Regina v Adam

COUNSEL : CK Maxwell QC/GE Smith - Crown P Byrne SC/SJ Odgers - Appellant SOLICITORS : R Gray - Crown Murphy's Lawyers Inc - Appellant CATCHWORDS : Criminal law and procedure - evidence within principles in O'Leary v The King - evidence of consciousness of guilt - lies - accessorial liability - whether verdict unreasonable and cannot be supported DECISION : Appeal allowed

THE COURT OF CRIMINAL APPEAL 60016/99 60079/99 SPIGELMAN CJ JAMES J BELL J

Friday 23 July 1999 REGINA v Richard ADAM JUDGMENT 1 THE COURT: On 24 December 1998 after a trial conducted in the Supreme Court before Wood CJ at CL and a jury Richard Adam was found guilty of maliciously inflicting grievous bodily harm on David Carty, an off-duty police officer, on 18 April 1997. On 22 February 1999 Wood CJ at CL sentenced Richard Adam to a sentence of penal servitude for two years eight months, consisting of a minimum term of two years commencing on 24 December 1998 and an additional term of eight months. After being arrested on 19 July 1997, Richard Adam had been released on bail on 21 July 1997 and had remained at liberty until the jury returned its verdict of guilty. Richard Adam (who we will henceforth refer to as "the appellant") appealed against the conviction and sentence imposed by Wood CJ at CL. The Director of Public Prosecutions brought a Crown appeal against the sentence imposed on the appellant. 2 At the trial the appellant had been indicted on charges of murdering David Carty and of maliciously inflicting grievous bodily harm on David Carty with intent to inflict grievous bodily harm. The jury found the appellant not guilty of these charges and also declined to find the appellant guilty of the manslaughter of David Carty. 3 The appellant stood trial with a co-accused, his brother Gilbert Adam. The jury found Gilbert Adam guilty of the murder of David Carty. Wood CJ at CL sentenced Gilbert Adam to a sentence of penal servitude of twenty-eight years, consisting of a minimum term of twenty-one years commencing on 17 July 1997 and an additional term of seven years. Gilbert Adam had been continuously in custody since being arrested on 17 July 1997. Gilbert Adam appealed against his conviction and sentence and the appeals of the appellant and Gilbert Adam were listed for hearing together by the same Bench of this Court. The Court heard the appeals involving Richard Adam first, reserving its decision, and then heard the appeals involving Gilbert Adam.

Crown Case 4 The basic facts according to the Crown case against the appellant can be briefly outlined as follows. 5 At about midnight on 17 April 1997 a number of police officers, after finishing their shifts, went to the Cambridge Tavern in Fairfield for some drinks. At about the same time a group of young men of Assyrian origin, who included some of the witnesses called by the Crown at the trial, also went to the Tavern. A little later, a separate group of somewhat older Assyrian men, including the appellant and Gilbert Adam, arrived at the Tavern. 6 At about 2.15 am the last police officers remaining at the Tavern, who included David Carty and a female officer Michelle Auld, left the bar in which they had been drinking and went to their vehicles, which were parked in the car park of the Tavern. Several of the young Assyrians, who included a man named Thaier Sako, approached David Carty, as he was standing alongside his vehicle, and formed a semicircle around him. One of the group pushed Carty and Carty pushed him back. All of the other persons in the group then surged forward. Michelle Auld saw one of the group, who she could not later identify, strike David Carty. She saw a look of horror on David Carty's face and a large quantity of blood spurt from his chest. This episode during which David Carty was wounded in the chest was referred to at the trial as the first phase of the attack on David Carty. It was the Crown case that the group of Assyrian males around David Carty in the first phase of the attack included Gilbert Adam. However, it was not alleged by the Crown that the group included the appellant. 7 Michelle Auld, realising that David Carty was in serious trouble, got out of her car and ran into the Tavern. She made an emergency telephone call to the Fairfield Police Station. 8 Shortly before David Carty was stabbed, Thaier Sako had, somehow or other, been stabbed in the neck. It is not known who stabbed Thaier Sako but it is clear that it was not David Carty. After having been stabbed, Thaier Sako retreated towards the Tavern and collapsed outside the door to one of the bars of the Tavern, bleeding heavily. Some of those inside the Tavern, who included Richard Adam, became aware of the disturbance in the car park and came to believe, wrongly, that it was David Carty who had stabbed Thaier Sako. A number of these people went out into the car park and joined in kicking and punching David Carty. 9 After making the telephone call to Fairfield Police Station, Michelle Auld ran out of the Tavern into the parking area. She saw David Carty lying on the ground and a number of Assyrian men kicking Carty's body. Some of the men were also punching Carty. Auld ran to the assistance of Carty and was herself assaulted. The part of the attack on Carty in which after he had been stabbed, a number of persons joined in kicking and punching him, part of which was witnessed by Auld after she had made the telephone call, was described at the trial as the second phase of the attack on David Carty. 10 Police and ambulance officers began arriving at the Tavern from about 2.30 am. David Carty was still alive, but only just, and he died soon afterwards. The cause of death was a deep stab wound through the sternum, penetrating the front and the back of the aorta. He had also suffered multiple slash wounds to his head and back and multiple abrasions and bruising, which were consistent with him having been kicked. 11 It was the Crown case that the appellant was one of the group around David Carty in the second phase of the attack. The Crown case on all charges against the appellant was put on two alternative bases, that he was guilty by reason of his own acts in assaulting David Carty during the second phase of the attack or that he was guilty by reason of having acted in concert with others who had assaulted David Carty in the second phase of the attack. The two bases of liability can be conveniently referred to as "direct liability" and "accessorial liability". 12 On the charge of murder against the appellant, the trial judge directed the jury that they could not find the appellant guilty of the murder of David Carty, unless inter alia they were satisfied beyond reasonable doubt that acts during the second phase of the attack, for which the appellant was liable either on the direct basis or on the accessorial basis, had accelerated the death of David Carty by an amount which was more than merely minimal or trivial. According to the medical evidence, David Carty's death was likely to have occurred within ten minutes of his having suffered the stab wound in the first phase of the attack on him and the chances of saving David Carty by medical treatment were, for all practical purposes, non-existent. In the light of the medical evidence and the direction given by the trial judge, it was not surprising that the jury found the appellant not guilty of the murder of David Carty. 13 At the trial no witness gave evidence that he saw a person who he identified as the appellant kicking or striking David Carty. However, the Crown sought to rely on a combination of (i) evidence by some witnesses which, it was said, showed, that the appellant had joined a group around David Carty in the second phase of the attack and (ii) evidence by other witnesses which, it was said, showed that all members of the group around David Carty in the second phase of the attack were involved in assaulting him. Apart from this evidence, the Crown also relied on a number of pieces of evidence which, it alleged, showed consciousness of guilt on the part of the appellant, including evidence of lies, evidence of flight and evidence of conduct intended to discourage potential witnesses from speaking to the police; evidence of blood stains on the shoes the appellant was wearing on the night of 18 April 1997; and evidence of scratches on the appellant's neck. It will be necessary to refer to this evidence in much greater detail in dealing with some of the grounds of appeal. 14 After this brief summary of the Crown case against the appellant at the trial, we can turn to the grounds of appeal against conviction which were relied on by the appellant in written submissions and in oral submissions at the hearing. These grounds of appeal were not the same as the grounds given in the appellant's notice of appeal but the Crown raised no objection to the grounds in the submissions on behalf of the appellant being argued. 1. The trial judge erred in failing to direct the jury that they should not engage in tendency reasoning from evidence that the appellant acted aggressively in the Cambridge Tavern. 15 The evidence referred to in this ground of appeal was evidence given by the witness Tony Bakos and Dennis Oshana. These two witnesses were members of the group of younger Assyrians who had gone to the Tavern. 16 Tony Bakos gave evidence that in the karaoke bar of the Cambridge Tavern, at some indeterminate time before the first stage of the attack on David Carty, Dennis Oshana said to him, "I don't know what he's staring at me for" (referring to the appellant) and that when Tony Bakos looked at the appellant, the appellant was staring at Oshana. Subsequently, Oshana started staring at the appellant. The question asking Bakos whether he looked at the appellant, after hearing what Oshana said, was objected to by counsel for the appellant on the ground of relevance. The Crown Prosecutor submitted, "it is relevant as to attitude and state of mind of Richard" and the question was allowed. 17 Dennis Oshana gave evidence in chief that in the karaoke bar of the Cambridge Tavern he had had an argument with Gilbert Adam, and not the appellant, who he did not think was in the bar at the time of the argument. Gilbert Adam had stared at him. Oshana said in evidence that he thought he had been stared at, because he had sworn in front of the woman who was running the karaoke bar. (a woman from the Philippines named Marilou Capuyan) 18 However, in cross-examination by counsel for Gilbert Adam, Oshana said that he had been mistaken in saying that it was Gilbert Adam with whom he had had an argument and who had stared at him. He said it had been the appellant with whom he had had some kind of argument and who had stared at him. 19 In his closing address the Crown Prosecutor referred to the evidence of "a staring argument" between Dennis Oshana and Richard Adam, in the same context as evidence of the appellant Gilbert Adam having jumped over the bar in the karaoke bar, when it closed at about half past one. The Crown Prosecutor made a submission about the appellant and Gilbert Adam "there is aggressiveness, it is not as if they are just peace loving types". 20 On the hearing of the appeal it was submitted on behalf of the Crown that the evidence by Bakos and Oshana of the appellant Richard Adam staring at Oshana was admissible, on the ground relied on by the Crown Prosecutor at the trial that it was evidence of a state of mind of Richard Adam at a time sufficiently proximate to the time of the alleged offence to be capable of tending to show what was Richard Adam's state of mind at the time of the alleged offence. It was also submitted that the evidence was admissible under the principle in O'Leary v The King (1946) 73 CLR 566, that the conduct of the appellant Richard Adam formed an integral part of a "transaction" consisting of connected events, including both phases of the attack on David Carty. 21 On the hearing of the appeal counsel for the appellant expressly refrained from submitting that the evidence of Bakos and Oshana about the appellant staring was inadmissible. The ground taken and adhered to was, not that the trial judge had erred in admitting the evidence, but that the trial judge had erred in not giving a direction about the evidence. 22 The principal submissions which were made by counsel for the appellant were that the evidence of Bakos and Oshana was "tendency evidence" falling within Pt36 of the Evidence Act and that such evidence was not admissible to prove that Richard Adam had a tendency to act in a particular way or to have a particular state of mind, because the conditions under s97(1)(b) and s101(2), which would have to be satisfied before the evidence could be used for this purpose, were not satisfied and accordingly a direction that the evidence was not to be used for this purpose should have been given (s95). It was also submitted that the principle of admissibility of evidence stated in O'Leary v The King had been abolished by the Evidence Act 1995 . 23 In O'Leary v The King Dixon J said at 577-8:- "Without (the evidence in question) the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide". 24 The principles stated in O'Leary v The King continued to apply at common law (see for example Harriman v The Queen (1989) 167 CLR 590 at 628-630 per McHugh J), although courts sometimes stressed the limits of the principle and the principle was distinguished from the illegitimate so-called principle of "completeness" ( Thompson v The Queen (1968) 117 CLR 313 at 317; Driscoll v The Queen (1977) 137 CLR 517 at 533; R v Murray & Bates (unreported Court of Criminal Appeal 6 April 1992). 25 We do not consider that the principle in O'Leary v The King has been abolished by the Evidence Act. Section 9(1) of the Evidence Act provides that the Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except so far as the Act provides otherwise expressly or by necessary intendment. The Act does not expressly provide that the principle is abolished. Nor do we consider that the Act so provides "by necessary intendment". 26 A submission was put that evidence which was admissible only under the principle in O'Leary could not satisfy the test of relevance in s55 and hence under s56 would not be admissible. Reference was made to the decision of McLelland CJ in Eq in Telstra Corporation v Australian Media Holdings (1997) 41 NSWLR 346, in which his Honour gave consideration to whether certain provisions in Pt 310 of the Evidence Act relating to client legal privilege were inconsistent with common law principles on which one of the parties sought to rely. However, in our opinion, evidence which properly falls within the principle as stated by Dixon J in O'Leary would be evidence that "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" and hence would satisfy the test of relevance in s55 of the Act.

27 If evidence of the appellant staring at Dennis Oshana was an integral part of a connected series of events happening on the night of 18 April 1997, which included the assaulting of David Carty and which could not be truly understood without reference to the evidence (that is, if the evidence came within the O'Leary principle) or if the evidence of the appellant staring at Dennis Oshana was evidence of conduct by the appellant at a time sufficiently proximate to the time of the alleged assaulting of David Carty to permit an inference to be drawn that the appellant had the same continuing state of mind at the time of the alleged assaulting of David Carty as he had at the time of the staring, then such evidence would not, in our opinion, be tendency evidence within Pt36. 28 The relevant parts of the Reports of the Australian Law Reform Commission, which preceded the enactment of the Commonwealth and New South Wales Evidence Acts (see Report No 26 "Evidence" Vol1 especially pars 400-402 and Vol2 especially pars 169-171 and Report No.38 "Evidence" especially pars 175 and 176) indicate that Pt36 of the Evidence Act dealing with "tendency and coincidence" was intended to deal with what was described at common law as "propensity evidence" or "similar fact evidence". 29 At par169 of Vol2 of Report No 26 the Commission, after referring to the decision of the Privy Council in Makin v Attorney General for New South Wales (1894) AC 57, quoted a passage in the judgment of Gibbs ACJ (Stephen Jacobs and Aickin JJ concurring) in Markby v The Queen (1978) 140 CLR 108 at 116:- "The first principle, which is fundamental, is that evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition".

Propensity evidence and similar fact evidence at common law could, of course, include conduct by an accused person which did not amount to a crime. 30 The reference by the Commission to Makin v The Attorney General and the quotation from the judgment of Gibbs ACJ in Markby and the references in the Reports to evidence of "previous misconduct" or "past misconduct" or "conduct on some other occasion" indicate, in our opinion, that the Commission was addressing evidence of conduct by an accused person "in the past", being conduct on some other occasion than the occasion on which the conduct charged occurred, tending to show that the accused had a particular propensity or disposition or inclination. Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person "in the past" or evidence tending to show that he has a particular "disposition" or "propensity" or "inclination" and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required). 31 In the present case a serious question would arise whether evidence that at some indeterminate time before the assaulting of David Carty the appellant had stared, even if in a hostile manner, at some person other than David Carty inside the Cambridge Tavern, would be admissible on either of the bases advanced by the Crown or whether the Crown was really seeking to use the evidence as evidence of a tendency or disposition or propensity on the part of the appellant. However, during the hearing of the appeal the court's attention was drawn to a direction the trial judge in fact gave the jury, which was in the following terms:- "He (Tony Bakos) described some staring between Dennis and Richard, which was calmed down by Thamir. That matter, members of the jury, really is of no moment in this trial. You should not draw any inference from it. Its only relevance, I suggest to you, is it might be important in relation to identification as to who was in the bar, particularly having regard to Dennis Oshana, who I will come to a little later. It would be unfair to assume that there was any form of aggression or aggravation on the part of anybody who stared at Dennis, who, on his own account, had sworn in front of a female and no doubt was properly chipped". 32 This direction would have been sufficient to prevent the jury engaging in any kind of illegitimate reasoning based on the evidence of staring. 33 We would reject the first ground of appeal.

2. The trial judge erred in his directions regarding alleged evidence of consciousness of guilt. 34 The ground of appeal actually argued by counsel for the appellant on the appeal was, not that there was any error in the directions given by the trial judge about the evidence relied on by the Crown as being evidence of consciousness of guilt, but that the trial judge had erred in leaving various items of evidence to the jury as being evidence capable of being regarded by them as evidence of consciousness of guilt. 35 At the trial the Crown relied on and the trial judge left to the jury four types of evidence as being evidence capable of being regarded by the jury as evidence of consciousness of guilt. These four types of evidence were:-

(i) Evidence of lies 36 When interviewed by the police on 18 April 1997 and 16 June 1997 the appellant said that he had not seen any person on the ground of the car park of the Cambridge Tavern, apart from one Assyrian (interview of 18 April 1997 questions and answers 94-96; interview of 16 June 1997 question and answer 185) and that he had not gone anywhere near a police officer lying in the car park of the Cambridge Tavern (interview of 18 April 1997 question and answer 192). 37 It was submitted on the hearing of the appeal that both these assertions by Richard Adam had been left to the jury as being lies capable of showing consciousness of guilt. However, it would seem that the trial judge left to the jury as a matter capable of amounting to a lie told in consciousness of guilt, only the denial by Richard Adam of going anywhere near David Carty (see summing-up p188).

(ii) Evidence of Flight 38 The Crown relied on:-

(a) Evidence by Tony Bakos that after the assaulting of David Carty he walked to a service station and at the service station he saw the appellant and his brother, that Gilbert Adam said "let's go" and that Richard Adam walked back towards the Cambridge Tavern (trial transcript p713-714) and evidence by Dennis Oshana that he had walked away from the car park, that the appellant and Gilbert Adam were walking behind him at a "normal pace", that he had overheard some conversation between the appellant and Gilbert Adam about a knife and that one out of the appellant and Gilbert Adam, he thought the appellant, had "walked back".

(b) Evidence by a Mr McQuillan, an agent of the Australian Federal Police, who on the night of 18 April 1997 happened to be at the Fairfield Police Station and who, after Michelle Auld had made her emergency call, accompanied New South Wales police to the Cambridge Tavern. Agent McQuillan gave the following evidence:- "I saw a male person wondering around who told me that his name was Richard. He was definitely Arabic. He had short black hair and was wearing a grey round neck jumper. He was grinning and walking around. Prior to the crime scene tape being put out, I saw that he had driven a motor vehicle into the Tavern car park. He parked his vehicle in the next space to the right of the vehicle where the knife was located". 39 It was part of the Crown case that Richard Adam had returned to the car park and had moved his vehicle, which was parked in the car park, a short distance within the car park. It seems also to have been part of the Crown case that it should have been inferred that the appellant would have driven out of and away from the car park, if that course had not been prevented by the arrival of police officers.

(iii) Evidence of conduct of Richard Adam on 18 April 1997 discouraging potential witnesses from speaking to the police. 40 A police officer, Acting Inspector Dossantos, gave evidence that he went to the Cambridge Tavern on the night of 18 April 1997. Inspector Dossantos decided that a number of persons in the car park should be placed inside the Tavern, to await the arrival of further detectives who would interview them. 41 Dossantos gave evidence that he observed a male person push another person in the back violently, forcing the other person against a wall and that he heard the male person say to the other person "you shut up, you understand". Dossantos did not identify the "aggressor" but said he was "thirty to thirty-five years old, medium build, short brown hair, moustache, wearing a dark coloured jumper, with fresh scratches on the right side of his neck". This description generally fitted the appellant. 42 When he was interviewed on 18 April 1997, the appellant admitted that at the Tavern that night a police officer had accused him of "pushing". The appellant did not admit that he had pushed anyone or that he had told anyone to "shut up". 43 The Crown case was that the person who had pushed another person and told him to "shut up" was the appellant and that the appellant had so acted out of consciousness of his own guilt, to discourage the other person from speaking to the police.

(iv) Various items of conduct by the appellant after 18 April 1997, which were testified to by a witness Mrs Salwa, who was a cousin of the appellant and his brother. 44 Mrs Salwa gave evidence that:- (a) Three days after Gilbert Adam had come alone to Mrs Salwa's house and had asked Mrs Salwa to hide the pants that he had been wearing on the night of 18 April 1997, Gilbert Adam and the appellant came to Mrs Salwa's house. The appellant suggested that Gilbert Adam's pants be burnt at their sister's house at Bonnyrigg. However, Gilbert Adam said that the pants should be burnt at Mrs Salwa's house. The pants were burnt at Mrs Salwa's house and the ashes put down the toilet at her house.

(b) The appellant told Mrs Salwa "don't say nothing" to the police. He said this "too many times". The appellant told Salwa "don't say anything on the telephone because the telephone might be censored". The appellant told Mrs Salwa that if anyone asked her anything about what had happened at the Tavern, she should say that she did not know anything. 45 The trial judge dealt with the evidence allegedly showing consciousness of guilt by the appellant in two separate parts of the summing-up. As we have already noted, it was not submitted that the directions his Honour gave were deficient in any respect. 46 At pp22-25 the trial judge gave general directions about evidence of consciousness of guilt. The trial judge dealt first with lies and then with the other conduct relied on as showing consciousness of guilt. 47 In relation to lies, the trial judge gave inter alia the following directions:- "So the Crown must then, first of all, prove a deliberate lie was told by the accused. Secondly, you have to be satisfied beyond reasonable doubt that the lie related to a material matter. That is, a matter which is centrally connected with the alleged offence. It has to be something which goes to an important or significant event, not some peripheral matter, but something which is a central event in the Crown case. Third, the Crown must prove that there was no reason for telling the lie, other than a fear or belief that the truth would implicate the accused in the offence. In other words, the Crown must establish that the accused knew that the truth would implicate him in the offence and he told a lie to escape that consequence. Now, I point out here again, as a matter of experience of trial judges, that persons sometimes do tell lies, even about the most important or central matters, for reasons other than a fear of that kind or other than an awareness of their own guilt. People sometimes tell lies out of panic, or out of fear of being wrongly accused or suspected of a crime. Sometimes they may tell a lie to protect another person who was guilty of the offence. Sometimes they tell lies to cover up some other misconduct or offence, other than the matter charged". * * * "It is for the Crown to eliminate any reasonable possibility than the accused in this case told a lie for any reason, other than the fear of the truth. As I pointed out to you previously, it is important always to determine whether the lie was deliberate or not, because unless it is a deliberate lie, it doesn't even begin to qualify. I will come back to that when I look at the individual lies which the Crown says here add to its case". 48 In relation to the other conduct relied on by the Crown as showing consciousness of guilt, the trial judge said at p25 of the summing-up:- "I began this discussion by saying we would look at conduct as well which might reveal a consciousness of guilt. In this case, as I understand the Crown case, there are three areas of conduct which fall into this category. First of all, the Crown suggests that the accused did leave the scene to avoid, obviously, being detected there and possibly interviewed and arrested. Secondly, it suggests that the accused Gilbert did destroy some material evidence in the form of his clothing, or at least possible evidence in the form of his clothing. Third, it suggests that some threats were made by one or other of the accused to potential witnesses. Those three things, the Crown says, all point towards a fear of the truth and a consciousness of guilt of a similar kind to that which arises concerning lies.

Again, similar considerations apply. Before you take any of these matters into account as showing a consciousness of guilt, you have to be satisfied beyond reasonable doubt that the particular conduct did occur as the Crown alleged, and you must also be satisfied that the sole reason for it was an awareness of guilt, or a fear of the truth otherwise emerging, and not some other explanation such as panic or fear of being wrongly accused or to protect someone other than himself". 49 In a later part of the summing-up the trial judge summarised the Crown case against Richard Adam. In this part of the summing-up the trial judge said with respect to the evidence of flight:-

"It (the Crown case against the appellant with respect to his alleged flight) depends upon you accepting Bakos and Oshana that, walking away from the scene, they saw Gilbert and Richard and that Richard walked back. The Crown suggestion being that he was making his way from the scene by way of flight, but then realised he had a problem, in that his car was still there and he had to go back and get it, otherwise there could be some difficulty for him with the police if his car, effectively, was abandoned there. Because no doubt, it being registered in his wife's name, some questions would be asked which may go back to him" 50 A little later in the summing-up the trial judge said with respect to the evidence of lies:- "The Crown does rely upon that denial, as I have pointed, of going anywhere near David Carty, both as a lie and as a matter going to his guilt". 51 Shortly afterwards in the summing-up the trial judge said with respect to the evidence given by Acting Inspector Dossantos:- "Another matter which the Crown relied upon in relation to Richard was the evidence of Dossantos that he pushed a man in the hotel and told him to keep quiet. The description Dossantos gave, the Crown suggested, fitted Richard; 30 to 35, medium build, short brown hair, moustache, dark jumper, scratches on his neck. The Crown invited you to infer that the reason for that was to discourage that witness talking, because of the fear that that witness might implicate him, Richard, in this incident. We need to be cautious about that. First of all you have to be satisfied that Dossantos did identify the right man. You also have to be satisfied that he was protecting himself, not trying to protect someone else, because unless he was protecting himself, then you really can't infer consciousness of guilt on his part, from it. You also bear in mind although he admitted he was the person to whom police spoke about this act, he did, in fact, deny pushing anybody, so you can't infer from that actual conversation, or interview, that he actually did push another witness". 52 As regards Mrs Salwa's evidence (and brief evidence given by her husband) the trial judge said:- "Joining in the burning of the clothes and the threats to Salwa and the warning about the phone and the bugging and the instruction not to tell them about anything after the car was examined, are matters the Crown relies upon as indicative of consciousness of guilt on the part of Richard". 53 The trial judge continued:- "For all these things I give you the similar caution as I gave a moment ago, that some of these things may be as consistent with trying to protect Gilbert, as himself. You cannot infer consciousness of guilt unless you are satisfied, beyond reasonable doubt, that when he did any of these things, if he did do them, or had any of these conversations, that he was doing so because of the consciousness of his own guilt, as distinct from trying to protect Gilbert. It would not be enough for you to weigh against Richard, if there was a reasonable possibility that what he was doing was protecting Gilbert". 54 In directing the jury to the effect that before any lie or any other conduct on the part of the appellant could be used as evidence of consciousness of guilt, the jury would have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in and would also have to be satisfied beyond reasonable doubt that the lie was told or the conduct was engaged in solely out of consciousness of his own guilt and not for any other reason, the trial judge's directions may have been unduly favourable to the appellant. In the leading High Court decision of Edwards v The Queen (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ said at p210:- "Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt". 55 Since Edwards it has been repeatedly held by this Court that "where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt" ( R v Taylor (unreported 18 April 1995 at p19 per Hunt CJ at CL, citing R v Dellapatrona (1993) 31 NSWLR 123 at 150; R v Sandford (1994) 72 A Crim R 160 at 181: R V Small (1994) 33 NSWLR 575 at 596. 56 In R v Moore (unreported Court of Criminal Appeal 21 June 1995) Gleeson CJ said at p16:- "Furthermore, the directions which Wood J gave to the jury on this matter went very close indeed to telling the jury that they had to be satisfied, beyond reasonable doubt, that there had been a lie told from a consciousness of guilt, before they could add this to the circumstantial case against the appellant. The directions contained references to that being the only rational inference available. In this respect, the directions may have been unduly favourable to the appellant". 57 We are conscious, and his Honour may well have had in mind, that some doubt has been thrown on the proper standard of proof of some items of circumstantial evidence by the recent decisions of the High Court in Gipp v The Queen (1998) 72 ALJR 1012 and Penney v The Queen (1998) 72 ALJR 1316. 58 The principal submission made by counsel for the appellant in support of this ground of appeal was that the trial judge should not have left any of the various items of evidence to the jury as being capable of constituting evidence of consciousness by the appellant of his guilt, because another explanation of his actions, that he had acted as he had done, out of consciousness of the guilt, not of himself, but of his brother Gilbert, was available and so plausible that it would not have been open to the jury to be satisfied, particularly to the standard of proof beyond reasonable doubt required by the trial judge's directions, that the appellant had acted out of the consciousness of his own guilt. 59 Reference was made in the course of argument to a passage in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards at pp212-213, where their Honours said:- "Whilst in many cases it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence". 60 It was properly conceded by counsel for the appellant that the mere availability of another explanation for an accused's conduct will not prevent a trial judge leaving evidence of the conduct to the jury as being evidence capable of amounting to evidence of consciousness of guilt. It was also conceded that the trial judge in the summing-up had strongly directed the jury that they could not use evidence of conduct by the appellant as evidence of consciousness of guilt, unless they were satisfied that the reason for the conduct was an awareness of his own guilt and not some other explanation, in particular a desire to protect some person other than himself, namely his brother Gilbert. 61 In our opinion, the assertion by Richard Adam to the police in the answer to question 192 of the interview of 18 April 1997 to the effect that he had not gone anywhere near a police officer lying in the car park was capable of constituting evidence of consciousness of guilt and was properly left to the jury. It is significant that in the immediately preceding questions the appellant had been asked about spots of blood which had been found on his shoes, which might be capable of incriminating him personally in the assaulting of David Carty. As we have indicated earlier, the alleged lie that the appellant did not see anyone on the ground in the car park of the Cambridge Tavern, apart from an Assyrian, was not in fact left to the jury as conduct of the appellant capable of amounting to consciousness of guilt. 62 The evidence relied on by the Crown as being evidence of flight, that the appellant was observed walking away from the car park with his brother "at a normal pace", being with his brother at the service station and walking back to the car park and moving his car a short distance within the car park was, in our opinion, so deficient in establishing that there was any "flight" at all or that the reason for any flight was consciousness of his own guilt, and not consciousness of his brother's guilt, that it should not have been left to the jury as evidence of consciousness of guilt. 63 As regards the evidence by Inspector Dossantos, there is an initial question whether it would be open to the jury to find that the person who pushed another person and told that other person to "shut up" was the appellant. In our opinion, it would have been open to the jury to make such a finding, on the basis of the description of the person given by Dossantos (including the recent facial scratches), which fitted the appellant and the admission by the appellant that a police officer had told him to stop pushing (even if the appellant did not admit that he was pushing). We are also of the opinion that this evidence was properly left to the jury as capable of amounting to evidence of consciousness by Richard Adam of his own guilt. 64 With regard to the evidence by Mrs Salwa that three days after Gilbert Adam had come alone to Mrs Salwa's house and asked Mrs Salwa to hide the pants he had been wearing on the night of 18 April 1997, the appellant had come with Gilbert Adam to Mrs Salwa's house and had participated in the burning of Gilbert Adam's pants, an explanation for the appellant's conduct that he was acting to protect his brother was so plausible that it would not have been open to the jury to regard the appellant's conduct as showing consciousness of his own guilt and accordingly this evidence should not have been left to the jury as capable of showing consciousness of guilt on the part of the appellant. On the other hand, the appellant's conduct in telling Mrs Salwa not to say anything was, in our opinion, capable of constituting conduct engaged in out of consciousness of his own guilt and was properly left to the jury. 65 We have held that the evidence of "flight" and the evidence of participation by Richard Adam in the burning of his brother's pants should not have been left to the jury as capable of amounting to evidence of consciousness of guilt. However, we do not consider that there was any miscarriage of justice or any risk of any miscarriage of justice, because these items of evidence were left to the jury. The directions given by the trial judge to the jury, which as we have observed may have been unduly favourable to the appellant, and which the jury must be taken to have followed, were such that there was no real risk of the jury finding that any of these items of evidence showed a consciousness of guilt on the part of the appellant. 66 We would reject this ground of appeal.

(3) The trial judge erred in failing to give a direction about the application of the standard of proof in a substantially circumstantial case. 67 It was submitted that the Crown case against the appellant was a substantially circumstantial case, even if it was not a wholly circumstantial case. 68 We accept that the Crown case was circumstantial, insofar as it depended on conduct by the appellant allegedly showing consciousness of guilt, blood stains on the appellant's shoes and scratches on his neck. However, as we have already indicated, while no single witness identified the appellant as having been a person who participated in the second stage of the attack on David Carty, an important part of the Crown case consisted of combining the direct evidence of two classes of witnesses, that is witnesses who gave evidence tending to prove that the appellant was one of the group of persons around David Carty in the second stage of the attack and other witnesses who gave evidence tending to show that all persons in the group around David Carty were participating in the second stage of the attack. The combining of the two sets of direct evidence did not constitute circumstantial evidence. However, even in a case which is not fully circumstantial, some kind of circumstantial evidence direction may be appropriate. 69 The principal submission made by counsel for the appellant in support of this ground can be summarised as follows. The case against Richard Adam on the charge of maliciously inflicting grievous bodily harm was put on the two alternative bases, of direct liability and accessorial liability. It was submitted that the appellant would not have been liable on the accessorial basis, unless he was not merely present when other persons were inflicting grievous bodily harm on David Carty, even if his presence was not "accidental", but was also intentionally encouraging or assisting the parties assaulting David Carty. Mere presence as a bystander would be insufficient to incur criminal liability. Counsel referred to R v Clarkson (1971) 3 All E R 344 and R v Doorey & Gage (1970) 3 NSWLR 351. 70 The principle that a person who is present at the commission of a crime is not liable as an accessory, unless he intentionally assists or encourages the principal offender to commit the crime, has been recognised in later decisions of this Court (see for example R v Stokes & Difford (1990) 51 A Crim R 25). 71 In the present case, the defence case which was put at the trial and which was based on answers given by the appellant when he had been interviewed by the police, was that he had not gone anywhere near David Carty, and had not joined any group of persons around David Carty. However, insofar as the Crown relied on the alternative, accessorial basis of liability, it was submitted that there was a real issue whether, even if the jury were satisfied that the appellant had gone over to David Carty and had joined the group around David Carty, the appellant was any more than a mere bystander who was not intentionally assisting or encouraging those participating in the assaulting of David Carty. The trial judge, it was submitted, was required to put this issue to the jury, even though it was not in accordance, and was indeed inconsistent, with the case which had been put to the jury by counsel for the appellant. Pemble v The Queen (1971) 124 CLR 107 especially at 117-118 per Barwick CJ. 72 The particular direction, which it was submitted that the trial judge should have given, would have been a direction to the effect that the jury should not find the appellant guilty, unless they were satisfied that there was no reasonable inference or hypothesis consistent with the innocence of the appellant, including that he had merely been a bystander not intentionally assisting or encouraging those assaulting David Carty. It was submitted that no forensic disadvantage would have flowed to the appellant from the giving of such a direction by the trial judge. 73 As the judgment of Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 578 makes plain, there is no invariable rule of practice or rule of law that a circumstantial evidence direction should be given in every case involving circumstantial evidence. In the present case, we are satisfied that the directions which were given by the trial judge were sufficient to instruct the jury that on the accessorial basis of liability the jury would have to be satisfied that the appellant was not merely present but was intentionally assisting or encouraging those inflicting grievous bodily harm on David Carty. 74 At p31 of the summing-up the trial judge instructed the jury as follows:- "A person will participate in that form of joint criminal enterprise if that person is present at the time when the crime is committed and, with knowledge that the crime is to be or is being committed, intentionally assists or encourages the other participant to commit the crime. The presence of the person at the time when the crime is being committed, and the readiness to give aid or encouragement is sufficient to amount to participation of the kind required at law". 75 The trial judge also gave the jury written directions in which he included as an element of the second basis of liability:- "Knowing that the others were going to assault David Carty, he assisted or encouraged them in those acts, either by his own actions or words or by displaying a readiness to give aid if required". 76 At other points in the summing-up the trial judge directed the jury that the Crown had to do more than merely prove that the appellant was present "as a disinterested observer" and that no criminal responsibility attaches to a person "who just happens to be a bystander or a disinterested, impartial onlooker who is simply not part of any arrangement and who simply is not providing encouragement or flagging an intention and willingness to assist". 77 We would reject this ground of appeal.

4. The conviction is unreasonable, cannot be supported, unsafe and unsatisfactory. 78 This ground of appeal is referred to in the decisions of the High Court in M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and Fleming v The Queen (1998) 73 ALJR 1 and is properly described, in the terms of s6(1) of the Criminal Appeal Act, as being that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence or that there has been a miscarriage of justice. The principles to be applied in determining an appeal on such a ground, which used to be described as being that the verdict of guilty was unsafe or unsatisfactory, were stated or referred to in M v The Queen at 492-494 by Mason CJ, Deane Dawson and Toohey JJ and in Jones v The Queen at 450-451 by Gaudron, McHugh and Gummow JJ. In Jones Gaudron, McHugh and Gummow JJ said at 450-451:- "In M , Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe and unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that 'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations'. The majority judges explained the application of the test as follows:- 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'". 79 As we have already stated, the Crown case on all charges against the appellant was put on two alternative bases, namely:- (i) Direct liability, that is the appellant was guilty by reason of his own acts in assaulting David Carty during the second phase of the attack on David Carty, or

(ii) Accessorial liability, that is that the appellant was guilty by reason of acting in concert with others who were assaulting David Carty in the second phase of the attack. 80 It was submitted by counsel for the appellant that the jury's verdict that the appellant was guilty of maliciously inflicting grievous bodily harm on David Carty could not be supported on either of these bases.

Direct Liability 81 It was pointed out by counsel for the appellant that at the trial no witness gave evidence that he or she had seen a person, who the witness identified as the appellant, kicking (or otherwise striking) David Carty. 82 To prove that the appellant had himself kicked (or struck) David Carty during the second phase of the attack on David Carty, the Crown sought to rely on:-

(i) A combination of the evidence of a number of witnesses.

(ii) Evidence which allegedly showed consciousness of guilt on the part of the appellant.

(iii) Evidence of blood stains on the shoes the appellant had been wearing on the night of 18 April 1997.

(iv) Evidence of scratches on the appellant's neck on the night of 18 April 1997. 83 It is necessary for this Court to undertake its own independent examination of all of this evidence and to assess its quality. 84 In the summing-up the trial judge referred to the combination of the evidence of a number of witnesses on which the Crown sought to rely, in the following terms:- "The case against Richard, in effect, depends upon you accepting that Oshana did see Richard out there in the group, that he saw him moving around and kicking David Carty after he had gone into the hotel to get him and Thamir and had gone outside. It depends upon you accepting Oshana, Auld, Ritzmann and Davies that everyone in that group who were out there in that second phase, if you might call it that, were involved in the action. For example, as Auld put it, that no-one within three to five metres or so, was idly standing by as a passive bystander". 85 Denis Oshana was an important witness for the Crown. He was the witness on whom the Crown relied, principally if not exclusively, to prove that the appellant was in a group around David Carty in the second phase of the attack on David Carty. 86 At the trial Denis Oshana gave evidence that in October 1998 (when he gave evidence) he was nineteen years old. On the night of 17 April 1997 he had gone to the Cambridge Tavern with a number of other young Assyrians, including his friend Tony Bakos. After arriving at the Tavern, they had gone into the karaoke bar. In the karaoke bar the staring, to which we have already referred in dealing with the first ground of appeal, occurred. Subsequently, Oshana went outside the Tavern and talked with friends, including Tony Bakos. 87 While he was outside, Oshana heard an argument taking place in the car park of the Tavern near a utility vehicle (David Carty's vehicle was a utility). Near the utility Oshana saw Thaier Sako, another young Assyrian named Eddie and Gilbert Adam, all of whom were standing about a metre from David Carty. After watching the argument for no more than a minute, Oshana went inside the Tavern into the karaoke bar. Oshana told Thamir Sako, Thaier Sako's brother, that his brother was in a fight. The appellant, who was present, said that he did not think it was a big deal. Oshana then told the appellant that his brother also was involved in the fight. Oshana, Thamir Sako, the appellant and others then left the karaoke bar and walked through another bar in the Tavern, which was called the Casino Bar. 88 When Oshana walked out of the door of the Casino Bar, he saw Thaier Sako walking towards him, holding his neck. Thaier Sako collapsed to the ground about a metre from the door of the Casino Bar. Oshana was asked by the Crown Prosecutor:- "Did you see where Richard was when you came out (of the Casino Bar)?"

and he replied: "No. I can't remember" 89 Oshana made a telephone call for an ambulance for Thaier Sako, using a mobile telephone which someone handed to him. Oshana then happened to look away from Thaier Sako and he saw a police officer lying on his back on the ground in the car park. Oshana could not remember how many persons were near the police officer. 90 The following questions and answers occurred in Oshana's evidence in chief:- "Q…Who else did you recognise, if anyone? A. Richard was there at one stage.

Q. Richard? A. (Witness nodded).

Q. That is the accused, Richard Adam? A. That's right.

Q. But when you looked over and saw David Carty lying on the ground, moving, was Richard there then? A. I can't remember if he was then or not". 91 Oshana then said that other persons who he did recognise were near David Carty, including Gilbert Adam. 92 Oshana's evidence continued:- "Q. Gibby (Gilbert Adam) was there. Just going to each of these persons, *when you first looked, was Gibby there? A. I think so.

Q. How far was he from David Carty when you saw him? A. A metre.

Q. A metre? A. (Witness nodded). Q. And Richard, when he was there, you said he was there at some stage? A. (Witness nodded).

Q. How far was he from David Carty? A. ** Probably about the same, I remember him behind the utility.

Q. He was behind the utility? A. Yeah.

Q. When you say 'behind', do you mean, the utility was facing which way? A. The street, facing KFC.

Q. Where was he in relation to the utility when he was behind, behind what part of the utility? A. In the back of it, right near the back.

Q. Right near the back of it? A. That's right.

Q. How far at that stage was he away from David Carty? A. About three metres at that stage.

CROWN PROSECUTOR: So you saw him at one stage, one metre away.

CROWN PROSECUTOR: Q: And at another stage you saw him three metres away? A. Yes.

WATERSTREET: My note is: 'Richard, the same but behind the ute.'

WATERSTREET: Could that just be read? It is not my note.

WATERSTREET: It is just a few lines back. Immediately after his answer on Gibby, 'I think so' and gave a measurement and asked about Richard and he gave an answer.

QUESTIONS AND ANSWERS FROM * TO ** READ BY HIS HONOUR.

HIS HONOUR: The transcript reads 'probably about the same'. In any event, you better ask him, Mr Crown.

CROWN PROSECUTOR: Q. Did you see Richard in more than one place near David Carty? A. Yes,

Q. What was the first of those places you saw him in? A. First next to him.

Q. He was next to him? A. (Witness nodded).

Q. What part of him, do you remember? A. No.

Q. How far was he away from him when he was next to him? A. About a metre.

Q. And how far was he away from David Carty then? A. About three or four metres.

Q. Over what period of time are you describing Richard Adam's presence near David Carty? A. I can't remember". 93 A little later Oshana gave the following evidence:- "Q. Were they (the men near David Carty) staying in the one position? A. No, they were moving around.

Q. Did you see any movement against David Carty? A. For a split second, but I don't know.

Q. What did you see? A. Leg movements.

Q. Were those leg movements coming into contact with David Carty? A. Probably.

Q. How would you describe the leg movements? A. Kicking.

Q. And how - could you describe the force with which you saw the kicking? A. With force.

Q. I am sorry? A. With force.

Q. As you saw the kicking, did you see who was doing the kicking? A. No.

Q. Who was near David Carty as you saw the kicking going on? A. It would have been Eddie. I don't know if it was Richard or Gibby there.

Q. They were over there? A. I don't know if it was one of them". 94 Oshana then gave evidence that he remembered a woman (who could only have been Michelle Auld) screaming, about four or five metres away from David Carty. When Oshana looked again, he saw the appellant "helping her up". 95 Oshana was asked whether he saw the appellant do anything and the following questions and answers occurred:- "Q. Did you see him moving, walking, doing anything? A. Yeah, he walked around a couple of times.

Q. He walked around who? A. Not walked around, like, he walked up, next to the other car, the one parked behind the utility.

Q. And then walked back, did he? A. Yes, I think it was.

Q. Was he the only one you saw move from his position? A. I can't remember". 96 Oshana said that other people were present. He was asked:- "Were they closer to David Carty than Eddie, Gibby and Richard or were they further away….? And he replied "closer". 97 Oshana was asked:- "After Richard picked her up, did you see him again in the car park?" and he replied "I can't remember". 98 Oshana's evidence, accordingly, included evidence that the appellant had gone out into the car park, after he had been told by Oshana that his own brother, Gilbert Adam, was involved in a fight; that at one stage (Oshana did not remember for how long) the appellant was about a metre away from David Carty, that at another stage the appellant was about three metres away from David Carty, that the appellant was not stationary in the car park but moving and that other persons were closer to David Carty than the appellant was. As regards kicking of David Carty, Oshana's evidence was that he saw kicking for only a split second, that he did not see who was doing the kicking and he did not know if the appellant was there, when the kicking he saw occurred. As regards Oshana's evidence that he saw the appellant help up a woman, who could only have been Michelle Auld, Michelle Auld had no recollection of this happening and the appellant, when interviewed by the police, denied that it had happened. 99 So far as can be gathered from reading the transcript of his evidence, the general quality of Oshana's evidence, as is demonstrated by some of the extracts we have quoted, was not high. 100 Tony Bakos, a friend of Denis Oshana, who went with Denis Oshana to the Cambridge Tavern on the night of 17 April 1997 and who was in the company of Denis Oshana for most of the night, also gave evidence at the trial. 101 Bakos gave evidence that he observed at least part of the first phase of the attack on David Carty. Bakos remained in the car park, when Oshana went inside the Tavern to speak to Thamir Sako, after Thaier Sako had been injured. He observed Oshana come out of the Tavern with Thaier Sako, another Assyrian and the appellant. He was asked:- "What did he (the appellant) do, when he came out of the hotel?" and he replied:- "I can't remember". 102 Bakos did give evidence that a policewoman was kicked and fell and "Richard picked her up and he was asking if she was all right." However, it emerged in cross-examination of Bakos that in giving evidence at the committal proceedings he had said that he had not seen Michelle Auld fall over and when asked whether he had seen the appellant do anything in relation to Michelle Auld, he had replied "No". 103 Little reliance could be placed on Tony Bakos's evidence, as establishing that the appellant was in a group around David Carty in the second phase of the attack. 104 The trial judge in the passage in the summing-up which we have already quoted nominated Oshana, Auld, Ritzmann and Davies, as being witnesses who had given evidence that everyone in the group near David Carty in the second phase of the attack was "involved in the action". 105 It seems to us, from our reading of Oshana's evidence, that Oshana did not give evidence that everyone in a group near David Carty was involved in the second phase of the attack on David Carty. As we have already remarked, Oshana's evidence was that he saw kicking for only a split second and he did not see who was doing the kicking. 106 Nor did the witness Ritzmann give evidence that everyone in a group near David Carty in the second phase of the attack was involved in the attack. Ritzmann was a barman at the Cambridge Tavern, who gave evidence that he had observed parts of both the first phase and the second phase of the attack on David Carty. He had assisted Michelle Auld in making her emergency telephone call, by providing one of the Tavern's telephones. Ritzmann said that in between the two phases of the attack, he had himself been alone with David Carty, who was not moving and who he thought was already dead. Michelle Auld then came running out of the Tavern and "the same people started again… there would have been six or eight… kicking, jumping, stomping on his head". Ritzmann did not say that everyone near David Carty joined in assaulting him. 107 On the appeal, as at the trial, the Crown relied very heavily on parts of the evidence of Michelle Auld as proving that everyone in a group near David Carty in the second phase of the attack was involved in attacking him. 108 Michelle Auld, reading from a statement she had made, gave the following evidence:- "As I came out the front door and I ran towards where Dave was between the cars where I saw about 10 young males of Arabic appearance and the person in par 15 moving their legs in a kicking motion towards Dave, who was on the ground. All of the male persons were striking and kicking motion to various parts of Dave's body. I was still running and as I came between the front of my car and the rear of Dave's ute, I saw that Dave was laying on his back on the bitumen beside his car and I saw about 10 male persons still kicking Dave to various parts of his body and I saw his body moving. I then saw some of these persons commence to punch Dave with closed fists to various parts of his body. I just snapped and I saw that Dave was in great danger and I ran to his assistance…" 109 Michelle Auld tried to push some of the young men away from David Carty. She was herself assaulted. She was punched on the left cheek and on the right side of her head. She said that moments after being punched on the head, she heard police cars arriving. 110 Michelle Auld later gave the following evidence:- "I would also like to clarify that all the people in the near vicinity of Dave were those people who were actually attacking Dave. I would estimate there were no people within a radius of about three to five metres who were not involved in the attack on Dave. I did not see any person assist Dave, other than the police or ambulance officers". 111 Michelle Auld acted resourcefully in making the telephone call and also acted with great courage in attempting to come to the defence of David Carty. However, a number of criticisms can be made of the reliability or probative force of her evidence.

(i) It is likely that she was in a highly distressed state, when she re-entered the car park after making the telephone call. Ritzmann described her as "hysterical", when she came running into the bar to make the telephone call.

(ii) After going out the door into the car park, she would have had only a very limited time for observation, before she herself entered the fray in an attempt to defend David Carty.

(iii) She did not identify the appellant as being a member of the group near David Carty.

(iv) The only person she did identify as being near David Carty was the person referred to in par15 of her statement, who was Thaier Sako. On the Crown case, Thaier Sako could not have been involved in the second phase of the attack on David Carty.

(v) The crucial evidence that there were no people within a radius of three to five metres of David Carty who were not involved in the attack on him was introduced by the words "I would estimate" and it is difficult to be sure what was meant by the assertion that all persons within a radius of three to five metres from David Carty, which would include persons too far away from David Carty to reach him, were "involved" in the attack.

(vi) There was a risk of the witness leaping to a conclusion, especially in the short time available for observation, that all of a number of persons, who were fairly close together and of similar ethnic appearance, were behaving in the same way.

(vii) Michelle Auld's evidence is almost certainly inaccurate in some important respects. We have already referred to her evidence that Thaier Sako was involved in the second phase of the attack on David Carty. According to Michelle Auld's evidence, she played no part in the first phase of the attack on David Carty. This evidence was contradicted by evidence from Ritzmann, that, when Michelle Auld ran into the bar wanting to make a telephone call, she had blood on her hands and that after she had used the telephone there was blood on the telephone. Furthermore, at about three o'clock on the morning of 18 April 1997 Michelle Auld had spoken to another police officer, who had made notes in his notebook. Michelle Auld had then told the other police officer:- "About 10 or more males, most or all of Lebanese appearance, all pretty much dressed casually, jeans, jackets T-shirts, as they encircled him, they started throwing punches, all of them, I began to approach him and tried to push them away from Dave. I raced inside to call a Signal 1 soon after being hit. I made a quick call to Fairfield Police, raced outside and I saw Dave on the ground and they were laying the boot into Dave. I tried to pull them away and I was hit in the face and mouth by someone with a blue and white striped T-shirt. Police then arrived and everyone just stood around."

In his final address the Crown Prosecutor conceded to the jury that "you might think she might have been (in the initial fight) and as a result of delayed shock she has forgotten some of it".

(viii) Michelle Auld's evidence that police cars arrived, only moments after she was punched in the head, is unlikely to be accurate. Several minutes would have elapsed before the police cars arrived. It is likely that after she was punched in the head she lost consciousness or otherwise suffered a memory loss. In his final address the Crown Prosecutor suggested to the jury that she had been rendered unconscious or dazed by the blow to the head.

(ix) There is a risk that Michelle Auld may have transferred some of her recollection of what happened from the first phase of the attack to the second phase of the attack. According to what she had told the other police officer shortly after the events happened, it was during the first phase of the attack, in which, on the Crown case, Thaier Sako did participate, that ten males were all (our emphasis) engaged in assaulting David Carty. 112 The witness Mr Davies gave evidence that he was a shift worker, who after finishing work on the night of 17 April had gone with a workmate to the Cambridge Tavern. Mr Davies witnessed events happening in the car park through a window in a bar facing the car park. He saw a person, who on the Crown case would have been David Carty, about twenty yards away from him. That person was being punched and kicked by a group of persons. He saw a person with blood on his shirt being dragged or carried towards the Tavern building. On the Crown case this person would have been Thaier Sako. Another four or five persons, who had been standing outside the door to the bar, ran to where the first person (David Carty) was still being punched and kicked by three or four men. There were then eight persons near the first person. Mr Davies saw kicking movements, which continued for three minutes. Not all of the group near the first person were doing kicking movements at the same time but they all appeared to Mr Davies to be kicking at some stage. 113 Mr Davies' evidence would accordingly support a finding that all of a group of about eight persons near David Carty in the second phase of the attack were at some time or other during a period of about three minutes engaged in kicking David Carty. 114 The difficulty remains of whether the jury could be satisfied that it was at a stage during this period that Mr Davies was observing the group, that Oshana saw the appellant within a metre of David Carty. 115 A complicating factor was that there was evidence from a number of witnesses suggesting that at least at some times during the assaulting of David Carty there were a large number of persons in the car park. Mr Davies said that during the first phase of the attack there were "twentyish" persons in the group near David Carty. Mr Batterham, Mr Davies' work mate, said that there was "coming and going" of persons near David Carty. "There were guys running around and that". Ms Waight, a former nurse, who after hearing screaming went out into the car park to offer her assistance, said that at one stage she saw fifty to sixty people in the car park. Mr Nguyen, a patron at the Tavern, said that after Thaier Sako was injured he saw twenty or thirty men in the car park. 116 In our opinion, there are substantial weaknesses in the combination of the evidence of a number of witnesses, on which the Crown sought to rely as showing that during the second phase of the attack the appellant was one of a group of persons near David Carty, all of whom were at least some of the time kicking David Carty. 117 We have already considered the evidence relied on by the Crown as showing consciousness of guilt, in dealing with the second ground of appeal. 118 We have already expressed the opinion that the evidence relied on by the Crown as being evidence of flight was so deficient in establishing that there was any flight at all or that the reason for any flight was consciousness by the appellant of his own guilt that such evidence should not have been left to the jury as capable of amounting to evidence of consciousness of guilt. We have also expressed the opinion that the evidence of participation by the appellant in the burning of his brother's pants should not have been left to the jury as capable of amounting to evidence of consciousness of his own guilt. 119 The other evidence allegedly showing consciousness of guilt was properly left to the jury. However, the extent to which it could properly be used by the jury as tending to establish the guilt of the appellant was diminished by the ready availability of an alternative explanation of his conduct, which was put to the jury a number of times by the trial judge, that the appellant was acting out of a consciousness, not of his own guilt, but of the guilt of his brother or possibly the guilt of other persons of the same ethnic background who had joined in attacking David Carty. 120 Bloodstains were found on the shoes the appellant had been wearing on the night of 17-18 April 1997. The blood was found on the laces and the lace hole of the right shoe and on the inner side of the sole of the left shoe. The total quantity of blood was very small. There was no evidence of any blood on the appellant's socks or on any of his other clothing. On both shoes the blood found was mixed, that is of two types. The major part, with a high degree of probability, could have come from David Carty. The minor part, with a high degree of probability, could have come from Thaier Sako. 121 The Crown submitted that the evidence of blood on the appellant's shoes could show that he had kicked "a bloodied area of the deceased" or that he was at least standing near David Carty, when David Carty was being kicked and was bleeding. 122 The probative force of the presence of blood, which was very likely David Carty's, on the shoes the appellant was wearing was reduced by the circumstances that the quantity of blood was very small and that at both sites the blood was found to be mixed. It would be surprising, if blood from two independent sources, for example directly from David Carty and directly from Thaier Sako, had happened to get on precisely the same, small spots of the appellant's shoes. An alternative explanation, which has considerable plausibility, would be that the blood of David Carty and the blood of Thaier Sako got on to the appellant's shoes in the same spots, because those parts of the appellant's shoes had come in contact with an object on which the blood of David Carty and the blood of Thaier Sako were already mixed. 123 On the hearing of the appeal the Crown sought to rely on evidence of scratches on the appellant's neck when he was spoken to by police soon after the incident. However, Ms Capuyan, the manageress of the karaoke bar, gave evidence that she saw scratches on the appellant's neck before the incident. The trial judge directed the jury that the evidence of scratches was "pretty neutral" and that "there was nothing to show that Richard did not have those scratches before the fight". 124 In deciding whether the verdict of guilty cannot be supported, it is necessary to take into account that the appellant did not give evidence. He had of course been interviewed by the police and evidence of these interviews was before the jury. The co-accused Gilbert Adam also did not give evidence. 125 The trial judge directed the jury that the appellant was entitled to elect to say nothing and to make the Crown prove his guilt. The trial judge told the jury, among other things:- "So then, the consequence is that you must not view silence by the accused here, or the fact they elected not to give evidence, as any admission of guilt on their part. There may be many reasons why an accused person does not want to give evidence and the safe course for you is not to speculate what those reasons might be. The situation is that you have the evidence of a number of people, you have the interviews with the accused, but you do not have any evidence from them here. That is a matter you can take into account when you come to consider whether you accept or reject the evidence of the Crown witnesses. The fact is, you have heard from them, you have not heard from the accused; which, I point out to you, is as far as it goes. You cannot infer any concern on the part of the accused, nor can you infer any guilt on their part for not giving evidence here." 126 In the present case, there was a possible reason for the appellant not giving evidence, that, if he gave evidence, he would be compelled to give evidence incriminating his brother, the co-accused, in the murder of David Carty. 127 After conducting our own independent examination of the nature and quality of the evidence relied on by the Crown as establishing the direct liability of the appellant, we have concluded that the jury ought to have entertained a reasonable doubt about whether the Crown had proved the guilt of the appellant.

Accessorial Liability 128 To prove that the appellant, even if not himself kicking David Carty during the second phase of the attack, had been present intentionally assisting or encouraging a person or persons who were kicking David Carty, the Crown relied on the same four classes of evidence as the Crown relied on to prove direct liability. What we have already said about these classes of evidence in considering the direct liability of the appellant is equally applicable to accessorial liability. 129 It was also submitted on behalf of the appellant that, if the Crown was able to prove that the appellant was present while David Carty was being kicked by others but was unable to prove that the appellant had himself kicked David Carty, then, even if presence coupled with a readiness on the part of the appellant to assist or encourage would be sufficient for criminal liability, it was unclear what conduct the Crown could rely on as showing that the appellant was assisting or encouraging, as distinct from merely being present and not coming to the assistance of David Carty. 130 In our opinion, the jury ought to have had a reasonable doubt about whether the Crown had proved the guilt of the appellant on the accessorial liability basis. 131 The assaulting and murder of David Carty were terrible crimes but the appellant could not be convicted (of any offence), unless the Crown proved his guilt of the offence beyond reasonable doubt. In our opinion, the fourth ground of appeal against conviction should be upheld, the appeal against conviction should be upheld, the conviction should be quashed and a judgment and verdict of acquittal entered. As we have upheld the appeal against conviction, it is unnecessary to deal with either appeal against sentence.

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