 at 96-7