Sakhra v R

Factual background

1. All five counts arose out of four robberies which occurred in the evening on successive days from 9 to 11 October 2017. The robberies were said to have been committed variously by Messrs Barzani, Majeed, Mariz and the appellant, participating in joint criminal enterprises. Two of the robberies occurred on 9 October, one on 10 October and one on 11 October, before the four men were arrested in the early hours of the morning on 12 October. In what follows, I shall briefly explain the facts the subject of counts 1, 4 and 5 by way of context and so as to explain the directed verdicts of acquittal on those counts, but otherwise focus on counts 2 and 3.
2. It was not controversial that each of the four robberies occurred. What was in issue on the appeal was the appellant's presence at and involvement in the second and third robberies.
3. The first robbery (count 1) was said to have occurred at Mount Street, North Sydney after 11:00pm on Monday, 9 October 2017. The evidence was that the victim had a knife put to his chest and was told to, and did, hand over his phone, phone accessories and wallet containing $40. He suffered a knife wound to the chest which required stitches. The Crown case was that the person who approached, robbed and stabbed the victim was Mr Barzani. There was no evidence that the appellant left the vehicle (if indeed he had been in the vehicle) or had any relevant discussions with Mr Barzani capable of establishing a joint criminal enterprise.
4. The second robbery (count 2) occurred at around 11:40pm on the same evening at Bay Road, North Sydney. The victim, Mr Shin, was approached by a man who threatened him with a knife and told him to give the man his belongings. Mr Shin refused and the man slashed his knee with the knife. Mr Shin gave the man his iPhone, his wallet containing $50, driver's licence and cards in his name, and his Nike gym shoes in an Ecko bag. Mr Shin gave evidence that a second man was present. The first man was said to have passed the second man the Ecko bag with the victim's shoes in it before the second man moved away. The men began to walk toward a car which was parked some 50 metres away on Bay Road, and Mr Shin crossed the road to return home, walking in the same direction as the two men but on the opposite side of the road. The first man ran toward Mr Shin again with the knife, before Mr Shin told the man he was going home and the two men returned to the car. Mr Shin gave evidence that neither man got into the driver's seat and that the second man "probably entered the left front seat". The Crown case at trial was that the first man was Mr Barzani and the second man was the appellant. Police recovered a white cloth bag with jogging shoes in it and a lighter from the scene. I shall return below to Mr Shin's evidence of the description of his assailants and their accents.
5. The third robbery (count 3) took place on Tuesday, 10 October 2017 a little before 11:00pm on Russell Street, Wollstonecraft. The victim, Mr Boyle, gave evidence that as he was walking down the road, three men wearing hooded jumpers stepped onto the pathway in front of him; one jumper was light and the other two dark. He stopped, attempted to turn the other way because the men "appeared suspicious", and was surrounded by the men with his back to a retaining wall. One of the men, standing between the other two, had a knife. The man pointed it at Mr Boyle and told him to "hand over" his property. He did so, handing over a Dell branded work laptop, phone, Armani watch and wallet containing his driver's licence and bank cards. He was then told to "leave" or "hurry up" and ran down a side street.
6. The fourth robbery (counts 4 and 5) took place around 10:40pm on 11 October 2017 at Spencer Road, Mosman. The victim gave evidence that he was approached by two men, stabbed in the shoulder and back and "pummell[ed]" by them. His possessions were not taken. The Crown case was that the two men were Mr Barzani and Mr Majeed. Again, there was no evidence that the appellant was involved. Indeed, Mr Mariz gave evidence to the effect that the appellant was not involved.
7. Some two hours later, around 12:30am on 12 October 2017, police pulled over a silver Honda Civic on Miller Street, North Sydney. Mr Mariz was the driver, Mr Barzani the front passenger, Mr Majeed the rear offside passenger, and the appellant the rear nearside passenger. The men were removed from the vehicle and searched. Mr Barzani had been in possession of a knife. Nothing untoward was found on the appellant. The vehicle was searched and a Dell laptop, a laptop charger and three iPhones were found under the front passenger seat, sealed in a plastic shopping bag. When the laptop was opened, a number of cards were found, including Mr Shin's licence. Messrs Mariz, Barzani, Majeed and the appellant were arrested. Mr Boyle attended the North Sydney police station on 18 October 2017 and identified his laptop and watch from photographs he was shown; he later retrieved his laptop and iPhone, which he was able to unlock with password and passcode respectively, and his watch.

The evidence at trial

1. The most important witnesses in the Crown case based on counts 2 and 3 were the two victims Messrs Shin and Boyle, and Mr Mariz. Mr Mariz was the main Crown witness, and was cross-examined (through a number of Arabic interpreters) over some four days.
2. Mr Mariz had pleaded guilty to counts 1 to 4 and received a 50% discount to his sentence which included a 25% discount for assistance in the form of his willingness to give evidence. In examination in chief, however, Mr Mariz did not accept responsibility for his involvement in the offences, stating "I pleaded guilty because I was driving the car, not because I was participating in what they were doing". Indeed, he had filed a notice of intention to appeal against his convictions. The Crown made an application under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Mariz as an unfavourable witness, to which the trial judge acceded. In summing up, the trial judge warned the jury, in accordance with s 165 of the Evidence Act, that Mr Mariz's evidence might have been unreliable, in particular, because he might have sought to shift the blame from himself and downplay his involvement.

Evidence as to appearance

1. Mr Shin was questioned as to the appearance of the second man as follows "Q. And how do you describe the second man that you saw, how tall was he? A. The second man definitely looked like bigger than me, he looked like around 180, then he had some chubby build. … Q. And what about his complexion, his skin colour? A. I didn't see his skin colour very well. But I can say he - he had between light and brown colour, just. Q. And what about his hair colour? A. He also had some dark hair colour. Q. Any facial hair? A. I didn't see the facial hair."
2. In cross examination, Mr Shin agreed that the second man had "short hair". Mr Shin agreed that he had also said that the second man had short hair in a written statement prepared shortly after events. The cross-examination continued: "Q. The second male did not have long hair, correct? A. Yes. Q. The second male did not have a ponytail or a man bun? A. I didn't see that. Q. You didn't see that? A. No."
3. Photographs of the appellant taken after his arrest showed him to have hair that was long on top and a short beard. These photographs, together with photographs of Messrs Mariz, Majeed and Barzani were Exhibit Y at trial. (It was made clear during the course of examination of a police officer that the suspect identification forms preceding the photographs of the appellant and Mr Majeed had been erroneously swapped). That officer agreed in cross-examination that the appellant's hair was "long enough to do a man bun" and confirmed that he had a hair tie in his possession at the time of his arrest. Another officer who was present when the appellant was arrested described him as having "long, black hair with a short beard".
4. On 17 October 2017, Mr Shin attended the police station and participated in an identification parade. He was shown two sets of 20 photographs. The second set contained a picture of the appellant. At trial, Mr Shin agreed that he went through the photographs seven times and carefully selected photographs 1 and 12. Neither of these depicted the appellant.
5. In relation to the first man, Mr Shin agreed, again consistently with his statement, that he had "curly hair" and "sounded like he had an Australian accent". The questioning continued: "Q. There didn't appear to be an accent that came from another country, or anything like that? A. No, just like you. English was his first language."
6. There was evidence before the jury that all four men spoke with accents.

Objective evidence

1. Two images were tendered of a vehicle (a Hyundai with the registration number ending in 0RS) travelling south across the Harbour Bridge just after midnight and west on WestConnex shortly before 1:00am on 10 October 2017. The images showed a driver and passenger, whom Mr Mariz identified as himself and Mr Barzani respectively. The second image also showed an arm extended out of the rear passenger side window. Expert evidence matched fingerprints and swabs taken from the vehicle to Mr Majeed, Mr Mariz, Mr Barzani and, through fingerprints taken from the interior of the offside rear passenger window and a swab of the front passenger armrest, to a Mr Ghazwn, who was a friend of Mr Mariz. It seems that attempts were made to subpoena Mr Ghazwn, but without success.
2. Mr Barzani's DNA was also matched to a lighter recovered from the location of the robbery. There was no DNA evidence linking the appellant to the vehicle or to any object recovered from the scene, including Mr Shin's property recovered on 11 October.

Evidence of Mr Mariz

1. Mr Mariz gave divergent accounts of the appellant's involvement in count 2. It appeared that, when interviewed by police in the hours after his arrest, Mr Mariz said that the appellant had left the vehicle. The full record of the interview was not in evidence, however the following exchange occurred when Mr Mariz was questioned at trial in relation to the answers he gave in that interview: "Q. Question 329, 'So did, um, JB and Usman get out of the car at that one?' You answered, 'Oh, in all this incident, ah, JB, ha, used to attack, ah, or, ah, do that - do that offence. Usman used to check the safety of the place and in case the other, the victim, hit back, um, JB, he will hurry, ah, to help him.' Do you remember giving that answer to that question?'. A. INTERPRETER: Yes. Q. Is it the truth? A. INTERPRETER: Yes. … Q. Question 330, 'Okay, so Usman was - got out of the car to assist? Usman got out of the car to assist?' Answer, 'Yeah'. A. INTERPRETER: Yes, he got out of the car to check the road but he didn't do anything."
2. This evidence was linked to count 2 by a preceding question which referred to the victim who was "slashed on the knee". A further exchange was as follows: Q. Question 383, police officer says, 'No, okay. I just want to confirm, the second robbery on the Monday night was the Asian victim that had his licence taken, he [sic] with the knee slashed. Was that JB and Usman?' You replied, 'Just JB.' A. INTERPRETER: Yes. Q. Question 384, police officer said, 'Just JB?' You answered, 'Ah ha.' A. INTERPRETER: Yes. Q. Question 385, police officer said, 'Did Usman get out of the car?' You replied, 'Yeah.' A. INTERPRETER: Yes, he got out of the car but he was - the door of the car was open and he was standing next to the car. He didn't participate in this incident."
3. However, elsewhere in his evidence Mr Mariz maintained that the appellant did not leave the vehicle. He said in cross-examination by the Crown: "Q. And where you stopped the car the second time did anybody get out? A. INTERPRETER: Yes. Q. Who got out? A. INTERPRETER: Barzani. Q. Did you see where he went? A. INTERPRETER: No. Q. What about the other passenger in the car, did he get out then? A. INTERPRETER: There was only one other person, passenger in the car. Noor wasn't there on that day, on the Thursday [sic]. Q. Did they both get out? A. INTERPRETER: No. Q. Did you see where he went? A. INTERPRETER: No, I asked Usman where did he go, he said he went to the toilet."
4. And later, in cross-examination by counsel for the appellant: "Q. I want to suggest to you that Mr Sakhra only came into the motor vehicle on the last night, being the night of your arrest? A. INTERPRETER: All the time he was with us. All the time he was with us in the car. But he didn't, he didn't do anything. I'm a person who says the truth. If he hasn't done anything, I'll say he hasn't [done] anything."
5. In cross-examination by counsel for Mr Majeed, Mr Mariz said: "[O]n the first day it was only Jutyar [Barzani] who'd go out of the car. And Usman was with me all the time in the car."
6. The appellant's case below was that one reasonably available alternative to the Crown's case was that it was Mr Mariz who stabbed Mr Shin. This was said to have been consistent with Mr Shin's description of the attacker as having had curly hair (in photographs in evidence taken after his arrest, Mr Mariz had curly hair) and the second man having entered the passenger seat of the car (Mr Barzani was seated in the front passenger seat in the toll booth images). It was said also to be consistent with Mr Mariz's knowledge, in his interview by police, that Mr Shin had been "slashed on the knee" and his physical depiction (the video capture of which was in evidence) of the victim holding his right knee. Mr Mariz had otherwise stated that he "didn't know" about the robberies, and agreed that he did not see any of the victims, was not physically present at any of the robberies and did not see any of the robberies occur. In light of that evidence, the conflicting evidence that he had observed, or at least knew the details of, Mr Shin's wounding was said to support an inference that Mr Mariz was one of the two men involved. It was put to Mr Mariz in cross-examination that Mr Sakhra was "an easy target for you because he's in the car on the last night, so you can put the blame to whoever was in the car". Mr Mariz denied this.
7. The appellant also submitted that Mr Mariz's initial objection to having his photograph taken by police was due to a concern that he would be identified by the victim, and that, as Mr Mariz had said that both he and the appellant had remained in the vehicle, the jury could not be satisfied beyond a reasonable doubt that the second man had been the appellant and not Mr Mariz.

Evidence as to appearance

1. Mr Boyle participated in a photo identification parade. He agreed that he did not make a selection from that parade, stating that this was because he "didn't have a clear sight of the people on the night, so it was hard to distinguish them exactly". Mr Boyle gave evidence that he had seen an older model white or silver sedan drive past him shortly before he was confronted by the men, and that the vehicle had appeared to slow down when it had neared him. He was unable to confirm how many people were in the vehicle. He described the man with the knife as shorter than himself (it appears Mr Boyle was just under 6 feet 4 inches) and said all three men were of larger build, darker complexion and had beards. He maintained that, beyond these observations, he could not identify distinguishing features in respect of any of the men.

Objective evidence

1. A third image of a vehicle was tendered, showing a Honda (registration number ending in 66L) travelling south across the Harbour Bridge on 11 October at around 5:15am. Again, the image showed a driver and passenger, whom Mr Mariz identified as himself and Mr Barzani respectively. This was the same vehicle the four men had been in directly before they were arrested around 20 hours later and belonged to Mr Mariz's brother. Again, there was no DNA evidence linking the appellant to the phones or laptop found in the vehicle. Mr Barzani's and Mr Majeed's DNA was matched each to a different knife handle. Fingerprints taken from the vehicle matched only to Mr Majeed (although, as it was not in dispute that the appellant was in the vehicle at 12:30am on 12 October 2017, when it was stopped by police, this evidence does little to indicate whether he had been in the vehicle on the evening of 10 October).

Evidence of Mr Mariz

1. Mr Mariz gave evidence that with him in the car on the Tuesday evening were Messrs Barzani and Majeed, and the appellant. Mr Mariz was largely consistent as to who was with him that evening. There were inconsistencies in the evidence bearing upon which men got out of the car to participate in the robbery. Mr Boyle had given evidence that three men robbed him. Mr Mariz gave differing accounts as to who left the vehicle. A number of his answers were not directly responsive to the questions he was asked. When asked in examination in chief who got out of the car on that night, Mr Mariz replied: "Once or twice Jutyar got out of the car by himself. On the third and fourth time, either Noor or Usmani got out of the car with Jutyar. And every time was someone in the car, either Usmani or Noor."
2. Mr Mariz was questioned about the answers he gave in his interview with police. In relation to whether he remembered driving past the victim, he agreed that he said in the interview "We - we passed him and then we, um, stopped the car and then we got out of the car. They got out of the car". The questioning continued: "Q. We're talking about the second day, the Tuesday, this incident where you passed him, that is, the victim, 'they got out of the car'. Who do you mean, 'they got out of the car'? A. INTERPRETER: On Tuesday, Rajad got out of the car and Noor helped him. Some other times Rajad got out of the car and Usman helped him but all the time Rajad is the one doing - the one that's doing everything. Q. We're talking about this particular question. When you say, 'He was walking and we passed him. Yeah, we passed him and then we, oh, stopped the car and then we got out of the car, they got out of the car.' That incident, who do you mean by 'they'? A. INTERPRETER: I said that clearly we were four people. Rajad used to get out of the car and Noor goes with him. Or Rajad goes out of the car and Usman helps him. But on this specific incident I cannot remember who got out of the car. Q. Question 354, police said, 'But is that the three other people in the car?' There was no answer. 355, 'You stayed in the car?' Answer, 'No, just Noor and the other guy, Usman was the car. Stayed in the car.' A. INTERPRETER: Where was I? Q. Do you remember that question and that answer being asked of you? A. INTERPRETER: This answer, I didn't answer this answer. I was always in the car. I didn't go to get out of the car. Q. The answer to 355, 'You stayed in the car'. 'No, just Noor and the other guy. Usman in the car, stayed in the car.' Do you remember that or not? A. INTERPRETER: No, this also was wrong. I was in the car and Noor and Usman were with me."
3. The questioning continued: "Q. Question 356, police said, 'Usman stayed in the car?' You answered, 'Yeah, when Noor started coming with us, he did not get out of the car.' A. INTERPRETER: Yes. Q. Question 357, 'Usman did not get out of the car?' Answer, 'No.' A. INTERPRETER: Yes, when Noor started coming with us, Usman stayed in the car. …"
4. Mr Mariz later said the appellant and Mr Majeed had gotten out of the car with Mr Barzani, and later still that "[Mr Barzani] got out of the car and Noor got out of the car as well. And Usman got out of the car but stood next to the car". This last answer was preceded by a reference to a person carrying a laptop bag, suggesting it related to count 3, however it is one of many examples where it is not entirely clear to which events Mr Mariz is referring.
5. Again, Mr Mariz had agreed that he did not see any of the robberies take place. However, in relation to count 3, he agreed he told the police that the victim was "tall and big" and said he knew this because Mr Boyle "was walking on the street and I parked the car about 20 metres away". He said he "saw them from the side mirror". That is, Mr Mariz explained that he was able to describe the victim of count 3 because the car was parked on the same street, some 20 metres away, and he had seen the robbery in the side mirror of the car. This evidence contradicted Mr Boyle's evidence that he did not see any other cars on the road he was attacked on. It was, again, the appellant's case below that Mr Mariz was able to describe the victim because Mr Mariz had been (or, at least, could have been) the third man involved.

Directed verdicts

1. As noted above, the trial judge directed verdicts in respect of counts 1, 4 and 5 but not in respect of counts 2 and 3. His Honour noted in his judgment on the s 38 application and other matters, "[a] judge, of course, has no power to direct a verdict at the end of the Crown case on the basis of the Crown case being unsafe and unsatisfactory". That reflects the principle stated in Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51 that: "if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
2. The High Court observed that "the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory" did not provide "any basis for enlarging the powers of a trial judge at the expense of the traditional jury function", and noted that "[t]he power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory … is supervisory in nature". That distinction was stated to be "settled" in Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9 at [10].
3. The trial judge explained to the jury the difference between counts 2 and 3 and the counts which were the subject of a directed verdict. There was evidence in relation to count 2 that two people had robbed Mr Shin, that the appellant, Mr Barzani and Mr Mariz had been in the car, and that Mr Mariz had not left the car, and in relation to count 3 that three people had robbed Mr Boyle, that the appellant, Mr Barzani, Mr Majeed and Mr Mariz had been in the car, and that Mr Mariz had not left the car. There was therefore evidence capable of establishing the offences, even if only by deduction.
4. By contrast, in relation to count 1, there was no evidence that the appellant had left the vehicle, if he had been in the vehicle at all. In relation to counts 4 and 5, there was no evidence capable of establishing that the appellant had been involved in a joint criminal enterprise.
5. In relation to counts 2 and 3, it did not matter that the evidence of the appellant's guilt was "tenuous or inherently weak or vague". As was made clear by Gleeson CJ in R v R (1989) 18 NSWLR 74 at 84-85, a trial judge has no power to direct a verdict of acquittal merely because the judge has formed a view that a guilty verdict would be unreasonable: see also Innes v R [2018] NSWCCA 90; 272 A Crim R 351 at [64] and Director of Public Prosecutions Reference No 1 of 2017 at [56]. Notwithstanding that there was evidence capable of supporting a verdict of guilty, it remains the task of this Court, exercising a supervisory jurisdiction, to determine whether based on the whole of the evidence, the jury's guilty verdicts were unreasonable.

Appeal against conviction

1. There was no dispute as to the applicable principles. These were recently summarised by this Court in Pethybridge v R [2020] NSWCCA 185 at [88]-[89] and Kim v R [2020] NSWCCA 288 at [52]-[56], and derive from M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30.
2. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], it was said that: "[w]here there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'"
3. In Libke, Hayne J (with whom Gleeson CJ and Heydon J agreed) stated that when considering whether the convictions sustained below were unsafe or unsatisfactory, the test is "whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt": at [113]. It was said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45], that "to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence."
4. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ stated at 492-3: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.'" (citations omitted)

Consideration

1. It had been for the Crown to prove at trial beyond a reasonable doubt that the appellant was involved in counts 2 and 3 as part of a joint criminal enterprise. This required the jury to have been satisfied that the appellant had been correctly identified as having been among the men on each evening, had reached an understanding or arrangement amounting to an agreement to commit each offence, and had participated in those joint criminal enterprises: see R v Tangye (1997) 92 A Crim R 545 at 556-7 . The jury, accordingly, must have been satisfied as to the appellant's presence at and participation in counts 2 and 3.
2. A number of matters cast doubt upon the Crown case that the appellant was present at and participated in the offences giving rise to counts 2 and 3.
3. First, there was an absence of objective evidence linking the appellant to either offence. The photograph of the Hyundai on WestConnex early in the morning following the robbery and wounding of Mr Shin showed that there was a third man in the vehicle. However, there was nothing to indicate that that man was the appellant. Indeed, there was DNA evidence that a different man, Mr Ghazwn, had been in the offside rear passenger seat. The other DNA evidence lifted from the vehicle identified Messrs Mariz, Barzani and Majeed but not the appellant. Nor was the appellant identified in the photograph of the Honda following the robbery of Mr Boyle.
4. There was no DNA evidence linking the appellant to Mr Boyle's or the other victims' property recovered from under the front passenger seat of the Honda, more than a day later. These items had clearly been handled after the robberies, as they were firmly wrapped in plastic when they were recovered by police. There was nothing to suggest, contrary to the Crown case, that the appellant was jointly in possession of the property, concealed beneath the seat in which Mr Barzani was sitting, at the time of his arrest. The only independent evidence linking the appellant to the offences was the fact that he was in the vehicle when it was pulled over by police, more than 24 hours after the events the subject of count 3 and 48 hours after the events the subject of count 2.
5. Secondly, neither victim identified the appellant. Mr Boyle did not identify him in the photo identification parade and did not describe any features relevantly distinguishing any of the three men that robbed him. Mr Shin did not identify him either. Indeed, Mr Shin's evidence that the second man had short hair was inconsistent with that person having been the appellant. Mr Shin reviewed the photo identification parade containing a picture of the appellant 7 times and did not select his image, though he did make two other selections. Although the victim's evidence that the first man had curly hair was consistent with that man having been Mr Mariz, it appears that no attempt was made by police to conduct an identification parade containing a photograph of Mr Mariz.
6. Mr Shin's evidence that the first man had an Australian accent also did not match the accent of any of the four men. On the Crown case, the jury was required to accept Mr Shin's evidence that two men were involved in robbing and wounding him, but reject his description of the accent of the first man and the appearance of the second. It is no doubt open to a tribunal of fact to accept only part of a witness's evidence. Juries are traditionally and appropriately instructed that they are not obliged wholly to accept or wholly to reject what a witness says, but are free to accept part and to reject part of his or her account: KBT v The Queen (1997) 191 CLR 417 at 424; [1997] HCA 54. The jury in this case was so warned. However, Mr Shin's description of the second man was materially inconsistent with the Crown case, and this inconsistency far from being a peripheral matter was the only evidence other than that of Mr Mariz capable of placing the appellant at the scene.
7. Thirdly, there was a further aspect of Mr Shin's evidence which raised doubt as to the appellant's guilt on count 2. In examination in chief Mr Shin said that the second man was present before he was wounded and robbed. In cross-examination he said that there was "no one" else around when his knee was slashed and agreed that it was only after he handed over his property that he saw the second man. He also agreed that this version of events was consistent with his written statement, prepared shortly after the events occurred. He maintained that the first man passed the bag containing his shoes to the second man and that the second man then moved away. This testimony raises doubts as to the second man's participation in any joint criminal enterprise. The fact that the bag containing the shoes was left at the scene is also inconsistent with the second man having an intention permanently to deprive Mr Shin of his property, or of sharing a common purpose to commit the robbery. As was pointed out by counsel for the appellant in this Court, it is indicative of conduct more akin to an accessory after the fact than a participant in a joint criminal enterprise.
8. Fourthly, and crucially, there were serious difficulties with Mr Mariz's evidence which undermined his and its credibility and reliability. The Crown accepted on appeal (and came close to accepting, if it did not accept, at trial) that the only evidence placing the appellant at the second robbery on 9 October 2017 and at the robbery on 10 October 2017 was that given by Mr Mariz. The Crown's concession was rightly made. It followed that satisfaction beyond reasonable doubt of the appellant's guilt in respect of counts 2 and 3 required the jury to believe that Mr Mariz had told the truth in his testimony implicating the appellant in those offences, and to disbelieve Mr Mariz's testimony to the contrary. Such a finding in turn was complicated by two classes of difficulty: general matters going to Mr Mariz's credit and reliability and specific inconsistencies in relation to facts in issue.

General credit and reliability of Mr Mariz

1. First, early in Mr Mariz's evidence the Crown obtained a direction that he was a hostile witness. On only the 6th page of his evidence in chief, he denied knowing that there had been two robberies on Monday 9 October, with the prosecutor saying (in the absence of the jury) that it was clear that "he's not making an honest attempt to give evidence".
2. Secondly, the entirety of Mr Mariz's testimony was given in Arabic and translated by an interpreter. In summing up, the trial judge stated: "It was difficult also, to be perfectly frank, to know whether the quality of the work done by the interpreter, was also undermining some of the answers given. I say that only from impression. I, of course, do not speak the language of Farsi [sic] to understand it, but it did seem at times that things were lost in translation, to some extent."
3. That is borne out by my review of the transcript. An example is the following evidence in chief: "Q. When did you become aware that a robbery had occurred? A; INTERPRETER: After he came back to the car, he was speaking with his friends. I didn't understand what they were talking about. HIS HONOUR: Did you get that, Madam interpreter, or not? INTERPRETER: No, cause he's interrupting me, that's why."
4. On appeal, the Crown conceded, in my view correctly, that this was a matter that this Court would take into account in considering the reasonableness of the verdict.
5. Thirdly, the trial judge also described Mr Mariz's evidence as "imprecise" and noted that he tended to speak in general terms; again, this is borne out by the transcript, including by reference to frequent instances where Mr Mariz's answer was not responsive to the question asked. It is not clear whether this imprecision, generality and unresponsiveness were attributable to language or translation difficulties, or to an unwillingness genuinely to answer questions, or both, but these features cast doubt on the reliability of his evidence.
6. Fourthly, Mr Mariz admitted, on the eighth day of the trial and the fourth day of his cross-examination, that he had consumed "ice" (crystal methamphetamine) on each of 9, 10 and 11 October 2017. He had previously said that for "three days" he "did not eat, drink or sleep" and agreed that by the time of his interview with police he had been "utterly exhausted". Drug use and exhaustion were capable of having undermined the reliability of his recollections. Indeed, Mr Mariz agreed that his memory had been affected. In addition, these statements were made after he had previously denied criminal responsibility for the offences to which he had pleaded guilty, claimed that his lawyer told him "you have to say that you're guilty", and claimed to have been "forced to drive" the vehicle. He went so far as to agree that he had been "virtually kidnapped". He also accepted that he lied to police in relation to having been shown a photograph of the victim in count 1, as an explanation for how he knew what the victim looked like. Each of these instances of untruthfulness related to a matter which could have had, or which Mr Mariz might have perceived could have had, a bearing on his criminal responsibility for the offences. This significantly undermines the probative value of his other evidence which might also have sought to diminish his involvement in the offences. An additional motive to lie was that he risked being resentenced if he did not give evidence in accordance with his plea deal.

Specific inconsistencies

1. The Crown relied, to establish the appellant's role and involvement in the joint criminal enterprise, on the statement by Mr Mariz, made in his interview by police and reproduced above, that "Usman used to check the safety of the place and in case the other, the victim, hit back, um, JB, he will hurry, ah, to help him". The Crown referred to the appellant's "physical presence" as having been "designed to assist Barzani in Barzani's robbery of Shin". Presence coupled with readiness to give aid may be sufficient to found a joint criminal enterprise to commit a crime: R v Tangye at 557. However, in that same interview to police, Mr Mariz said that the appellant had stayed next to the car which, on Mr Shin's evidence had been parked some 50 metres away, and on three occasions during cross-examination, Mr Mariz maintained that the appellant had not left the car at all.
2. In relation to count 3, Mr Mariz gave evidence that the men who got out of the vehicle were (1) Mr Barzani and either of Mr Majeed or the appellant, (2) Mr Barzani and Mr Majeed, (3) Mr Barzani and both of Mr Majeed and the appellant, and (4) Mr Barzani and both of Mr Majeed and the appellant, but the appellant remained next to the vehicle. He also stated that "we got out" before correcting himself to "they got out".
3. It was open to the jury to accept parts and reject parts of Mr Mariz's evidence. However, the inconsistencies in relation to who did or did not remain in the car at any given time were material; they went to the heart of what the Crown sought to prove by reference to Mr Mariz's evidence (and only Mr Mariz's evidence), namely, that the appellant had been present on each evening and had participated in a joint criminal enterprise in respect of each offence. The inconsistent versions of events put by Mr Mariz detract significantly from the probative value of the version, in respect of each count, on which the Crown relied. The Crown submitted in this Court that Mr Mariz's evidence was of "narrow compass", being that it "went to proving the [appellant] was present at the relevant time of counts 2 and 3 and, that, Mariz did not leave his car". Though these matters may be succinctly stated, they go to the heart of the facts in issue in this case and were the subject of a great deal of conflicting evidence.
4. Mr Mariz had a clear motive to be untruthful in relation to the elements of the offences in issue, namely, the appellant's presence and participation in the robberies. Only if a third and fourth man had been in the car on the first and second night, respectively, could Mr Mariz claim to have remained in the car while each offence took place and thereby diminish the extent of his own involvement in the commission of the offences. At trial, counsel for the appellant submitted that Mr Mariz had falsely described himself as the driver because he may have perceived that his culpability based on his actual role would have been greater. Elements of Mr Mariz's evidence indicated his involvement in the offences went beyond his being the driver. Notwithstanding his claims not to have seen or known about the robberies taking place or to have understood conversations in the car relating to them, Mr Mariz was able correctly to indicate that Mr Shin had been wounded on his right knee and to describe the appearance of Mr Boyle (and, indeed, of the victim in count 1). These matters supported the appellant's submissions at trial that a reasonably available alternative to the Crown's case was that Mr Mariz himself had been one of the two men involved in count 2 and one of the 3 men involved in count 3.
5. Mr Mariz's testimony was attended by a number of other inconsistencies, which need not be summarised, but which included, for example, his confusion in relation to the names of the people who were with him in the car and his answer of "No" to the question whether the people who committed the first robbery were in the car with him when stopped by police. Very commonly, there are inconsistencies in parts of the evidence given by a witness. However, the significance of the inconsistencies mentioned above is that they go directly to the elements of the offences for which the appellant stood trial.
6. The mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. As Basten JA (with the agreement of McCallum and Bellew JJ) said in Palmer v R [2018] NSWCCA 205 at [51]: "At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another."
7. Here, however, the key witness was unreliable and untruthful on many occasions which bore directly upon the Crown case against the appellant, particularly in relation to matters bearing upon Mr Mariz's own criminal responsibility.
8. Finally, Mr Mariz gave evidence that on 9 and 10 October 2017 he did not know what the passengers in the car had planned to do because he could not understand the language they were speaking. Mr Mariz said in relation to the events of the evening of Monday, 9 October 2017 that: "A. INTERPRETER: After [Mr Barzani] came back to the car he was speaking with his friend. I didn't understand what he was talking about - what they were talking about, but I felt that there was something there. They were not speaking in English; they were speaking in Kurdish. Kurdish or Afghani, I don't know which - what language they were talking. Q. Did you understand anything they were saying? A. INTERPRETER: No, I didn't understand anything."
9. In relation to Tuesday, 10 October, he said: "Q. When they came back to the car, did they say anything to you, where they had been and what they had done? A. INTERPRETER: Even if they said anything, I wouldn't understand."
10. He reiterated this claim on several occasions. It was one of few matters upon which his evidence was largely consistent. It appears he also made statements in his interview to the police which were substantially to the same effect, although it was only during the trial that he first referred to the possibility that the language spoken had been Afghani as an alternative to Kurdish.
11. It was accepted that Mr Barzani was from Kurdistan and spoke Kurdish, and the appellant was from Afghanistan and spoke Dari and did not speak Kurdish. Expert evidence was tendered without objection in the appellant's case that those two languages were not mutually intelligible. In relation to Mr Majeed who, on the Crown case had also been in the vehicle on 10 October, there was unopposed evidence that he spoke to the other passengers in English only.
12. Mr Mariz's testimony to the effect that the appellant had been in the car speaking a language other than English to another passenger in the car was thus inconsistent with the uncontested expert evidence. More fundamentally, it raises doubt as to whether the appellant was in the vehicle on either day, as opposed to some other man. At least in relation to 9 October 2017, there was DNA evidence consistent with a different person having been present. Taking the Crown case at its highest, Mr Mariz was being untruthful or was mistaken when he said the passengers were speaking Kurdish (or, later, Afghani). If that is so, it further undermines his credibility and reliability as a witness and casts doubt on the probative value of his evidence.

Crown submissions

1. Against this the primary submission by the Crown on appeal was that all issues as to the credibility and reliability of Mr Mariz and his evidence were squarely before the jury, and it was open to the jury nonetheless to be satisfied beyond reasonable doubt of the appellant's guilt. The Crown submitted that: "all of the weaknesses of Mariz's evidence were laid out before the jury. The matters that affected the reliability and truthfulness of Mariz were put comprehensively before the jury for their assessment. Mariz's credibility was subjected to cross examination by three counsel. Mariz gave evidence over six days. The jury had the benefit of having seen and heard the witness (who gave evidence through an interpreter). Three counsel submitted in strong terms that Mariz should not be accepted. It was open to the jury to accept or reject their submissions."
2. The Crown pointed to the "accomplice warning" under s 165 of the Evidence Act and Murray-style direction given by the trial judge, in light of which the jury nevertheless reached verdicts of guilty. The Crown also pointed to the "advantage the jury had in considering all of the evidence bearing upon" the appellant's guilt.
3. It is true that Mr Mariz's credibility and reliability were squarely in issue before the jury. However, that does not make the verdict immune from challenge as unreasonable by reference to the whole of his evidence. This is particularly so where, as here, it is not clear that the jury had a significant advantage in assessing those matters by reason of its having seen and heard the witness give evidence.
4. In oral argument, counsel for the Crown put it that: "[t]here is an advantage in that the jury has in watching Mr Mariz give his evidence be it in a foreign language but then they hear the translation from the interpreter. So they are able to take into account his demeanour when they are assessing his evidence."
5. I asked how, in relation to longer answers given by Mr Mariz, the jury was to discern, so as to assess his demeanour, which part of his answer when he gave it in Arabic was favourable to the Crown case and which part was favourable to the appellant. An example was the answer, reproduced above, to the proposition put to Mr Mariz by counsel for the appellant that the appellant "only came into the motor vehicle on the last night". Mr Mariz responded: "A. INTERPRETER: All the time he was with us. All the time he was with us in the car. But he didn't, he didn't do anything."
6. I am satisfied that, despite its generality, the translation "all the time he was with us" is best understood as a reference to Mr Mariz claiming that the appellant was present in the vehicle on each of 9, 10 and 11 October. The Crown ultimately accepted that, to be satisfied beyond a reasonable doubt of the appellant's guilt, the jury had to accept the first two sentences of this answer and reject the third. Such advantage as the jury may have from seeing the evidence as it is given is diminished when it is given in translation and parts of the same answers are inconsistent.
7. The Crown submitted that it was open to the jury to be satisfied beyond a reasonable doubt of each element required to be proved in respect of count 2 and count 3. It was put that there was sufficient evidence to establish the elements of each offence and, again, that it was a matter for the jury to accept that evidence and reject inconsistent evidence as it must have done to reach a verdict of guilty. That is so, but it does not address the supervisory role placed upon this Court to review convictions that should not be permitted to stand. There was evidence capable of establishing the elements of counts 2 and 3 (were that not so, the trial judge would not have dismissed the application for directed verdicts on those counts). But contrary to the Crown's submission, that is not an end to the matter. As it was put in M v The Queen at 492-3, the question on appeal was whether, "notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'".
8. The Crown also submitted that "the jury did not have to accept much from Mariz". That is true so far as it goes, but it does not much advance the position. This Court is required to review the entirety of the evidence with a view to assessing whether it was open to the jury to return guilty verdicts. The Crown did not identify any rational basis for the jury to have accepted those small parts of Mr Mariz's evidence which pointed to the appellant's guilt, and to have rejected the balance which was inconsistent, and so far as the record of the trial discloses, there is no such rational basis.

Conclusion

1. A jury's verdict is not lightly to be set aside. In SKA v The Queen, French CJ, Gummow and Kiefel JJ stated at [13], by reference to M v The Queen at 494: "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses." (citations omitted)
2. The primacy of the jury's role was reiterated by the High Court in R v Baden-Clay at [65]-[66]: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (citations omitted)
3. The jury's advantage over an appellate court is not without limitation. In M v The Queen, in the context of an appeal court being asked to set aside the verdict of a jury who had seen the witnesses, Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated at 494: "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." (citations omitted)
4. Their Honours continued: "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."
5. Making full allowance for the advantage enjoyed by the jury, and putting to one side the extent to which the jury's capacity accurately to assess Mr Mariz's demeanour may have been undermined by his evidence having been given through a translator, the substantial doubts detailed above remain. I have doubts as to the appellant's guilt. I also do not see how any advantage possessed by the jury could prevent it from sharing those doubts. In particular: 1. There was no objective evidence, including DNA evidence linking the appellant to count 2 and 3 and the identification evidence was inconsistent with or neutral as to the appellant's involvement. The Crown case thus depended entirely on Mr Mariz's evidence to establish that the appellant, and not some other person, was present for and participated in each offence. 2. Mr Mariz's credibility and reliability were undermined by his having consumed crystal methamphetamine on the days that the offences were committed, and the many instances of untruthfulness in his testimony, particularly in relation to matters bearing upon his criminal responsibility for the offences. These issues could not have been explained by the manner in which Mr Mariz's evidence was given. The whole of Mr Mariz's evidence had to be considered in light of these issues and his apparent motives to seek to diminish his own involvement and to give evidence in accordance with his plea deal. 3. Mr Mariz gave inconsistent accounts as to whether the appellant had left the car and, if he did, the extent of his involvement in the offences. These inconsistencies undermined the probative value of the version of events, in relation to each count, on which the Crown relied. 4. In relation to each of count 2 and count 3, the inconsistencies between Mr Mariz's evidence that he had not seen the victims or the robberies and his evidence indicating he knew details of the wound to Mr Shin's knee and the appearance of Mr Boyle, among other evidence, raised doubts as to the truthfulness of Mariz's claims that his involvement in the offences was limited to his having been the driver. 5. In relation to count 2, Mr Shin's evidence raised doubt as to whether the second person, whoever he was, had been present and participated in a joint criminal enterprise to commit the robbery and wounding. 6. Mr Mariz's evidence that he did not understand the conversations between the passengers in the car in respect of counts 2 and 3 because they were speaking Kurdish was inconsistent with either of those passengers having been the appellant, who spoke Dari and did not speak Kurdish.
6. I conclude that, even making allowance for the advantages enjoyed by it, it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt in respect of counts 2 and 3. For those reasons, I participated in the orders made on 16 July 2021.
7. WILSON J: I have had the advantage of reading the judgment of Leeming JA in draft. His Honour's comprehensive account of the evidence, and of the serious flaws in the Crown case, represent my own views, and express why I joined in the orders made by the Court at the completion of the hearing on 16 July 2021. Although serious pause must always be given before the verdict of a jury is set aside, this was a matter in which the jury must have entertained a very real doubt as to the appellant's guilt. His conviction for these offences was a miscarriage of justice.
8. IERACE J: I also agree with the judgment of Leeming JA and with the additional observations of Wilson J.

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