Regina v Danny ABBAS

Regina v Danny ABBAS - [2006] NSWCCA 331 - NSWCCA 2006 case summary — Zoe

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Thursday 19 October 2006 REGINA v Danny ABBAS Judgment 1 SPIGELMAN CJ: The Appellant was convicted of two counts of maliciously shooting with intent to do grievous bodily harm. These were alternatives to two counts of shoot with intent to murder, of which he was acquitted. There were two victims who were shot within seconds of each other. The appeal against conviction involves a single ground of appeal: that the verdict cannot be supported having regard to the evidence. There is also an appeal against sentence. 2 The shooting occurred at about 2:38am at a New Year's celebration involving 200 to 300 patrons at Adeel's Palace, a restaurant in Punchbowl. The nature of the evening, the time of day and the fact that alcohol in significant quantities was consumed by some of those attending, explains the considerable divergence in eyewitness accounts of the events. 3 Shortly before the shootings, two fights occurred between patrons. The first involved some women at the gathering. The second fight involved a wider group of patrons and was appropriately characterised as a brawl. The second fight included the victim, Anthony Moubarak, having an altercation with another young man who was, on the Crown case, the Appellant, Danny Abbas. Shortly after that fight, the gunman shot Antoin Bou Najem and Anthony Moubarak. There were a number of witnesses to the crime. The movement of individuals within the establishment was recorded by security cameras. There was, however, no camera either in or just outside the kitchen area where the shootings occurred, although a CCTV camera did record across the area in front of the kitchen entrance from the bar area. 4 The Crown case was largely circumstantial and there are a number of discrepancies between the accounts of the respective witnesses. Such was to be expected given the circumstances of the evening. The CCTV footage, although not of high quality, is an important piece of objective evidence. 5 The Crown's case was and is that the gunman is the same person who fought with Anthony Moubarak during the second fight between patrons. The Crown alleged that the security camera footage of the Appellant exiting and re-entering the building following the fight is consistent with its case that he returned with a handgun, which he subsequently used for the shooting. The presence of blood on the face of the gunman at the time of the shooting, which is emphasised in the eyewitness accounts is of central significance. No CCTV image shows the Appellant bleeding in a way consistent with witness accounts. 6 The defence case at trial was that the Crown case did not establish that the Appellant was the shooter to the requisite standard. The Appellant invoked his right to remain silent and did not give evidence at any stage. The defence called a witness, Talal Rifai, who gave a version of events exculpatory of the Appellant. He denied that the Appellant was involved in either the fight or the shooting and provided an alternative account of how the Appellant received a wound to his face for which he subsequently sought medical treatment. 7 In support of the single ground of the conviction appeal Mr T Game SC, who appeared for the Appellant, emphasised the following factors: · The absence of blood on the Appellant's face in video evidence; · Contradictions between witness descriptions of the gunman and the actual appearance of the Appellant; · Witness statements that the gunman left through the main reception, contrary to the accepted departure point for the Appellant through the kitchen; · The absence of evidence to support the Crown's contention that the security camera shows the Appellant carrying a gun; · Evidence from the Baz family that was contrary to the Crown's case that the Appellant was the gunman. 8 On appeal, the Crown pointed to the following direct and circumstantial evidence as capable of supporting the conviction: · Evidence of identification, especially the identification of the Appellant as the gunman by Simon Bouzani; · Evidence of resemblance/identification, specifically the identification of Eva Moubarak and Jehad Harb of the Appellant as the gunman and the fact that the only identification made by any witness was of the Appellant; · Anthony Moubarak and Jehad Harb's identification of the gunman as the same person as the man involved in the earlier fight with Anthony Moubarak; · The Appellant's presence in the restaurant at the relevant times and his approach to and departure from the kitchen area immediately after the shooting; · Surveillance material disclosing the sequence of events and movements of the Appellant; · Comparison of the Appellant's appearance and witness descriptions of the gunman; · The injury to the Appellant's forehead which was consistent with the blood seen on the shooter's face; · An inference from the fact that the gunman and the man involved in the fight with Anthony Moubarak was the only person observed by witnesses to be injured at the relevant time. 9 Mr Game submitted that this case did not turn on issues of credibility, but on whether the verdict was capable of being supported by the evidence. This Court, he submitted, was equally equipped to determine that matter as the jury. (Appeal Transcript, p18 (from 25)-p19 (to 5).) The test for this Court, pursuant to M v The Queen (1994) 181 CLR 487, is that if it feels reasonable doubt, the jury ought to have felt a reasonable doubt. 10 Mr Frearson SC, who appeared for the Crown on the appeal, submitted that the case turns on the accumulation of the evidence. He accepted that there were some unanswered questions. However, he submitted, a sufficiently coherent story overall was presented at trial. (Appeal Transcript, p25 (from 50).)

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Identification Evidence 11 I will set out below the evidence of the victim, Anthony Moubarak. He could not identify his assailant because of the amount of blood on the assailant's face. However, he did identify his attacker as the same man with whom he had earlier fought. 12 The most direct evidence in the Crown case was an identification of the Appellant as the person who took out a gun and walked into the kitchen just before the shootings. This identification was made by the co-owner of Adeel's Palace, Simon Bazouni. Mr Bazouni made a statement to police on 1 January 2003, hours after the shooting and whilst still at Adeel's Palace. After an employee, Mitri Kouzi, handed Mr Bazouni a photograph, which had been taken by the professional photographer present to record the festivities, Mr Bazouni pointed to the Appellant and identified him as the man who had possessed the gun. (See Transcript, Vol 4, 11.6.04, pp13-15; the photo was tendered as Exhibit MFI 2 and is reproduced as Exhibit T in Vol 1, p275; Photo 66 is also the same, Vol 1, p352.) The Appellant appears at the centre of the photograph in a black shirt. 13 Mr Bazouni's identification did not address the actual shooting. It was circumstantial evidence, albeit powerful evidence of that kind. 14 Mr Bazouni retracted his statement, claiming he could not clearly remember the evening. Leave was granted to the Crown to cross-examine him (see Transcript, Vol 4, 11.6.04, p8; and pp9-19 & pp25-34) as an unfavourable witness based on the statement. The notebook of Constable Hannah Burton, the officer who had taken Mr Bazouni's statement was also tendered to the Court as MFI 3 and is reproduced as Exhibit V, Vol 1, pp278 & 279. Constable Burton read the relevant sections to the Court. (Transcript, Vol 4, 15.6.04, pp47-48.) It was, of course, open to the jury to accept his original statement and reject the retraction. 15 In cross-examination, the following paragraphs from Mr Bazouni's original statement were read to the Court: "I saw one guy on the dance floor pulled out a pistol from his pants. It was tucked inside the front of his pants. When he pulled it out I didn't see the handle, but the rest of it was all silver. From what I know about pistols it was a .22, then again I could be wrong." (Transcript, Vol 4, 11.6.04, p9.) "I think the pistol was in his right hand. He raised the gun in front of him and walked towards the kitchen." (Transcript, Vol 4, 11.6.04, pp10 & 12.) "Mitri Kouzi handed me a photograph of a group of people. It was a photograph taken by Edwards Photography. Who always attends functions that we have. I knew that photograph was taken that night because I was taking the people to the tables and recognised them in the photo. I looked at the photo and recognised the man in the middle of the photo as the one who was holding the gun." (Transcript, Vol 4, 11.6.04, p16.) 16 Eva Moubarak, the victim's mother, had attempted to stop the man with the gun at the kitchen door. He hit her and she fell to the floor. She identified the Appellant in a photo identification procedure conducted at the police station on 2 January 2003, using the 103 photographs taken by the professional photographer at the event. Mrs Moubarak gave evidence at the committal proceeding but ill health prevented her from attending the trial to give evidence. A video recording of the identification was played to the jury (Exhibit YI, not available to this Court; Transcript, Vol 4, 18.6.04, pp38), and an audio tape recording (Exhibit Y2; not available to this Court) and transcript of that recording were also tendered to the Court (Exhibit Y3; reproduced Vol 1, pp388-394). (Detective Senior Constable Katherine Melinda Hopkins also gave evidence of the photo identification procedure conducted with Mrs Moubarak; Transcript, Vol 4, 18.6.04, pp35-37.) In addition, the transcript of Mrs Moubarak's testimony from the committal was read to the jury. (Commencing Transcript, Vol 4, 21.6.04, p9, section relevant to the identification, p26.) 17 The transcript of the identification procedure at the police station records Mrs Moubarak's words, which may fall short of a positive identification but, in any event, constitute strong evidence of resemblance. (Vol 1, p392.) "Q 78. Out of all…how many is there only one person you recognise in that photo, or do you recognise more than one person? A. … Q 79. And which person is that? A. … because I told you when I was going he is a very huge man. Q 80. Yeah. A. … Q 81. And what did he do? A. He shot my, I can't, I'm not saying he shot my son, but maybe him, maybe unless I see him…100 per cent but the way I saw him and when he was with the blood and everything, but no that's him, that's him…Anthony. Q 82. Right. A. I would say 90 per cent. Q 83. All right. A. Because…hardly any man similar to this look. Q 84. All right. Do you agree that say, A, on that on? A. Yeah. Q 85. And do you agree that he is depicted in photograph 31, and he's also depicted in photograph number 66? A. I don't want to blame anyone…'cause if I'm not 100 per cent sure. I don't want, only I want to pick but he look like him." 18 Mrs Moubarak went on to indicate that her point of doubt was that the man she saw in the kitchen with the gun had a gold necklace and she could not see one in the photos that she was being shown. This seems to have been the only point of uncertainty. (See Vol 1, pp393-394.) The procedure concluded thus: "Q 113. But other than that you believe that… A. … Q 114. … he's the one… A. Same man. Q. Except the man that shot your son had a necklace, he was wearing a necklace? A. Yeah." 19 It appears that in Photo 31 a gold chain is observable on the Appellant, whereas it is not in Photo 66. Nevertheless, both photographs were shown to Mrs Moubarak at the police station. (See Transcript, Vol 4, 21.6.04, p16.) 20 A further witness, Jehad Harb, who attended the event as a friend of Anthony Moubarak, identified the Appellant in a photo identification procedure on 29 March 2003, circling a photograph of the Appellant. (The photo board used is Exhibit J, Vol 1, p263, and the transcript of the procedure is Exhibit K2, Vol 1, p264. A video of the procedure was also tendered at trial as Exhibit K1, but was not available to this Court.) Mr Harb said that he recognised the man in Photo 2 as the man who had been involved in an altercation with Anthony Moubarak and whom he later saw entering the kitchen with a gun. He stated that he was "fairly sure", but not 100 per cent sure, of this identification. (Transcript, Vol 3, pp67-70, esp p69.) Mr Harb was unsure of the amount of alcohol he had consumed, but it was something like four to five glasses of scotch over the course of the evening. (Transcript, Vol 3, pp85-87, esp p86.)

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[Transcript, Vol 3, 8.6.04, pp17-18; cross-examination, in which Mr Korn, defence counsel at trial, is asking the witness about apparent discrepancies regarding the amount of blood between his testimony during the committal and his evidence at trial.] "Q. In the answer that is recorded here and through an interpreter, you said 'I saw three people one of them had blood all over his face'. Was that a truthful and correct answer when you gave it? A. When you say all over his face it sounds like somebody put a bucket of blood on top of his face. When I said there was blood on his face, I meant that there was blood on his face. Q. Do you understand that I'm reading back to you what is said to be your own words, in other words, that you were the one who said 'One of them had blood all over his face.' What I want to know is, is that the description you gave when you were before another Court and giving evidence on his topic in October last year? A. Yes. Q. Is that an accurate description of what you saw? A. That is what I saw and I told them what I saw. Q. So is what you saw that you can't be specific on what part of the face there was the blood? A. No. Q. But that your recollection is that in fact the blood was all over the face of the man with the gun, is that your recollection of what you saw? A. Yes." 25 Eva Moubarak observed the gunman from close proximity in the kitchen, immediately prior to her son being shot. The following exchange from the committal was read to the court during the trial. (Transcript, Vol 4, 21.6.04, pp13-14): "Q. And you say you went up to this man and you held his shirt and you asked him not to shoot anyone, okay. When you approached the man did you notice anything about his face? A. Blood, blood all over his face. Q. When you say 'all over' can you tell us where? A. All, all over the face. Just if you tell me where exact - the only thing I know, on the face only, but all of the face is blood, where, in the eyes, his mouth, but all over his face. It's not like it's too much blood, but just blood everywhere. Q. So there wasn't a great deal of blood, but it was roughly all over his face? A. A little bit bleeding." 26 Abdul Majid Soltani, a patron, described two or three men entering the kitchen followed by seven or eight others. He described the groups as having "huge bodies … quite hefty". (See Transcript, Vol 3, 8/6/04, p76.) He heard a number of bangs and goes on to say (p79): "Q. After you heard the bangs or the bullets did you see anyone leave the kitchen? A. I saw one man with bleeding on his head, face, gushing out blood. … Q. Did you notice from where on his head he was bleeding? A. I couldn't locate the bleeding spot, but I knew that his face, it was full of blood." 27 Jehad Harb, a friend of Anthony Moubarak's at the time, witnessed the fight and identified the man in the fight as the same man who had a gun. (Transcript, Vol 3, 8/6/04, p87): "Q. And were you able to see if either Anthony or the man he was fighting had any injury at all? A. I'm pretty sure that the guy that Anthony hit did get injured on his face, there was some blood on his face. Q. Are you able to tell the jury whereabouts on his face he appeared to you to get injured? A. In between his eyebrows on his forehead. Q. And were you able to observe what sort of injury he had between his eyebrows on his forehead? A. No, just a cut. Q. Okay, were you able to observe whether he had any blood on his face? A. Again, I don't recall exactly, I mean I think there was, but I couldn't say for sure."

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28 Following this exchange, the Crown sought, and was granted, leave to examine Mr Harb as an unfavourable witness, on the basis of prior inconsistent statements. (See Transcript, Vol 3, 9/6/04, pp65-66.) In the course of this questioning, the following prior statement was read to the witness, and Mr Harb grudgingly accepted that he had made the statement in March 2003. (Also see pp97 & 99): "Q. You saw [said] 'I saw the bloke that I had seen Anthony hit earlier run up the stairs and past the side bar. I saw this bloke still had blood on his face. This bloke was about five metres from me when I saw him hold his hand in the air and I saw that he was holding a grey pistol'." 29 Christopher Touma, a friend of Anthony Moubarak's present on the dance floor during the fight, gave the following description of the man he had seen involved in a confrontation with Anthony Moubarak. (Transcript, Vol 4, 11/6/04, p53): "Q. No, did you notice anything about his face? A. Yeah there was a bit of blood on his face. Q. When you say bit of blood can you recall where it was on his face? A. No." 30 Micheline Chahda was at Anthony Moubarak's table and saw the gunman from under a table after the shots had been fired. She gave the following description. (Transcript, Vol 4, 15/6/04, p15): "Q. Now has looking at that sketch plan, Exhibit R helped you to remember anything about the description of the person who had the gun? A. Just that he had a bit of blood on his face. Q. Are you able to recall where he had the bit of blood on his face? A. Just up the nose, I think. I'm not 100 percent sure where it was. Q. So you're pointing across the bridge of your nose are you, between your eyebrows? A. Yes." 31 Micheline Chahda did not refer to the gunman as having any blood on his face in her statement, made 14 July 2003. The reason she gave for this omission was that she had not been specifically asked about the gunman's face and whether there was any blood or other notable features. (See Transcript, Vol 4, 15/6/04, p16.) 32 Meray Jurdi gave a different account to all other witnesses, describing a man being hit over the head with a Jim Beam bottle, then pulling a gun out from his pants and entering the kitchen immediately prior to the shooting. She gave her statement to the police 5 April 2003. Her description of the blood on the gunman's face was as follows. (Transcript, Vol 4, 15/6/04, p27): "Q. After this incident, you've seen the man that you've seen earlier with the fork did you see anything else happen during this bigger fight? A. Yeah I did see a pretty big guy like a body builder type of build, I seen him get smacked over the head with a Jim Beam bottle, his forehead, his head was just bleeding, just blood everywhere … … Q. I think you said you saw blood? A. Yeah just on his forehead, just dripping down his face."

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Submissions with respect to Blood 36 All witnesses to the events close to the shooting itself describe the gunman as having blood on his face. The presence of blood on the face of the gunman is also significant because it fits with the Crown case of a prior fight between the shooter and Anthony Moubarak. 37 Furthermore, the presence of blood on the face of the victim was used by the Crown to explain the inability of one of the victims, Anthony Moubarak, to identify the gunman from suspect photos. The victim was, accordingly, limited to saying that the gunman was the same man as the man with whom he had the altercation earlier. (See Transcript, Vol 3, 7.6.04, p42.) I note that the other victim, Antoin Bou Najem, explained his inability to identify the gunman by reference to his having been hit in the eye. (See Transcript, Vol 3, 8/6/04, p9.) 38 Furthermore, on the Crown case the fact that the Appellant allegedly sustained an injury at the hands of one of the victims, in view of those he had come to the event with, was put forward as a motive for the shooting of Anthony Moubarak. (See Crown closing address; Transcript 22.6.04, Vol 4, p13.) 39 On the Defence case, the Appellant sustained his injury when an unknown flying object hit him as he exited the premise and walked toward Talal Rifai and his car. (Transcript, Vol 5, 22.6.04, p755, 765, esp pp785 & 792.) This object may have emanated from a fight which had spilled out onto the street, a fight in which the Appellant and Talal Rifai were not involved. As the Appellant did not give evidence Talal Rifai, a friend of the Appellant who did not give a statement to the police, (Transcript, Vol 5, 22.6.04, pp766, 773, 775), gave his account at trial. Talal Rifai was unable to say what the object that had hit the Appellant was, because he was across the road from the Appellant, it was dark and there were too many people around. (Transcript, Vol 5, 22.6.04, pp776 & 792.) 40 The Crown directly attacked the credit of Talal Fifai, contending that he was giving untruthful evidence in order to assist his friend. (Transcript, Vol 5, 22.6.04, p792, also see p794.) The Crown on appeal submitted that it was open to the jury to reject this account. (Crown submissions at [21].) 41 The Appellant's overall submission that the evidence cannot support a conviction rests to a significant extent on the apparent discrepancy between the accounts of blood on the face of the gunman and its absence in the video and forensic record. The Appellant's written submissions put this case in the following terms at [19]-[20]: "There was a good deal of video surveillance evidence in the relevant period in which the Appellant can be seen clearly and it can be seen that there was no blood on his face … [I]t would be inconceivable that the appellant would have blood covering much of his face yet not be seen bleeding or showing blood at any of the relevant times on the video…It is submitted that this point went essentially unanswered and [is] unanswerable." 42 Mr Game also summarised this aspect of the Appellant's submissions during oral argument as follows. (See Appeal Transcript, p3 (at 25)): "Our case is that it's quite a remarkable piece of evidence in this case that you would have opportunities again and again to see the appellant's face. Not only do you see no blood but you see him doing nothing [none] of the things that a person would do if they had such a deep wound to their face."

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Also see Appeal Transcript p5 (at 15); p6 (at 20 & 40); pp13 (at 55)-14 (at 5); pp18 (from 55)-19 (to 30). 43 It is of further significance that there was no forensic evidence linking the Appellant to the crime. See the examinations of Detective Senior Constable Katherine Melinda Hopkins and Acting Sergeant Luca Altamura, who executed the search warrant on Danny Abbas' house on 3 January. (See Transcript, 21.6.04, Vol 4, p31; p37 & pp39-40.) 44 Mr Game referred to the absence of forensic samples, articulating a submission that was not expressly drawn out at trial or in written submissions, being that "if there is so much blood then the evidence about a lack of DNA connection is not merely neutral but exclusionary". (Appeal Transcript, p11 (at 30).) Mr Game submitted, if the Appellant sustained significant injuries in the fight with Anthony Moubarak, it would be expected that there would be some of his blood somewhere, probably in the area of the fight itself. (See Appeal Transcript, pp17 (from 54)-18 (to 30).) 45 There are limitations in the forensic evidence available. A police officer who was involved in the collection of forensic samples and who appeared in the trial described the location of bloodstains at Adeel's Palace. (See Transcript, Vol 3, 8.6.04, pp20-21 and accompanying photographs in Exhibits D-G, Vol 1, pp226-261, esp Exhibit E, photos 13 & 22.) Photographs depict the function room with markers in place where droplets of blood were found, presumably from the fight which took place in this vicinity, and other photographs in this group which show the context of upended tables and chairs. The blood taken from this spot did not match the Appellant's. Nor did the photographs reveal a significant amount of blood at this location. 46 As Mr Game submitted (Appeal Transcript, p18 (at 10)) there was minimal examination of this type of evidence, beyond the confirmation that there was no forensic evidence found to link the Appellant to either the fight or the shooting. (The Appellant's fingerprint was found on a glass, but as his presence at the event was never contested this evidence had no probative value.) 47 Mr Frearson acknowledged that the photos of the fight location do not depict the amount of blood one would have expected from the fight (Appeal Transcript, p25 (at 50) & p26 (at 15)) and that the photographs were not consistent with someone bleeding profusely. (Appeal Transcript, p26 (at 10).) It is possible that this is explicable in terms of deficiencies in the collection or analysis of the forensic material, but there is no evidence or submission to that effect. 48 The matter primarily relied upon by the Appellant is the absence of any indication of blood on the face of the Appellant in the CCTV footage and the still photographs derived therefrom. I note there was no expert evidence to support the Crown submission that the CCTV system may not pick up blood. 49 On appeal, the Crown has primarily contended that the absence of blood on the surveillance images reflects the poor quality of the recordings. (Crown submissions at [17].) 50 On appeal, the Crown also referred to the fact that blood cannot be seen on the images of any other person. Mr Frearson made the following submission. (Appeal Transcript, p24 (at 5)): "In some of the photographs the Appellant presents with rather thickened eyebrows, it's difficult to tell whether there's actually blood there or not but what seems quite remarkable is that the video surveillance doesn't pick up blood on anybody really. It picks up no blood so there was a man running around with blood on all accounts, that's not picked up anywhere so it would seem to suggest the video's not capable of picking it up." 51 At trial, the Crown sought to explain the absence of video images showing blood on the Appellant's face by pointing out that no blood was evident on any other person, which would have been expected to have been noted and that the images were not of the kind of high definition quality that could lead one to expect to see this kind of detail. This explanation is included in the Crown closing address. (See Transcript, 23/6/04, Vol 5, p17; also see 22.6.04, Vol 4, pp12-13.) 52 In oral submissions, Mr Game contended that the Crown's emphasis at trial was not on the quality of the video, which was only mentioned once at the end. Mr Game pointed to the Crown's identification of a bruise on the surveillance images of Mr Elbaz as contradicting a focus on the low quality of the images. (See Crown Closing; Transcript, Vol 4, 22.6.04, p11.) Mr Game submitted that the real focus of the Crown's case at trial with respect to the apparent discrepancy between the witness accounts and the video images was the contention that the Appellant could have wiped off the blood before re-entering the restaurant. (See Appeal Transcript, p2 (at 25); also p19 (at 20-30).) 53 Although the Crown at trial did not dwell on the issue of the quality of the images, neither did the prosecutor develop the explanation that the Accused may have wiped the blood away at the relevant moment. This is the final substantive point the Crown made to the jury, and reading the closing address as a whole, it seems to me that the Crown left it to the jury as an issue which was not fully explained, but which was outweighed by the evidence and the lack of a plausible alternative explanation for how the Appellant received the laceration to his face. 54 At trial the Crown, after referring to the definition of the images, concluded his closing address by positing the following hypothesis. (See Crown Closing; Transcript, Vol 4, 22.6.04, pp17-18): "People cut themselves. They bleed, and particularly at the point were someone has received injuries to the point of requiring sutures. A person at some stage may well wipe the blood away. The Crown would suggest to you that it's not an unreasonable inference that while downstairs for a minute and however long, that the accused did wipe his face. He goes back up the stairs. He could have started to bleed again. You heard the doctor who treated the accused say that when he removed the paste that the cut bled freely." 55 This hypothesis is rejected in the Appellant's submissions in this Court on the basis that it is an inadequate explanation, given the number of video images which capture the Appellant but show no sign of blood. (See Appellant's submissions at [10].) 56 In response, the Crown submitted in this Court that the only video image which may reasonably be expected to have recorded blood on the Appellant's face was that of him ascending the stairs prior to the shooting. (See Crown submissions at [18].) However, it could also be expected that any images of the Appellant leaving after the shooting should also record blood. Particular reliance was placed by Mr Game on the video showing the Appellant leaving through the kitchen exit which occurred after the shooting, reflected in Photograph 11 which shows the right side of his face. (Written Submissions par [19].) There is no indication of bleeding. 57 Most of the images relied upon by the Appellant as inconsistent with his having blood on his face are images of his re-entering the premises before the shooting. Mr Game referred to the image of the Appellant re-entering via the stairs - from Tape 5 at 18:43:47 - as one where the viewer is in a good position to see above the Appellant's right eye. (Appeal Transcript, p6 (at 20).) Note that the Appellant's re-entry was also recorded on Tape 3, 18:43:32 and Tape 4, 18:43:42. The angle of all three images is one which would be expected to pick up an injury above the right eye of the Appellant, because the cameras were placed above the height of a tall person and recording from the right side of those entering the premise. 58 Furthermore, the Crown submitted in this Court that the issue of the blood had to be considered in the context of all the evidence, notably the uncontested medical evidence that the Appellant did suffer a cut on his face that night and the implausibility of the explanation given for this by Talal Rifai. (See Crown submissions at [20]-[21]; also Appeal Transcript, p25 (from 50).) 59 In this Court, the Crown also submitted that Meray Jurdi's account of the gunman being hit over the head with a bottle immediately prior to the shooting may also account for the discrepancy of witness accounts (particularly that of Anthony and Eva Moubarak) and the surveillance images. (See Crown submissions at [19].) The only witness evidence of the gunman being hit over the head with a bottle comes from Meray Jurdi. The Crown address at trial did not directly address this additional element introduced by Meray Jurdi's account, instead stating that although her testimony may be seen to have some inconsistencies with the Crown case, she was otherwise a clear witness and the jury should look to the similarity between her account and that of Jehad Harb in terms of their descriptions of the appearance of the gunman. (See Crown closing address, Transcript, 23.6.04, Vol 5, pp14-15.) The defence viewed the differences in her account as a fundamental flaw in the case theory the Crown has attempted to build. (See Defence Closing; Transcript, 23.6.04; Vol 5, p34.) 60 However, on Appeal, the Crown gave separate treatment to the evidence of Meray Jurdi that put a different slant on her account, arguing that a second injury being inflicted on the gunman immediately prior to the shooting itself may provide "a possible explanation for further bleeding at that point". (Crown submissions at [19]. This needs to be considered in the context of the Crown's broader submissions regarding the credibility of this witness at [34]-[40] and Appeal Transcript, p24 (from 55)-p25 (to 25). See [4.3].) 61 This is a significant recasting of the way the Crown has framed the case to the jury. The suggestion that the gunman received a second, and more serious, facial injury immediately prior to the shooting may explain the absence of blood on the images taken when the Appellant left and re-entered the restaurant before the shooting. It does not, however, affect the images taken as he approached the kitchen door or after the shooting. None of these images suggest the presence of blood. 62 An alternate possibility that arises, if Meray Jurdi's account is accepted, is that there was a second person with blood on his face. The Crown submitted at trial that its case was strengthened by the fact that no other individuals present at the venue at the relevant time was injured. (See Crown closing address; Transcript 22.6.04, Vol 4, p13.) Mr Elbaz did receive an injury in the earlier brawl, but had left the premises before the shooting, to attend the police station. (See Crown closing address; Transcript 22.6.04, Vol 4, p11.) The Appellant's counsel at trial suggested to the jury that there was a second man, broadly answering the Appellant's description, who was hit on the head by a bottle as per Meray Jurdi's account after the Appellant had returned downstairs and that it was this man who was the gunman. (See Defence closing address; Transcript 23.6.04, Vol 5, p15 & Crown's response to this at Transcript 23.6.04, Vol 5, p17.) The defence at trial also submitted that, even on Anthony Moubarak's description of the amount of blood on the gunman's face, it was not explained why he could not recognise the gunman. (See Defence closing address; Transcript 23.6.04, Vol 5, p9.) 63 An additional element to this evidence about the source of the wound, is the significance, if any, of apparent discrepancies between witness descriptions regarding the quantity of blood on the gunman's face (as distinct from the mere presence of blood). At trial, the Appellant sought to highlight discrepancies as reflecting inconsistencies between witness accounts that had significance for their reliability. (See Defence Closing; Transcript, 23.6.04; Vol 5, p33.) The quantity of blood on the face of the gunman is material to the critical issue of whether the evidence of bleeding would appear on the surveillance video or be reflected in the forensic record. This is a classic example of matters about which eyewitness accounts, generated in a context of stressful and quickly evolving situations, are likely to differ. The discrepancies are of limited overall probative value to the assessment of the evidence on blood but the fact that some witnesses described the amount of blood as small cannot be ignored.

[35]

Evidence said to create a Reasonable Doubt 64 The majority of witnesses did not give evidence regarding the gunman's point of departure. However, the evidence of some witnesses suggest that the gunman departed via the main entrance rather than by the kitchen exit. Eva Moubarak gave evidence that she saw the gunman run to the exit by the main entrance and stairwell. (Transcript, Vol 4, 21.6.04, p15.) The Crown argues that this witness would not have been in a position to see the gunman exit from the main entrance, and so she must have made some assumptions regarding his exit. (Crown Submissions at [46] & Appeal Transcript, p24 (45-55).) On the evidence, she remained in the kitchen when her son was shot just outside the entry door. 65 Meray Jurdi's evidence had a number of internal inconsistencies. In evidence-in-chief she stated that she did not see the man with the gun again after he entered the kitchen and later said that she did not remember whether or not she had. (Transcript, Vol 4, 15.6.04, p31 & p34.) In cross-examination, after being read her statement, Meray Jurdi agreed that she had originally stated that she saw the gunman run out of the kitchen, but that it was correct he used the main exit. (Transcript, Vol 4, 15.6.04, pp37-38.) On appeal, Mr Game argued that this witness' evidence, if believed, meant that the Appellant could not be guilty. (Appellant's Submissions at [25].) The Crown highlights the inconsistent and vague nature of this witness' testimony, arguing it was up to the jury to assess its weight. (Crown Submissions at [38], [40] and [48] and Appeal Transcript, pp24 (55)-25 (15).) 66 The evidence of Abdol Soltani seems to be equivocal on this issue, because the questions to him focused on whether he saw anyone leave the kitchen after hearing gunshots, although that could be taken to imply that the gunman did not exit through the kitchen. (Transcript, Vol 3, 8/6/04, p79.) The Crown on appeal submits that this witness did not actually ever say that he saw the Appellant leave by the main entrance, as suggested at trial. 67 This is the kind of matter about which witnesses can become confused in the context of a stressful and chaotic situation. The number of people who can be seen on the tapes running about after the shooting further diminishes the weight of evidence about the exit taken by the gunman. 68 This aspect of the evidence does not create a reasonable doubt in my mind. The Crown's submissions regarding Meray Jurdi, Eva Moubarak and Abdol Soltani's evidence on this issue clearly raise a matter for the jury. The evidence is not such as to create a reasonable doubt in my mind. 69 There were four pieces of witness evidence which contradicted the Crown case. I refer to the following: · The account of Meray Jurdi; · The accounts of the Baz family and Ms Touma; · Antoin Bou Najem's account of having been attacked by three men; · The account of Talal Rafai. 70 As noted above, Meray Jurdi, a friend of one of the owner's daughters, gave a significantly different account of events to all other witnesses. She was standing near a table during the second fight when she saw a man being hit over the head with a Jim Beam bottle whilst he was fighting with another man on the dance floor. She said that he took a gun out of his waist, where he had it tucked into his pants, and pointed it toward her, before entering the kitchen. She also said that she saw the gunman exit via the main entrance. (See [4.2] above.) (See generally Transcript, Vol 4, 15.6.04, pp27, 36 & 38.) 71 The Appellant's submissions suggest that the alternate account of Meray Jurdi create a reasonable doubt regarding the Crown's case. (See Appellant's Submissions at [23]-[26].) If this witness is correct, or if there is a reasonable possibility she is correct, then, it was submitted, the Appellant cannot be guilty (at [25]). Meray Jurdi is described in the Appellant's submissions as a "transparently credible" witness (at [23]). Meray Jurdi's account does present a significantly different narrative to the Crown case, which was based on the gunman having an earlier fight with one of the victims, exiting and re-entering in order to obtain a weapon. 72 The Crown submits that this witness' evidence is inconsistent and vague on the details and that her account shows signs of having been constructed from other accounts. The Crown submits that the jury was unlikely to have given her account much credence. (See Crown Submissions at [34]-[40]; Appeal Transcript, pp24(55)-25(25).) The Crown further points out that she does not claim to have seen the man who got hit with the bottle prior to the fight and that there was still only one man with blood on his face going into the kitchen. This may refer to the possibility that the bottle might have inflicted a second injury on the Appellant after his re-entry. 73 This was clearly a jury issue. The Crown submissions regarding the evidence of this witness being vague and unconvincing are reasonable. The jury must have rejected this version of events. It was, in my opinion, open for it to do so. It was not a matter that gives rise to a reasonable doubt in my own mind. 74 The Baz family were involved in one of the fights and left early to avoid being subject to further violence. Mrs Aida Baz is a friend of Mrs Abbas, the Appellant's mother. (See Transcript, Vol 3, 10.6.04, p57; also see re-examination of Olivia Baz, Transcript, Vol 3, 10.6.04, p84.) Mrs Baz's evidence was that during the fight the Appellant was standing to the side, not involved in the violence, in which her husband and their daughter were being attacked. (Transcript, Vol 3, 10.6.04, pp57, 61 & 70.) She also gave evidence that one of the perpetrators of the violence towards her family was Anthony Moubarak. (Transcript, Vol 3, 10.6.04, pp54-55.) Olivia Baz, daughter of Aida Baz, gave evidence that she had been involved in a fight with Leila Moubarak, Anthony Moubarak's sister. (Transcript, Vol 3, 10.6.04, p80.) She said that she had not seen the Appellant involved in the fight and that she saw him after the fight, at which point there was nothing unusual about his face. (Transcript, Vol 3, 10.6.04, p83.) 75 In re-examination, the Crown tried to suggest that it was implausible that the Appellant would stand by and watch the Baz family be beaten up, given the relationship between Mrs Baz and Mrs Abbas. (See Transcript, Vol 3, 10.6.04, p84.) The Crown also questioned the Baz family noticing the Appellant in the context of trying to fend off substantial violence towards Mr Elbaz and Olivia Baz. (Transcript, Vol 3, 10.6.04, p84.) 76 The Crown present a number of arguments on appeal to discredit the exculpatory evidence of Mrs Baz and Olivia Baz. (See Crown Submissions at [22]-[27]; Appeal Transcript, p25(30).) First, it is pointed out that the video evidence has the Baz family leaving at a time when they could not have witnessed the whole incident (at [22]). Secondly, the Crown submits that the relationship between Mrs Baz and Mrs Abbas is not consistent with the Appellant standing idly by as the Baz family were attacked by others (at [23]). Thirdly, that the video recording of the fight (Camera 8) was not consistent with the evidence of Mrs Baz and Olivia Baz, even if they had seen anything (at [25]). Finally, the family's evidence is said to be unconvincing; because they were in the middle of a large fight they were unlikely to be aware of what else was happening. (Appeal Transcript, p25(30).) The Crown submissions are persuasive and, again, it was clearly open to the jury to discount this evidence. Again, this was a matter for the jury and does not raise a reasonable doubt in my mind. 77 One of the victims, Antoin Bou Najam, gave an account of being attacked by three men, one of whom had blood on his face and a gun in his hand. (Transcript, Vol 3, 8.6.04, pp9 & 17.) The witness did acknowledge that he had been hit in the eye (Transcript, Vol 3, 8.6.04, pp9 & 16) and was tipsy at the time of the shooting (Transcript, Vol 3, 8.6.04, p 15). There is video evidence suggesting that more than one person entered the kitchen at the relevant time. Again this kind of discrepancy is to be expected in the circumstances. Whether this version casts any doubt on Anthony Moubarak's evidence was also a matter for the jury. 78 The account of Talal Rifai has been referred to above. It was clearly rejected by the jury. It is not of a character which raises a reasonable doubt in my mind. 79 The Appellant has referred the Court to images on the video which record the movement of various other men who looked similar or were wearing similar clothing to the Appellant. However, the Appellant is very distinctive on the tape due to his large stature and shiny, bald head and is unlikely to have been confused with any of the men pointed to in the Appellant's chronology. These men can be distinguished by the fact that they have hair on their head, even if closely shaved, are noticeably shorter or slighter than the Appellant, or have some sort of facial hair. The only man pointed to who looks more like the Appellant than the others was a large man wearing an open white shirt who entered the restaurant from the kitchen side at 18:45:40 (Camera 4) and 18:45:44 (Camera 5). However, this entry is less than half a minute before the first victim is seen exiting the restaurant, and so it is implausible that this man was an alternate gunman.

[36]

The Video Evidence 80 This evidence establishes conclusively that the Appellant was present at Adeel's Palace during the relevant period (i.e. during both the fight and the shootings) and went to the kitchen just before the shootings occurred. (The defence witness Talal Rifai initially denied that the Appellant had re-entered the premises, as shown on the tape, although he seemed to accept at the end of his evidence that the Appellant must have gone upstairs again. See Transcript, Vol 5, 22.6.04, pp780-781 & 792).) The Appellant exited from the kitchen just after the shootings. 81 The video evidence also provides an objective indication as to the appearance of the accused on the night in question. Whether the video evidence inculpates the Accused by demonstrating that he was present at the relevant times, or gives rise to a reasonable doubt because there is no indication of blood on his face, is at the heart of this appeal. 82 Mr Frearson submitted that the jury was in a better position to assess the surveillance evidence than this Court because they had the advantage of knowing what all the witnesses looked like. Having viewed the video, I would agree with this submission, as the Appellant is the only one readily identifiable because the Court has labelled photographs of him. However, it is his appearance that matters. 83 There were twelve cameras installed at Adeel's Palace, surveying the entrances and the dinning hall, extending to the entrance of the kitchen but not the kitchen where the shootings actually took place. The most significant images come from Cameras 3, 4 and 5, which monitor the main stairs into and out of Adeel's Palace. There were relevantly two flights of stairs, which were ascended by turning in a right hand direction. The cameras captured images from just above eye level and favouring the right side of people as they ascended the stairs and entered the restaurant. (See Transcript, Vol 5, 22.6.04, p759; also p785.) The images from the different cameras are of varying quality, as detailed below, but those from Cameras 3, 4 and 5 have the greatest clarity. 84 There is no real contest regarding the time and location of the Appellant's entrances into Adeel's Palace, including after the fight and before the shootings. (See Crown Summary pp13-14.) It is also accepted that the Appellant exited from the kitchen door after the shootings, about a minute before the victims were taken out of the restaurant. (Recorded on camera 4 at 18:45:17 and leaving the building on camera 3 at 18:45:26; see Exhibit U1 and W, photographs 11 & 12 for stills.) 85 I note that the times recorded on the videos accurately record the passage of time but do not represent the actual time of day. I note that all the cameras record images every few seconds, meaning that there are segments of movement for all individuals that are not recorded. 86 Camera 1: Records the entrance from the street to Adeel's Palace. Images are of insufficient quality or closeness to note more than the entry and exit of individuals (providing the viewer knew the individuals concerned). 87 Camera 2: Records the car park. Like Camera 1, the images only enable the viewer to note the movement of individuals. 88 Camera 3: Records the first set of stairs that mark the main entrance/exit into Adeel's Palace. The images are of much better quality than Camera 1 & 2. The images are clear enough, and close enough, to see the facial features of individuals, including light and shade (e.g. how closely shaven men are).

[45]

Conclusion 97 The Crown at trial built a strong, though largely circumstantial case. The identification/resemblance evidence identifying the Appellant, and only the Appellant, as the man involved in a fight with Anthony Moubarak and in the shooting, the video evidence of the Appellant heading towards the kitchen immediately before the shootings and departing from the back of the kitchen area immediately afterwards, when combined with the description of the gunman as having blood on his face, and the fact that the Appellant suffered an injury to his face that night for which no plausible explanation was provided, does amount to a strong case capable of supporting a conviction. 98 However, the absence of visual evidence of blood from the surveillance cameras does raise the prospect of a reasonable doubt. Some of the cameras were in a position to capture clear and relatively close images of the Appellant entering and exiting at relevant times. None of the images show blood on his face, or the type of deep gash that may have been expected given the medical evidence and the preponderance of witness accounts as to the amount of blood on the gunman's face. The Crown has offered various explanations for this. The most compelling explanation, if this Court were in a position to accept it, is the suggestion that technical deficiencies would make capturing detail such as blood unfeasible. However, in my mind, the quality of certain images undermines the strength of this submission. 99 This case comes down to one issue. Does the absence of a clear video record of blood or injury on the face of the Appellant raise a reasonable doubt about his guilt? In my mind it does raise a reasonable doubt. 100 The preponderance of the evidence is that there was a significant amount of blood on the face of the alleged perpetrator, both at the time of the fight with Anthony Moubarak and at the time of the shooting. In the absence of any expert evidence that the CCTV system may not pick up such detail, the complete absence of any visual manifestation of blood on the Appellant, or of any conduct consistent with such an injury, on the video footage, creates in my mind a reasonable doubt, notwithstanding the other evidence. 101 There is no reason to believe that this deficiency in the Crown case can be remedied without some modification of the Crown case at the trial or new evidence. Nevertheless, the strength of the balance of the case is such that, in my opinion, this Court should not direct a verdict of acquittal. Whether there should be a second trial should be left to the exercise of a prosecutorial discretion. 102 The orders I propose are:

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