Directions in relation to the failure of Ghanem and Hajeid to testify; directions in relation to the possibility that Tayyab Sheikh was mistaken for Hajeid (Ghanem Ground 6; Hajeid Grounds 5 and 5A)
177 Section 20(2) of the Evidence Act permits a judge to comment on a failure of an accused to give evidence. What is not permitted is for the judge to "suggest" that the accused failed to give evidence because he or she was guilty, or believed that he or she was, guilty of the offence charged.
178 These grounds of appeal relate to certain directions given to the jury before the summing up and between the addresses by counsel for Ghanem and Skaf. The directions arose out of what we have characterised as the improper remarks made in the final address by counsel for Ghanem. Final addresses for the accused were given in the order: Hajeid, Ghanem and Skaf.
179 Ms P had identified Hajeid as the man called "Sammy" who had assaulted her at the park. Counsel for Ghanem suggested to Skaf in cross examination that he was seeking to protect his brother and his brother's friend Tayyab Sheikh by implicating Ghanem. This in turn was linked to the allegation that Skaf had made the threatening gesture towards Chami because he knew that Chami had nominated Mohammed Skaf and Tayyab Sheikh among those present at the park (Tr pp1112-3). Counsel for Hajeid cross-examined Skaf and put to him that a friend of his brother was known as "Sam" or "Sammy" (Tr p1120). Skaf had denied all of these matters and there was no further evidence on them.
180 Notwithstanding, these matters were raised in final addresses on behalf of Hajeid and Ghanem, culminating in Ms McSpedden's broadside attack on Skaf's credibility based upon reminding the jury of her cross-examination of Skaf in which she put these matters to him.
181 As indicated above, counsel for Skaf promptly sought a discharge of the jury; alternatively, protective directions before he commenced his address. He was concerned to have the poison removed quickly from the jury's mind and he had a legitimate interest to know what would be said on the topic in case he might have to address it in his own submissions. There was more than a suggestion that he would make his own comment about the failure of Skaf's co-accused to give evidence unless the judge took matters in hand.
182 In this context his Honour gave the directions now objected to by Ghanem and Hajeid. The full passage is set out below, with emphasis upon the portions of which Hajeid and Ghanem complain on appeal. His Honour said (Tr p1291):
HIS HONOUR: Ladies and gentlemen, before Mr Healey starts, I want to say something. In submissions that were just put to you, submissions were made about possibilities. Mrs Langley put to you in the context that in her submission to Mr Skaf was a liar, that Mr Skaf had denied Tayyab Sheikh was Sammy. Indeed, that was so, he was cross-examined and the question was put to him; "you know Tayyab Sheikh to be Sammy". And he denied Tayyab Sheikh was Sammy. It was put Mr Skaf is a liar. So it was put to you as a possibility Mr Skaf being a liar that it may be that Tayyab Sheikh was Sammy and there was a wrongful identification.
Can I just say this: That submission is not founded on any fact. If a witness has a proposition put to him and denies it, then unless other evidence is called there is no evidence to support it and it is illogical, absolutely illogical to say that because someone isn't telling the truth about some matter generally, because he denies something, that proves it is true. It is illogical and wrong. The only way which it could have been established that Mr Tayyab Sheikh was known as Sammy would have been the calling of evidence to establish that fact; none was called. You can conclude, therefore, there is no evidence whatsoever that Mr Tayyab Sheikh is Sammy.
Similarly the possibility raised that Mr Sheikh may, indeed, have been at the park is supported by no evidence. Mr Skaf denies it, whether he be regarded by you as lacking credibility, there is no evidence he was there. Evidence could have been called to establish that, if it was a matter of importance, but none was called, therefore it can be concluded that there is no evidence that Mr Sheikh was at the park.
That proposition was also referred to by Miss McSpedden in her address, that was the claim that Tayyab Sheikh may have been the assailant. And it was put in the context that in her submission Mr Skaf is an undoubted liar therefore it was said you could consider that as an issue. I tell you now there is no issue for you to consider on that. There is no evidence whatsoever that Mr Tayyab Sheikh was at the park. There was no evidence that Mr Tayyab Sheikh had anything to do with any of the events on this night. And if the persons who wish to assert that was so, Mr Ghanem and Mr Hajeid, wish to establish as a fact that he was there and that he had, they could have given evidence or they could have called him. No evidence was called, therefore you can conclude there is no such evidence that Mr Sheikh was at the park. You thereafter should disregard those possibilities, there being no basis in evidence for those possibilities.
I say this now because Mr Healey has to address you and therefore I have given you that ruling. I direct you on those matters and he need not. If he wishes to go over it he may but he need not deal with these matters because they are matters that are irrelevant.
The evidence as to Sammy is the evidence of the trial. The only evidence given as to Sammy was given by Miss P..... and it was given in the trial. There is no other evidence to suggest anybody else was Sammy.
I will have something to say later on about Mr Skaf and his credibility. That is all I wish to say this at this point. Remove altogether from your minds the notion that you have to consider possibilities based on no evidence. In general terms I can tell you, and it applies to anything said in the trial, if there is any matter of importance that is not the subject of evidence, then you can draw no conclusion about it. It would be unfair to do so. You are not permitted to speculate. The only evidence as to who was at the park is the evidence given in this trial.
HEALEY [counsel for Skaf] : Your Honour, there are just two issues on which I invite your Honour to address the jury on the same basis as part of your all encompassing direction. That is the suggestion that Mr Skaf said words to this effect to his co-accused, "If I go down you are coming with me", that the jury only has Mr Skaf's denials in respect of that. And secondly, that was put by Miss Langley, and secondly my learned friend Miss McSpeddon spoke about the threats to Mr Chami and that Mr Skaf said Mr Ghanem was there to protect another person.
HIS HONOUR: In evidence in the trial when Mr Skaf was being cross-examined it was put to him by Ms McSpedden that during a hearing that occurred in your absence, a hearing that concerned the admissibility of evidence, a Mr Chami came into the courtroom to give evidence at that hearing. And it was put to him that Mr Skaf looked across to him from where he sat in the dock and drew his finger under his chin, in this fashion that I am indicating to you now from left to right, to indicate that the cutting of a throat. And Mr Skaf said, "No, I don't recall it". The question was put, "You don't recall it, or you say you didn't do it?" and he answered, "I didn't do that". It was put that Mr Chami had told police that Tayyab Sheikh and Mohammed Skaf were two people of the eight at the park. Mr Skaf denied that proposition that Mr Chami said that. And it was put to him that in these terms "You are prepared to nominate Mr Ghanem being at the scene rather than somebody else you are protecting, isn't that the case?" And he said, "That is not true". Now, members of the jury, if Mr Skaf moved his hand across his throat in a way that suggested he would cut the throat of a potential witness, he would in fact be committing a serious crime. He would be attempting by intimidation to prevent a witness from giving evidence. That was a crime known as the perversion of the course of justice. Mr Skaf has denied doing any such thing. I might say the hearing was before me.
There is no evidence in this trial that he did any such thing. And yet there are people present at the trial who were here during that session of evidence. Those people include counsel, solicitors for the parties, and the two accused other than Mr Skaf. As well as that there have been people in the gallery, all witnessing what occurred during that time. Not one person has been called to substantiate the claim that Mr Skaf sought to intimidate a witness in a hearing before me or by threatening that he would cut his throat. And you are entitled to conclude from the absence of the calling of any evidence that indeed there is no evidence whatsoever that any such thing occurred. Had there been evidence of such a thing occurring it no doubt would have been called.
Similarly, it is said a threat was made to Mr Ghanem. If such a threat was made, Mr Ghanem could have given evidence of that threat. If that was important to his case. It must have been important to his case, because his counsel suggested to Mr Skaf that the threat had been made. Mr Skaf denied making any such threat. Mr Ghanem did not give evidence that any such threat was made. You can therefore conclude that there is no evidence of any such threat and no such threat was made indeed, because if it had been, evidence would have been given. Counsel operate on instructions from their clients. The client gives instructions that something happened. Counsel acts on the assumption it did happen. It carries the consequence that if it is to have any weight before a jury, evidence has to be given to support it, none was given. Therefore you must disregard any suggestions of these matters that I mentioned bearing on Mr Skaf's credibility.
There is no evidence that Mr Skaf threatened anybody. There is no evidence that Tayyab Sheikh was at the park or was involved in any way. And another person that was mentioned in this context was Mohammed Skaf who is a brother of Mr Skaf. There is no evidence Mr Mohammed Skaf was at the park or any way involved although you were referred by Miss Langley to a photograph this morning which is a photograph of Tayyab Sheikh which shows somebody with curly sort of hair and streaks. There is absolutely no evidence that that person was the person known as Sammy. So you must disregard those submissions in the absence of any evidence to support them and you must draw the conclusion that Mr Skaf made no threats and those persons were not present.
McSPEDDEN: In that last set of directions to the jury Your Honour indicated to the jury that they would be entitled to positive conclude that no such threat, that was the threat in terms of Mr Chami, was in fact made. I would ask your Honour to withdraw that observation. In my submission what the jury is entitled to conclude is that there is no evidence in the trial to conclude that such a threat was made ---
HIS HONOUR: I decline to withdraw that. If a positive assertion is made that a particular event has occurred by the person who could give evidence about it and that person refuses or declines to give any evidence about it then the jury can conclude the event did not occur.
183 In the first bolded section, the judge inferred that Ghanem as well as Hajeid had suggested that Sheikh was at the park. Strictly speaking this was wrong, because the highest that Ghanem's counsel went was to suggest that Skaf was motivated to lie because he knew that another person (Chami) had implicated Sheikh in a statement to police. The two matters were different, but the distinction is a fine one in the context. If the particular factual error was perceived at trial it was allowed to pass without a request for redirection. Even if this was not a deliberate stance it is difficult to see what difference the factual correction would have made beyond drawing further attention to the matter. Rule 4 should be applied as regards this criticism.
184 In this Court Ghanem and Hajeid submit that the bolded portions involved an impermissible comment upon their failure to testify. They take no point about the balance of the direction, which was an emphatic statement to the jury about the absence of evidence to support the defence hypotheses concerning Mohammed Skaf and Tayyab Sheikh being in the park, or Skaf having threatened Chami when the latter came to court.
185 It was submitted that these directions breached fundamental accusatorial principles (RPS v The Queen (2000) 199 CLR 620, Azzopardi v The Queen (2001) 205 CLR 50, Dyers v The Queen (2002) 210 CLR 285). They invited the jury to conclude that certain events did not occur and to reason towards that conclusion by an impermissible manner.
186 The "events" were that Tayyab Sheikh and Mohmmed Skaf were at the park and that Sheikh's nickname was Sammy. There was no evidence of this and the judge was admittedly entitled to tell as much to the jury in emphatic terms. It would also have been open to Skaf to have gone further and suggested that his co-accused had not given evidence because they believed that they were guilty of the offence concerned (cf s20(2)). Skaf's counsel was foreshadowing that he would weigh in strongly in his address unless the judge gave an adequate protective direction.
187 In light of these considerations it is difficult to see that any miscarriage resulted. But the prior question is whether the judge's remarks contained the suggestion prohibited by s20(2).
188 The directions given in the general summing up that followed Skaf's counsel's address were exemplary as regards the Crown's onus. The jury were told that there was no onus on the accused to prove anything (SU 2). His Honour also said (SU 15-16):
The other two accused exercised a right to give no evidence, that is their entitlement. They also exercised a right to call no evidence, that is their entitlement. I have already commented on one aspect of the exercise of that right. That was to say Mr Skaf was attacked and a possible scenario was suggested where other persons were present in the park and one was said to have been Sammy. Hence it was put Mr Hajeid was not Sammy, it may have been somebody else who was Sammy. I have commented on the fact that as they called no evidence about that, they gave no evidence, those were clearly just assertions about which there is no evidence. You can not hold it against them that they have given no evidence. All you can say is that by giving no evidence they put nothing forward to you to assist you in the case. They have relied on what emerges from the Crown case and what criticisms can be made of it.
189 This exemplary direction elicited no request for redirection. It also neutralised any sting from the earlier direction. We reject the submission that the jury were being reminded of the stronger terms of the direction given the previous day in the interlude between the addresses for Ghanem and Skaf.
190 Hajeid submits that merely because there is no direct evidence of a hypothesis consistent with innocence does not mean that the jury may disregard the possibility. Accordingly, Judge Finnane should not have told the jury to disregard the possibility that Tayyab Sheikh was at the park. R v Al Khair (NSWCCA 20.6.94). R v Osman, NSWCCA, 10 March 1998 and Adler [2002] NSWCCA 180 are cited. It is submitted that the defence was entitled to put forward the hypothesis that the appellant had been mistaken for another man. However, the hypothesis being addressed by counsel at trial went much further, and it rested upon an evidentiary basis that was wholly absent. In any event, this particular submission does not really address the s20(2) issue, because the appellants accept that it was open to the judge to instruct the jury that there was no evidence of the Tayyab Sheikh hypothesis.
191 The three cases cited all deal with a situation where the evidence is "susceptible of a reasonable explanation other than that the accused committed the crime" (Al Khair at p38 per Priestley JA, Gleeson CJ and Wood J concurring). This Court has recently emphasised that a hypothesis must be both "reasonable and available on the evidence" (R v Park [2003] NSWCCA 203 at [56] per Shaw J, Ipp JA and Buddin J agreeing). Since there was no evidence and since counsel's submission was quite improper, it was well open to the trial judge to make the comment - so long as the prohibition in s20(2) was not breached (another matter entirely).
192 The two appellants submit that the direction invited the jury to draw an adverse inference from the failure of the defence to call evidence on the issue, thereby contravening Dyers. There was in terms no direction along the lines of Jones v Dunkel (1959) 101 CLR 298. Nevertheless, this was not a case in which the facts were peculiarly within the knowledge of the accused, sufficient to attract the reasoning in Weissensteiner v The Queen (1993) 178 CLR 217 as explained in Azzopardi at 74 [64]. It follows that the general rule applied, prohibiting a direction that the accused would be expected to give evidence personally or call others to give evidence (see Dyers at 291[5], 305[52], 328[121]).
193 Ghanem and Hajeid also submit that the direction was unfair because it was capable of being seen by the jury as judicial criticism of the manner in which they had each conducted their case at trial. In a sense it obviously was, but the thrust of the submission was that the criticism was unjustified and that the jury were being invited to reason that Ghanem and Hajeid were guilty of the offences charged because they failed to adduce evidence in support of the hypotheses raised by their counsel in the addresses.
194 These appellants also submit that the reference to counsel operating on instruction from clients carried a suggestion that the client told lies to his counsel (cf R v Birks (1990) 19 NSWLR 677 at 690-2, 702-3). We do not agree. If this inference had been conveyed in the atmosphere of the trial, one would have expected counsel to have raised this particular complaint at the time.
195 In our view, the direction given to the jury shortly before counsel for Skaf addressed did not offend s20(2) or otherwise cause the trial to miscarry. The context was specific and confined to scotching the improper suggestion raised in counsel's address. The directions given at that stage of the trial and the terms that were used would not have suggested anything to the jury beyond despatching from their minds the Mohamed Skaf/Tayyab Sheikh hypothesis and the unproven springboard upon which it had been raised. In other words, the comment did not suggest that the defendants had failed to give evidence on the hypothesis raised by their counsel because the defendants were, or believed that they were, guilty of the offence charged.
196 Hajeid submits that the real sting in the tail was the direction that, in the absence of evidence to support the submissions of counsel, the jury "must draw the conclusion that …. those persons [Mohammed Skaf and Tayyab Sheikh] were not present" (Tr p1294). This "bottom line" as it were is unfortunately expressed in the form of a direction to find a fact, but it does not infringe s20(2). It is really just an emphatic direction that the jury rely on the evidence and only the evidence. The submissions of counsel with their illogical hypotheses erected upon Skaf's denials were not to be used as a substitute for evidence. There was no evidence about these two men being in the park, end of question. This did not suggest anything about the appellant's guilt or his belief as to guilt.
197 The exemplary direction in the summing up did not only omit any problems associated with the earlier direction. It corrected the earlier direction by instructing the jury not to hold it against the appellants that they gave no evidence on the issue that their counsel had sought to raise.
198 We therefore reject these grounds.