Shamoun v R

Catchwords

249 CLR 571 Caristo v R [2011] NSWCCA 7 Collier v R [2012] NSWCCA 213 Dinsdale v R [2000] HCA 54202 CLR 321 Hawi v R [2014] NSWCCA 83 Jiang v R [2010] NSWCCA 277 M v The Queen [1994] HCA 63181 CLR 487 MFA v The Queen [2002] HCA 53213 CLR 606 MacKenzie v R [1996] HCA 35190 CLR 348 Mansaray v R [2015] NSWCCA 40 Markarian v R [2005] HCA 25228 CLR 357 Power v R [1974] HCA 26228 CLR 618 R v MD [2015] NSWCCA 37 R v Murray (1987) 11 NSWLR 12 R v Simpson [2001] NSWCCA 53453 NSWLR 704 SKA v The Queen [2011] HCA 13243 CLR 400 Trad v R [2009] NSWCCA 56194 A Crim R 20 Zreika v R [2012] NSWCCA 44

Judgment

HOEBEN CJ at CL: Offences and sentence On 6 February 2012 the applicant was indicted for the murder of Richard Carruthers (the deceased) on Sunday 24 June 2007 shortly before 4am at the residence at Castle Hill where he resided with his wife, Thi Lian Phuong Nguyen.
The applicant was indicted for a second offence namely the malicious wounding of Thi Lian Phuong Nguyen which occurred at about the same time.
On 28 March 2012 after a 36 day trial before Bellew J and a jury, the applicant was found guilty of those offences.
On 29 June 2012 the applicant was sentenced to imprisonment with a non-parole period of 20 years, commencing 4 June 2009 and expiring 3 June 2029, with an additional term of 7 years, expiring 3 June 2036. In respect of the offence of malicious wounding, the applicant was sentenced to imprisonment with a non-parole period of 9 months, commencing 4 June 2009 and expiring 3 March 2010, with an additional term of 3 months, expiring 3 June 2010.
The applicant was indicted with a co-accused, Dirk Marten Slotboom (Slotboom), in respect of the murder charge. Slotboom was indicted in the alternative as an accessory before the fact to the murder in that he procured it. In the further alternative, Slotboom was indicted as an accessory after the fact in that he paid money to have the murder committed.
The jury was undecided on the three charges against Slotboom. He was remanded on bail for a further trial after which he was acquitted.
The applicant seeks leave to appeal against his conviction and sentence. Leave is required in the conviction appeal because Ground of Appeal 1 raises questions of fact and Grounds 2 and 3 require leave pursuant to Rule 4 of the Criminal Appeal Rules in that they assert errors in the trial judge's directions which were not raised at trial.
In relation to his conviction, the applicant relies upon the following grounds: Ground 1 - The verdict of the jury should be set aside on the ground that it cannot be supported having regard to the whole of the evidence. Ground 2 - The reference in the summing up to circumstantial evidence "not necessarily being less reliable than direct evidence" gave the subject evidence undue and disproportionate weight. Ground 3 - His Honour erred in failing to give appropriate directions as to how the evidence of the applicant's co-accused and witnesses called in support should be considered by the jury. CROWN CASE AND EVIDENCE AT TRIAL
The Crown case was that the applicant stabbed the deceased for money to be paid by Slotboom, who procured the killing through intermediaries.
At the time of his death in June 2007, the deceased lived with his wife at Castle Hill. He operated a business known as "Water Features Australia" which specialised in the installation and maintenance of water features of various kinds, including fountains and ponds.
The deceased had once worked for Slotboom. He left his employment in acrimonious circumstances before setting up a business which was in some ways similar to, and thus partly in competition with, that conducted by Slotboom. It was the Crown case that Slotboom, motivated by the circumstances in which his association with the deceased had ended, wanted the deceased harmed. The Crown alleged that Slotboom was introduced to Saad (a pseudonym) through two third parties, Andrew Maatouk ("Maatouk") and Robert Wakim ("Wakim") and that Slotboom requested Saad to assist him in having the deceased harmed. The Crown alleged that in turn, Saad enlisted the applicant to help carry out the co-offender's request.
The applicant was born in Iraq and migrated to Australia as a refugee when he was aged 21. He was aged 24 at the time of the murder. He suffered a serious injury to his right leg and knee in a motor bike accident in either 2005 or 2006. He had poor literacy skills which, together with the effects of the motor bike accident, prevented him from obtaining an apprenticeship. Following his arrival in Australia until the time of the murder, he was doing labouring work from time to time. He had been using ecstasy (MDMA) and cocaine on a recreational basis from about 2005.
Saad discussed the matter with the applicant (who was also known as Ricky) whom he had known for some 12 months and whom he saw regularly. Saad alleged that the applicant said "Give him a price and we'll do it".
Saad said that on 23 June 2007 the applicant came to his place at Merrylands at about 8-9pm and that he spent all night with him. They first drove to the Star City Casino, then returned to Parramatta Road after midnight. They next attended "Beirut by Night" at Lidcombe, however, were refused entry as it was after midnight. He said that the applicant was well dressed. He and the applicant then drove to his (Saad's) place at Merrylands and played "X-box".
While there the applicant changed into Saad's "trackies or jeans" and put on a jacket which was supplied by Saad. The applicant put on Saad's white Nike shoes. Saad said that he drove the applicant to Castle Hill in his blue Holden utility and parked in a street around the corner from the deceased's house. Both alighted from the utility, looked over the back fence and had a cigarette. After they got back into the utility and Saad had commenced to drive off, the applicant said "I will go down" to which Saad responded "Don't worry about it". The applicant replied "I'm getting out, wait here".
It was the Crown case that at about 3.50am, having arrived in the vicinity of the deceased's premises, the applicant got out of Saad's vehicle. Saad remained in the driver's seat. The applicant approached the deceased's premises and entered them. He was on his own, and forced entry through a rear door, breaking a lock and chain which were attached to it. He was in possession of a knife at the time.
It was not the Crown case that Saad had requested that the applicant kill the deceased, nor was it suggested by the Crown that the original request of Slotboom was couched in that way. The evidence as to the precise terms of the request varied somewhat. There were references in the evidence to a request that the deceased be "taught a lesson", that he be "bashed", that he be "scared" and that he be "hurt". Accordingly, there was a conflict in the evidence as to the precise terms of the request which was made. What is clear from the evidence is that the request was that the deceased be harmed in some serious and significant way.
Shortly after the applicant entered the deceased's premises, the deceased and his wife awoke, having heard a noise inside the house. Whilst the house was still in darkness, the applicant appeared at the door of the deceased's bedroom. He entered the bedroom and came to the side of the bed on which the deceased had been sleeping. The deceased's wife gave evidence that the attacker then began "beating" on the deceased's body and "bashing" him. The deceased's wife did not see the attacker use a knife. The attack upon the deceased was unprovoked, and the deceased was unarmed. The attacker did not ask for money, and nothing was taken from the premises.
The deceased's wife, who wore either contact lenses or glasses, did not have either on at the time of the incident. She saw a tall person with a big build and belly enter the bedroom and approach the deceased's side of the bed. She could only make out shapes and could not see small details. It was very dark and she was not sure, but thought that the intruder had a beard. She did not hear him speak. She gave evidence of only one intruder.
The deceased's wife fled from the bedroom into the street. In doing so, she suffered a laceration to her right wrist. This was the injury relied upon by the Crown for the count of malicious wounding of which the applicant was found guilty. Although the deceased's wife gave evidence about a fracture of the ankle as she fled from the house, that injury was not relied upon by the Crown in support of the count of malicious wounding.
It was the Crown case that following his attack upon the deceased, the applicant fled the premises and ran to Saad's vehicle. Saad had remained in the driver's seat. Saad and the applicant drove away from the area. Saad's vehicle was subsequently photographed by speed cameras in the vicinity, at a time which was generally consistent with the time at which the deceased was attacked. Exhibits M1 and M2 are photographs taken by the speed cameras at the time. Exhibit M1 - 3.54am Sunday, 24 June 2007, on Old Northern Road, Castle Hill. Exhibit M2 - 4.05am Sunday, 24 June 2007, on Pennant Hills Road, Oatlands. It is clear that there are two men in the vehicle and photograph M2 is consistent with Saad being the driver and the applicant being the passenger, although the quality of the photograph is not sufficient of itself to enable a precise identification to be made. Saad gave evidence that he was the driver and that the applicant was the passenger.
Police and ambulance officers were called to the scene. The police found the deceased lying on the floor of the bedroom. He was already dead. An examination of the premises revealed a large amount of blood spatter on the walls, from which it was evident that a violent struggle had taken place between the attacker and the deceased during the final moments of the deceased's life. The deceased sustained a fatal wound some 13 cms deep, inflicted by the penetration of a knife through his back, which severed his pulmonary artery. The deceased's death resulted from the combination of a loss of blood and an associated collapse of his lung.
The fatal wound was not the only wound suffered by the deceased in the course of the struggle. Dr Langlois, a forensic pathologist, reported a fracture of the deceased's fifth rib, although he was not able to determine precisely how that was caused except that it was the result of some blunt force. There were injuries described by Dr Langlois as "cutting injuries" (which he defined as an injury which was greater in length than depth, and which was caused by a cutting or slashing type action). There were injuries described as "stabbing injuries" (which Dr Langlois defined as an injury, the depth of which was greater than its length, and which was caused by a thrusting action). In addition there were grazes, bruising, abrasions and scratches upon the body of the deceased.
Saad gave evidence that before his attendance with the applicant at the deceased's premises in the early hours of 24 June 2007, he had gone there on three previous occasions. He said that on the first occasion he was on his own, and that on the third occasion he was "on his own probably". Saad said that on the second occasion, the applicant was with him, to enable the applicant to identify the premises. Saad said that on this occasion, they were seated in his vehicle which was parked near the deceased's premises, and that they left the area when another vehicle entered premises a short distance away.
Two neighbours of the deceased, (the Vespermans) who returned to their home in their vehicle at approximately 10.30 pm on 23 June 2007, each gave evidence of seeing a utility vehicle parked nearby. In the sentence proceedings, the trial judge made a finding that the vehicle which they observed was Saad's vehicle. His Honour noted that neither gave evidence of seeing two people in the vehicle at that time. On the basis of that evidence, his Honour concluded that the applicant was not in the car with Saad on that occasion, i.e. 10.30pm on 23 June 2007.
There was fingerprint evidence taken at the murder scene. The only identifiable prints were those of the deceased. A palm print of the left hand was found in the laundry and it included an actual fingerprint of the left index finger. Because of the force used, the print had been made through a glove, probably a nitro glove or some kind of plastic glove. There appeared to be blood on this print. Detective Dixon, the fingerprint expert, was not able to develop this print with sufficient detail to identify a particular person but he was able to exclude some persons. This was because the print of the left index finger showed a whorl pattern.
Neither Saad, Maatouk nor Mohammad Muhieddine (Muhieddine) had such a whorl pattern on their left index finger and could be excluded as the maker of the print. The applicant could not be excluded because he did have such a whorl pattern on his left index finger. However, 32 percent of the population have such a pattern on their left index fingers. It was the Crown case that because the print was found on the exit route from the bedroom through the house, believed to have been used by the attacker, it was the attacker who had left the print.
Muhieddine was a somewhat mysterious figure in the trial. He was of Lebanese background and before coming to Australia had served in the Special Forces of the Lebanese Army. He denied having anything to do with the murder of the deceased and denied knowing Saad. He said that on 24 April 2007 he had been held for ransom, stabbed 76 times and shot in the ankle so that he was not able to climb over the wall, which was at chest height, so as to get out of the deceased's house. He said that because he had a bullet lodged in his left ankle, he was still using crutches in order to ambulate at the time of the murder.
There was evidence from Michelle Franco, forensic biologist, who conducted various tests and inquiries as to the presence of DNA on various items. Ms Franco obtained a very weak DNA result from a piece of white latex retrieved at the site. She later identified Mohammad Muhieddine as one of at least three possible contributors from a DNA database. Ms Franco made it clear that this was done in an attempt to turn up an investigative lead for police but that the DNA would not satisfy the requirements for proper identification. Ms Franco reported: "The DNA profile was very weak and most alleles were below the reportable threshold. The reportable threshold is a standard used to show a reliable profile. Therefore any DNA types that are below the standard are not to be used for court purposes to include the person and should be treated with caution as they could be DNA artefacts. An interpretation was made taking into account the DNA profiles of the victim. A weak partial profile was then deduced and a database base search conducted. The link was then made to Mohammad Muhieddine. The information was provided to police to be used for investigative purposes only as the results were not reportable and were too unreliable to attach any defined statistical weight." (T.1436.26)
There was evidence from Maatouk that he retrieved a message on his mobile telephone which was received early on Sunday 24 June. That message came from Saad and used the words "Ricky did it" (that was a reference to the applicant). Maatouk deleted that message. At about lunchtime on that Sunday, Saad turned up in his blue utility at Maatouk's home and Maatouk confirmed that he had received his (i.e. Saad's) message. On the Monday Maatouk checked the internet and saw a report of a businessman having been murdered and he "freaked out" and then spoke to Wakim. Maatouk said that shortly after this, Saad put pressure on him for money from Wakim or Slotboom. Maatouk said that a couple of days later he received about $30,000 from Wakim which he handed to Saad at a KFC outlet. Maatouk said that subsequently more money was given to Saad and that Wakim had told him that in total about $50,000 was given to Saad.
The Crown's case against the applicant depended upon the evidence of Saad. He gave evidence under the protection of an indemnity from prosecution for his role in the murder. Maatouk and Wakim were not charged with any offences but gave evidence subject to certificates pursuant to s 128 of the Evidence Act 1995 (NSW).
The mobile phone records for the phones used by Saad (he had several in false names) and the applicant showed extensive SMS and voice contact during the period 2 June 2007 to 30 June 2007 (exhibit AW, pp 6-39). The applicant received a call of 2 minutes 30 seconds duration at 8.29pm on (Friday) 22 June 2007 initiated by Saad. On Saturday 23 June there were nine calls from Saad to the applicant, the last at 8.30pm. The following day - during the early hours of which the deceased was killed - contact commenced with a call from Saad to the applicant's phone at 12.05am. Using another phone, Saad called the applicant briefly at 6.11am and then spoke to the applicant for more than 4 minutes at 2.27pm that day. There were other calls during the afternoon and one of nearly 3 minutes at 10.51pm. There followed regular contact between Saad and the applicant up to the end of June 2007.
Saad's evidence was that initially he requested $50,000 from Maatouk to hurt the deceased. Saad said that Maatouk came back and said that Slotboom would pay about $30,000. In cross-examination Saad agreed that he got involved in the enterprise for the money and that this was the reason that the applicant became involved.
Saad gave evidence that he went to the deceased's home address for the first time by himself to have a look at the place to see what Maatouk was talking about. Saad said that on a visit, probably by himself during the day, he noticed a building site nearby. Two builders (Messrs Jurd and O'Rook) gave evidence that on Friday, 22 June 2007 while working near the deceased's home, they saw a blue utility parked nearby and that it had been hanging around for a couple of days. One of the builders said that on one occasion he saw the ute drive off after the driver noticed his attention.
Saad gave evidence that early on the morning of Sunday 24 June, the applicant got out of the ute and walked towards the deceased's house wearing "plastic clear" disposable gloves and possibly a bandana around his neck. Saad said he heard "a big bang … like something slamming" and later "I heard a woman's scream" and then the applicant ran back to the car and got in. Saad said that the applicant threw his jacket on the car floor, took his shoes and his gloves off and Saad saw some blood. When Saad asked what had happened, the applicant replied "I went into their room and came up to him, the guy. There was a scuffle and he tried to hit me or I hit him". Saad said that the applicant's account was jumbled, but it included "I hit him. He went to reach for something at the side then came, then I pulled him up, then I hit him, then I jabbed him". Saad said that the word used was either "jabbed" or "stabbed". Saad remembered seeing blood on the gloves which the applicant took off.
On 24 September 2007, Saad spoke to the applicant in a recorded telephone conversation (exhibit N2). In it Saad referred to the police investigation and to the police being interested in his car because the builders or the family who had seen it outside the deceased's home had contacted them. In that conversation, Saad told the applicant that he would not call him and when the applicant asked why, Saad said "think … think … think" to which the applicant replied "yeah … yeah … yeah". Saad said that it was "obvious I was just sending him a signal like we're about the cops and all that sort of thing".
Saad was vigorously cross-examined because he had originally denied telling lies to the police during the investigation and when giving evidence on oath before the Crime Commission when in fact he had done both. Cross-examination made it clear that he had lied to the police and to the NSW Crime Commission.
The applicant neither gave nor called evidence. His case was that he was not involved and received no money. He never entered the deceased's bedroom nor stabbed the deceased. Either Saad was the killer or another man with whom he drove to the premises of the deceased, possibly Maatouk or Muhieddine. The applicant relied on the state of the evidence against him at the close of the Crown case. The applicant submitted that Saad was central to any conviction of him and that he was not a reliable witness. He submitted that neither Maatouk nor Wakim were reliable witnesses.
There was an issue in the sentence proceedings as to whether the applicant had committed the murder for reward. In order to decide that issue, his Honour reviewed the evidence on the topic. His Honour noted the evidence from Saad about the negotiations with Maatouk as to how much should be paid, i.e. $50,000 or $30,000. His Honour noted that in his statements to police and his evidence at committal, Saad had made no reference to a figure of $50,000 and that this figure was mentioned for the first time in his evidence in chief at the trial.
His Honour took into account the evidence of Saad that following the deceased's murder, he spoke to Maatouk and received a paper bag from Maatouk containing about $15,000 which he gave to the applicant and which was the applicant's share. His Honour noted that the evidence given by Maatouk was that he had handed Saad an amount of $30,000 but that under cross-examination, Maatouk said initially that he did not know and then that he was not sure and that the amount could have been closer to $15,000. Wakim gave evidence that he had given $40,000 to Maatouk.
His Honour found the evidence of Saad on this issue to be unsatisfactory and he was not prepared to find beyond reasonable doubt that the applicant had committed the murder for monetary reward. THE APPEAL Ground 1 - The verdict of the jury should be set aside on the ground that it cannot be supported having regard to the whole of the evidence (s 6(1)Criminal Appeal Act 1912)
The applicant submitted that this Court in making its own independent assessment of the evidence would conclude that it was dangerous to allow the murder verdict to stand and that therefore a verdict of not guilty should be entered. The basis for this submission was that the evidence of Saad upon which the Crown case depended was so unreliable that it should not have been accepted by the jury.
The applicant submitted that the advantage which the jury enjoyed in assessing the demeanour of Saad when he gave his evidence was substantially outweighed by the successful attack on his credit such that the jury's advantage should be given little weight in the overall assessment of the reliability of his evidence. The applicant identified various aspects of Saad's evidence which established that proposition.
The matters to which the applicant referred were as follows: 1. Saad was an indemnified witness, who had a clear motive to lie, and implicate him. In return for his evidence, the Crown case against him was discontinued and he suffered no further penalty. Saad, on his own admission, was principally involved in the murder in that he negotiated its commission for reward, telephoned the deceased to establish his identity, was in the vicinity of the deceased's home on three occasions before the murder to acquaint himself with the address, drove to the premises at the time of the murder and supplied the clothing and gloves worn by the killer. Following the killing, he drove from the premises to his home and burned the clothing and gloves in a nearby park. He then arranged to have his vehicle steam cleaned following the murder to remove blood. 2. Saad was cross-examined at length at trial and exposed as a witness who had little regard for the truth, little regard for the oath and little regard for the solemnity and importance of judicial and quasi-judicial proceedings. 3. There were significant discrepancies between Saad's evidence as to the amount of money which he was paid and which he said that he paid to the applicant and the evidence of Matouk and Wakim on that subject. On this issue, the applicant relied upon the findings of the trial judge in his sentence judgment that Saad's evidence on this issue was "most unsatisfactory". 4. The applicant submitted that Saad's evidence as to what he was doing at the time of the murder conflicted with the evidence of the Vespermans. At 10.30pm on 23 June, they observed his utility near the deceased's house with only one person sitting in it. The applicant submitted that the Vespermans' evidence conflicted with that of Saad in two respects, i.e. as to the time that his vehicle was outside the deceased's house and as to the presence of the applicant in it. The applicant noted that Saad's evidence was that at 10.30pm he and the applicant were at Star City and that the applicant had been with him the whole of the time. 5. The applicant relied upon certain call charge records (exhibit Y) which contradicted the evidence of Saad that he was in the company of the applicant from 8 or 9pm on 23 June until shortly after 4am on 24 June. The applicant relied upon a call which was made at 12.05am on 24 June from a phone known to be used by Saad to a phone known to be used by him (the applicant), which indicated that the applicant was in the Fairfield area at the time. The applicant submitted that this was inconsistent with Saad's evidence that the applicant was with him in his utility at the time because if the records were accepted as accurate, it would mean that Saad was telephoning a person who was a passenger in his motor vehicle. The applicant submitted that there was no plausible explanation from Saad as to why he (the applicant) would have been in Fairfield when on Saad's evidence, they would have been in the city or at Parramatta. 6. The applicant submitted that the circumstantial evidence relied upon by the Crown was forensically weak and lacked probative force. The evidence identified by the applicant in this category was: 1. The very general description of the attacker given by the deceased's wife. 2. The photographs, exhibit M1 and M2. 3. The palm and fingerprint near the laundry door. 1. The applicant identified other deficiencies which he said existed in the Crown case as follows: 1. The failure by the Crown in its final address to advance any submission as to motive and the rejection by his Honour in his sentence judgment of the proposition that the applicant engaged in the killing for financial reward. 2. The evidence from the DNA expert, Ms Franco, in relation to the item of plastic found in close proximity to the deceased's premises which contained a mixture of DNA from the deceased and Muhieddine. This gave rise to a reasonable possibility that the "other person" with Saad was Muhieddine. 3. The description of the attacker by the deceased's wife was of little weight and her evidence did not exclude the reasonable possibility that two people may have been within the premises at the time of the murder. 4. The evidence of the fingerprint expert, excluding Saad, Matouk and Muhieddine as contributing to the fingerprint near the laundry door did not exclude the presence of either one or more of these persons at the scene and was of very poor quality and had been distorted by the fact that whoever left it was wearing gloves. It was clearly unreliable. 5. The evidence of Wakim and Maatouk did not support Saad's evidence. Wakim made no reference to Saad in his evidence and accordingly did not implicate the applicant. 6. The unreliability of Saad's evidence alone was so substantial that there was a reasonable doubt as to the applicant's guilt.
In oral submissions the applicant submitted that the request by the jury on 20 March 2012 for a data projector was probably for the purpose of further investigating exhibit M2 so as to determine whether or not the applicant could be identified as the passenger in the vehicle. The applicant submitted that not only were the jury not entitled to engage in such an investigation, but if they had it would explain the conviction verdict.
In summary, the applicant submitted that this Court would find that the nature and quality of the evidence of Saad was so deficient that any advantage the jury may have had in viewing and assessing the evidence was clearly outweighed by the obvious problems in convicting on the basis of such evidence. Consideration
On this ground the question for the Court is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder. This is a question of fact. In considering this ground, the Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v The Queen [1994] HCA 63; 181 CLR 487 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said: "7 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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 but in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. …"
This test has been restated to reflect of terms of s 6(1) of the Criminal Appeal Act 1912 (NSW) in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [58]. McHugh, Kirby and Gummow JJ said that the reference to "unsafe or unsatisfactory" in M v The Queen is to be taken as "equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported having regard to the evidence"". These principles were more recently re-affirmed by the majority of the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400.
While this ground of appeal requires the Court to consider for itself the sufficiency of all the evidence led at trial, the burden of persuading the Court that the jury verdict is wrong lies on the applicant: MacKenzie v R [1996] HCA 35; 190 CLR 348 at [370].
The Crown relied upon the following background considerations. The attack and killing of the deceased were not accidental in the sense that the deceased was clearly targeted. The attacker went directly to the deceased. There was no attempt to attack the deceased's wife. Most significantly, there was no attempt to steal anything from the deceased's premises. Consistent with that scenario was the fact that the attacker did not speak. That background scenario is consistent with Saad's evidence.
The basis for this ground of appeal is the unreliability of Saad as a witness and the deficiencies in his evidence. No complaint was made concerning the directions in relation to Saad made by the trial judge.
This is an important consideration because the judge's directions were given in strong terms and were comprehensive. The following examples from the summing up, which were specifically directed to Saad's evidence are instructive: "But if you conclude that in some part or parts of a witness' evidence that witness was not doing his or her best to tell you the truth, you will have to determine to what extent at all that conclusion should affect your assessment of other parts of the witness' evidence. That is the first consideration, honesty. The second consideration is reliability." (SU 13) His Honour made some suggestions to the jury as to how they might best assess witnesses and evidence (SU 14.5): "Another aspect of assessing witnesses, which seems to have, on the evidence that you have before you, some relevance in this case, might arise in circumstances where a witness has given an account on more than one occasion about what the witness says happened or occurred. For example, each of Mr Saad, Mr Maatouk and Mr Wakim all made statements to the police some time back. All of them, as you heard, gave evidence at a preliminary hearing before a magistrate. In Mr Saad's case you heard that he also gave evidence before the Crime Commission. You will recall that each of those three persons were cross-examined by counsel for each of the accused about various aspects of what they had said on previous occasions. On some occasions, it was put to them that there were inconsistencies between what they had said on one or more occasions and what they had said to you when they gave evidence. I'm going to be reminding you of some of that evidence later in my summing up and it will be a matter entirely for you in the course of your deliberations as to how you assess it. But if you were to conclude that a witness had given evidence on one occasion about a matter which was inconsistent with what the witness had given on another occasion, then if you thought fit you could take that into account in assessing the witness' credibility about those matters in particular but also in assessing that witness' credibility generally." (SU 15.2) "So in assessing the general credibility of witnesses, you are entitled to take into account the fact that if you see fit the witness may have omitted at one point to make any reference to a particular matter but then made reference to it at some subsequent stage." (SU 16.6) "In a criminal trial where proof of an offence charged is required to be established beyond reasonable doubt you should not draw any inference against the accused from the direct evidence unless it is the only rational inference that you are able to draw in the circumstances." (SU 17.7) "The second direction I wish to give you is a particular direction which relates to the Crown witnesses Mr Saad, Mr Maatouk and Mr Wakim. It will not have escaped your attention obviously that in the present case the Crown relies on the evidence of those three persons to prove its case against each of the accused. In the case of Mr Saad there is evidence that he was at one point in fact charged with the murder of the deceased but that charge was withdrawn and in fact he was later indemnified. In the case of each of Mr Maatouk and Mr Wakim, on the evidence that they gave before you they themselves were involved in the events surrounding the murder of the deceased, even though neither of them was charged with any offence. In short all of those persons, Mr Saad, Mr Maatouk and Mr Wakim, are persons who might reasonably have been supposed to have been criminally concerned in the events giving rise to the proceedings which are currently before this court. The law requires me to give you certain warnings and directions …" (SU 23.1) "My purpose in giving you this direction is simply to warn you that evidence of witnesses in the particular category into which each of these three persons fall may be unreliable and for that reason alone you must approach that evidence with considerable caution. There may be many reasons why the evidence of a person in that position may be unreliable. Those reasons, for example, could include the following: it is only natural you might think that a witness who himself is criminally concerned in the events giving rise to proceedings might want to shift the blame from himself to others. In the process that witness may construct untruthful stories which tend to play down his part in the crime but which tend at the same time to play up the part of others in the crime, even going so far as to blame quite innocent people." (SU 24.4) "Another reason might be that a person in that position could be motivated to give false evidence in order to obtain some benefit for himself. In the present case the evidence before you, it is a matter for you, you might think it tends to establish that Mr Saad was initially arrested that he was charged with the murder and was initially detained in custody and was refused bail. You heard evidence that as events proceeded, the charge against him was withdrawn. As I said before he was released from custody and he was given an indemnity. Those you might think, it is a matter for you, but you might conclude that all of those things were benefits which flowed to him in some form or another." (SU 24.9) "The experience of the courts has also shown that once a witness who himself has been criminally concerned in the relevant events has given an account to the police, he or she might feel locked into that account even if it contains inaccuracies or is substantially untrue." (SU 25.5) "The direction that I am about to give you is a direction which relates specifically to Mr Saad. It does not relate to Mr Wakim or Mr Maatouk. It relates specifically to Mr Saad and no other witness. The direction I am about to give you arises in this case because of the fact that the Crown seeks to establish the guilt of the accused based largely on the evidence of Mr Saad. In those circumstances it is important that a jury is told to exercise caution and that is what I am going to tell you now. You must exercise caution before you can convict either of the accused because the Crown case depends largely upon you accepting the reliability of the evidence of a single witness, namely, Mr Saad. This being so, unless you are satisfied beyond reasonable doubt that Mr Saad is both an honest and accurate witness in the account that he has given you cannot find either of the accused guilty. Before you can convict either of the accused you must examine Mr Saad's evidence very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard which is required in a criminal trial." (SU 26.4)
In the course of reviewing the evidence of Mr Saad, his Honour identified matters which he invited the jury to consider carefully. "He also told you that in the six weeks or so prior to 24 June he had been using three, or may be even more than three mobile phones, all of which were operated in a name other than his own. He was cross-examined firstly by Mr Heliotis. He initially denied the proposition that Mr Heliotis put to him that on those occasions when it suited him to lie, the truth had no meaning for him. But his attention was then directed to some evidence that he had given before the NSW Crime Commission in circumstances where he was sworn. Mr Heliotis asked him whether or not he told any lies on oath when he was giving evidence before the Crime Commission and his initial answer was no. Later in his cross-examination he did concede that a number of untruths had been told by him when he was on oath before the Crime Commission. He also agreed with Mr Heliotis that when he took the oath when giving evidence before the Crime Commission, he intended quite fully to deny matters that he knew were true and that he intended to do that in an effort to get himself out of trouble. … In the light of the evidence that he has given before you, he said what he told the Crime Commission was a lie. He also agreed with Mr Heliotis that when he was before the Crime Commission he denied, on oath, knowing the accused, Fadi Shamoun. He also agreed that that was a lie." (SU 85 - 86) "He asked his lawyer to negotiate with the Crime Commission, but in doing so there were a number of conditions which were attached to the provision of his assistance. The first condition was that any statement that he made had to be induced so it could not be used against him. The second is that he required an indemnity in respect of the charge of murder of the deceased which had been laid against him and that the police would apply for it. In exchange for an induced statement and for an indemnity, he agreed to make a statement against the accused Mr Shamoun …" (SU 88.6) "Mr Stratton then asked the witness [Saad], by reference to that evidence, about a number of matters, which arise out of the evidence of the call charge records that you have. Mr Stratton addressed at some length in relation to that evidence yesterday. After Mr Stratton had concluded his cross-examination Mr Saad was then re-examined by the Crown about his movements on the evening. He was asked whether or not on the occasions that were drawn to his attention and in particular at the Beirut by Night Nightclub and the Casino he was in the company of the accused at all times during those periods. I think he said there may have been times at those locations when the accused, Shamoun, was off talking to someone else and, therefore, was not in the immediate vicinity …." (SU 93 - 94)
On the basis of the summing up, I have concluded that the jury could have been in no doubt as to how careful they had to be when assessing the evidence of Saad. His Honour made this clear, not only by reference to the warnings as to reliability which he was required to give as a matter of law, but also by reviewing the evidence of Saad and the attacks which had been made on it by defence counsel. There was no indication that the jury did not understand, or that it failed to have due regard to, the warnings given by the trial judge. In these circumstances the fact that the jury appears to have accepted much of Saad's evidence in the case against the applicant, despite those warnings, has to be given considerable weight.
In view of the submission about the data projector made by the applicant in the appeal, the following exchange between his Honour and the jury foreperson should be noted. "HIS HONOUR: Good morning members of the jury, I have your note which reads, "Can we please have a data projector to use". Madam Foreperson, could I just ask you this, do you mean by a data projector what people sometimes call an overhead projector whereby you can place items on a projector and transpose the image to a screen or a wall? FOREPERSON: You have given us a laptop to use, which we are, and we would appreciate the data projector so that what we're working on - HIS HONOUR: Let me interrupt you. I don't wish you to disclose in any way the nature of your deliberations. FOREPERSON: We are just working on something that we would like everybody to see and the butcher's paper is a little difficult. We just thought a data projector would be easier for all of us to use. HIS HONOUR: Is the data projector something - excuse my ignorance - that you want to connect to a laptop? FOREPERSON: Yes. HIS HONOUR: There are nods from the Bar table so somebody clearly understands that." (SU 163 - 164)
It follows from that exchange, that the submission that the jury misused the photograph M2 when it called for a data projector is based entirely on speculation. Moreover the above exchange between his Honour and the foreperson made it clear that the data projector was being requested for a different purpose. That submission which in fairness to the applicant did not form a major part of his appeal, should not be accepted.
It is also obvious from the summing up, and from the cross-examination by defence counsel, that not only were the jury well aware of the need to carefully assess the evidence of Saad, they were also well aware that he had as a matter of fact initially lied to the police, made a false statement to the police and told lies to the NSW Crime Commission while giving evidence under oath. In those circumstances, it was open to the jury to reason (as was submitted by defence counsel) that a person, such as Saad, who was prepared to tell lies in such circumstances, was likely to tell lies in the trial if he perceived that the telling of such lies would be of benefit to him. It was, however, equally open to the jury to make their own assessment of Saad and to reason that having been given an indemnity, there was much less motivation for him to tell lies. It, of course, goes without saying that in making their assessment of the reliability of Saad's evidence, the jury were in a far superior position than is this Court.
An assumption implicit in the applicant's submissions directed to the "unreliability" of Saad's evidence is that his credit had been substantially destroyed by the extensive cross-examination to which he was subjected during the trial. That is not necessarily so. Except in respect of the telephone call apparently made by him at 12.05 on 24 June and the Vespermans' evidence, there was no real basis for the conclusion that the attack on his credit had destroyed or substantially damaged the credibility of the evidence which he gave at trial. Whereas Saad freely conceded that he had told lies to the police and to the Crime Commission, he did not accept and vehemently denied that he had told lies during the trial. When the particular attacks made on his credibility during the trial are examined, it is not at all clear that his credibility was damaged to the extent submitted by the applicant. This can be seen when the particular issues raised by the applicant are considered.
As already indicated, the terms and potential effect of Saad's indemnity were fully before the jury. The indemnity was tendered by the Crown and cross-examination on the issue of the indemnity and the incentive to lie that it may have engendered, was extensive and detailed. However, Saad's motivation to lie to the police and Crime Commission should be borne in mind, i.e. he was trying to avoid liability for his involvement in the murder. The indemnity offered protection to Saad so as to enable him to tell the truth about his involvement in the murder and that of the applicant. As can be seen from the summing up, the directions in accordance with s 165 of the Evidence Act 1995 and R v Murray (1987) 11 NSWLR 12 were comprehensive and forceful. Notwithstanding those warnings, there was support for Saad in other pieces of the evidence at trial.
The evidence of the Vespermans was relied upon by the applicant as constituting a clear instance of Saad not telling the truth at trial. When that evidence is looked at more closely, such a conclusion does not necessarily follow.
Mrs Vesperman agreed that between 10 and 10.30pm on Saturday 23 June 2007 she saw a darkish blue Holden Commodore late model utility with tinted windows. Its headlights were off and it was dark inside the car. Her evidence was: "Q. Even though it was dark, could you see someone sitting in the front passenger seat? A. Yes. Q. Did you look to see if there was anyone in the driver's seat? A. I did see someone in the driver's seat, but not in the passenger seat." (T.168.42) There was clearly some confusion in those answers. Mrs Vesperman was taken to the statement which she had made on 6 July 2007. The evidence then proceeded: "Q. I just show you a copy of your statement from paragraph 6 … So would you accept as perhaps a tad more reliable what you said in July in your statement? A. Yes. Q. So your evidence is, "I saw someone sitting in the front passenger seat, I didn't know if there was someone in the driver's seat"? A. Correct." She accepted that she had taken only a "quick glance" at the passenger in the car.
The evidence given by Mr Vesperman was: "Q. Did you notice someone sitting in the front passenger seat of the [car]? A. I did. Q. Could you say whether it was a male or female? A. No I couldn't, it was just a figure. Q. Did you look to see if anybody was in the driver's seat? A. I didn't specifically look but I didn't notice anyone in the driver's seat. Q. It was dark in that street was it? A. It was partially dark but it was light enough to identify the car and location. Q. You turned right into your driveway? A. That is right. Q. You had never seen that ute parked there before? A. No I hadn't." (T.171.33)
Given the prevailing conditions, the tinted windows of the car and the brief nature of the observation, there may well have been two persons in the utility when it was observed by the Vespermans. It would be very odd for someone to be sitting in the passenger seat if that person were the driver of the car. There is a reasonable inference that if someone were sitting in the passenger seat and the driver was not in the driver's seat that the driver was nearby. There is also the evidence of Saad that when he was conducting surveillance on the deceased's home before the attack, there was an occasion at night when he was in company with the applicant when they left because "a car pulled into the driveway behind us, a family" (T.305.26). Apart from the date, that evidence is largely consistent with what the Vespermans described.
Given that this incident occurred in June 2007, and Saad was giving evidence in February 2012, it may be that he was mistaken as to the date on which he saw this car pull into the driveway. It is, of course, less likely that the Vespermans were mistaken as to the date, given their likely awareness of the date on which their neighbour, the deceased, was killed. In any event, when the evidence of the Vespermans is properly evaluated, it does not have the effect of establishing that Saad was lying when he described the events of the night of 23 May and the early morning of 24 May 2007. If Saad was lying about seeing the Vespermans on an earlier occasion, it is difficult to understand what he had to gain by doing so. There is a reasonable inference that he was mistaken in that evidence.
The applicant submitted that the Crown case did not demonstrate a motive on his part. The applicant relied upon the sentencing judge's reluctance to make a finding as to motive to the criminal standard in the sentence judgment.
The question of the weight to be given to an expression of opinion by a trial judge was considered by Crennan J (with whom French CJ, Gummow and Kiefel JJ agreed) in SKA. There her Honour said: "112 First, whilst a trial judge's report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge's report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned. The functions of such a report, when there is in existence an adequate system for reporting of court proceedings, have been summarised helpfully in R v Sloane: "An important function of a report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded. Another permissible and relevant function of such a report is its use, by a trial judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record. A third permissible reason for such a report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it. Otherwise, in times where there is in existence an adequate system for court reporting, occasion for the provision of a s 11 report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance.""
When applying those principles to what had happened in SKA Crennan J said: "114 It was also noted that, in his Honour's remarks on sentence, the trial judge had illustrated why the jury should have doubted the veracity of the complainant. First, the trial judge found that the complainant's evidence that the applicant never spoke during the assaults (which were said to have occurred when others were asleep in the room) departed from his past experience in relation to analogous sexual offences. Secondly, the trial judge considered that the applicant's account of his activities on 23 December 2006 contradicted the complainant's account. Thirdly, the trial judge referred to the lack of corroboration of the complainant. Finally, the trial judge doubted the complainant's account of the uncharged incident in 2001 when she was only four years of age. Simpson J observed that the trial judge's remarks reflected his view of the complainant's veracity, which differed from the view taken by the jury. Her Honour also rightly deprecated the trial judge's expression of the view that the jury verdicts were unsafe, for the reason that this raised false hope and complicated the task of the Court of Criminal Appeal in relation to re-sentencing. 115 The concerns, underpinning the trial judge's opinion, expressed in his judgment granting bail, did not depend on any advantage from seeing and hearing the witnesses because, as already mentioned, the trial judge found the applicant to be an honest witness and found the complainant to be a compelling witness. The trial judge's opinion was based on his assessment of the evidence, the very task which it was for the Court of Criminal Appeal to undertake independently for itself. In these circumstances there was no error in relation to the way in which Simpson J dealt with the trial judge's opinion."
A similar, but not identical, situation was considered by this Court in Mansaray v R [2015] NSWCCA 40. The circumstances, considered in SKA, are closer to the point raised by the applicant in this matter than those considered in Mansaray. In SKA reliance was placed by the applicant on what the trial judge said in his remarks on sentence and in his judgment granting bail. Despite the detailed analysis by the trial judge of the complainant's veracity, the High Court approved the approach of Simpson J in this Court. Their Honours reiterated the obligation which this Court has, pursuant to s 6(1) of the Criminal Appeal Act, to independently assess for itself the evidence relevant to the particular topic under consideration.
Applying those principles to what the sentencing judge said concerning motive in this case, requires this Court to independently assess for itself the evidence relating to motive and reach its own conclusion.
There was a considerable body of evidence, primarily from Saad but also from Maatouk, concerning the receipt of money by both Saad and the applicant for the killing of the deceased. Saad's evidence was that upon receiving the first payment from Maatouk a few days after the murder, he immediately delivered part of that payment to the applicant. The evidence was: "Q. Can you say how much money, or roughly how much money? A. About 15 grand. Q. How was that, what, just open for all the world to see or what? A. No, he had it in a paper bag, like a browny, mustardy coloured paper bag and like the wine bottle ones, the long thin ones, and that was placed in a present bag. … Q. What did you understand that money - was that your share? A. That was for, that was half the money. That was for Ricky. Q. That was for Ricky? A. Yeah. Q. Who said that was Ricky's? A. Well, Andrew discussed that "give Ricky his money straight away". Q. So did you give it to Ricky? A. Yes. Q. When did you give it to him? A. I think that afternoon. Q. Where did you give it to him? A. In Parramatta. Q. Whereabouts? A. Job site." (T.325.1)
Saad said that he delivered the money to the applicant at his work place, which was a building site in Parramatta. The applicant's manager at the time remembered Saad speaking to the applicant one afternoon after work but he placed the date of that meeting as early in 2007. He did not remember seeing Saad on any other occasion.
As his Honour pointed out, there were some inconsistencies in the evidence of Saad, both as to the amount of money which he had received and as to the dates on which he received it. There was also some conflict between the evidence of Maatouk and that of Saad in that Maatouk said that he handed Saad an amount of $30,000 at Milperra, not in a paper bag but in a cardboard cylinder. Maatouk then resiled somewhat and said that the amount which he handed over might have been closer to $15,000. Wakim's evidence was that he had given $40,000 to Maatouk.
There are a number of reasons why Saad, Maatouk and Wakim would be reluctant to provide full and complete details of the moneys which they received and paid even after Saad received his indemnity. While there are undoubtedly inconsistencies and contradictions in their evidence concerning the amounts of money which were either received or paid, the evidence of the three of them is consistent in identifying the payment of money as a significant motivation for the killing of the deceased.
On my reading of the evidence, I am satisfied that the motivation for the death of the deceased was money, although the evidence is such that the precise amounts going to Saad and the applicant cannot be ascertained. In that regard, I differ from the conclusion arrived at by the trial judge in his sentence judgment.
The applicant's submission at trial and in the appeal that there was a reasonable possibility that the killer was Muhieddine depends entirely upon the testing of the tip of a plastic glove found at the scene. I have concluded that the evidence does not support that proposition. A proper reading of the evidence of Ms Franco makes that clear.
Her testing showed that the main contributor had a DNA profile the same as the deceased. She also obtained a trace amount of low level DNA from someone else. The poor quality and small quantity of the DNA recovered meant that she could not establish the minor contributor to any reliable standard. Ms Franco attempted to identify possible contributors to provide the police with some investigative lead which they could follow. Ms Franco identified Muhieddine as a possible contributor (about 1 in 50,000) but made it clear that this was not a result that could be used for identification purposes.
That is the high point of the evidence, which is said to support the "reasonable possibility" of Muhieddine being involved.
Not only is that evidence not sufficient of itself to identify as a reasonable possibility that Muhieddine was the killer, there was positive evidence to the contrary. Muhieddine gave evidence which not only denied his involvement, but in late April 2007 he had suffered injuries which required an ankle reconstruction after which he was on crutches for a number of months. The importance of this evidence was that the killer scaled a 1.5 metre brick wall when leaving the deceased's premises. In addition to that evidence, there was the partial fingerprint which effectively excluded Muhieddine as the person who made the bloodied handprint.
It is accepted that the evidence of the deceased's wife is not sufficient to identify the applicant as the attacker. However, her description of a tall man of large build with a belly is consistent with the applicant's appearance in May 2007. So also is her belief that he may have had a beard or a "shadow". Exhibit A was a photograph of the applicant dated 2 September 2007 which showed him to be overweight. It was Saad's evidence (which was not contradicted) that the applicant regularly wore a growth or beard.
While it is true that the evidence of the deceased's wife does not exclude the possibility that two persons may have been within the premises at the time of the killing, there was no evidence to that effect. In the absence of any evidence suggesting the presence of a second person, such a proposition cannot be regarded as a "reasonable possibility".
The applicant relied upon the call charge records which showed that a call was made from Saad's phone to the applicant's phone at 12.05am on 24 May. The records suggest that at the time of that call, the applicant's phone was in the Fairfield area. There was no doubt that an available inference from those records is that the applicant was in the Fairfield area and Saad was elsewhere, otherwise there would have been no need for Saad to telephone him. That is relied upon by the applicant as a direct challenge to the veracity and reliability of Saad's evidence that he and the applicant were together from about 8-9pm until shortly after the murder.
When this proposition was put to Saad in cross-examination, he had no recollection of having made such a call. That of itself is not surprising, given the amount of time which had passed. He denied that at that time he and the applicant were separated requiring the need for a phone call. The alternatives are that Saad was not telling the truth, Saad was mistaken in that evidence or that although the applicant's phone was in the Fairfield area, he was not. There is also the proposition put to the jury at trial that even if the applicant and Saad were separated at midnight, it does not necessarily follow that Saad's evidence about what happened 3-4 hours later should be rejected. Accordingly this was not evidence which unequivocally showed that Saad had not told the truth at trial.
There was other evidence which provided support for Saad. Despite the fact that the partial fingerprint was made through a plastic glove, and was not of sufficiently high quality to enable positive identification, it was sufficient to exclude Saad, Maatouk and Muhieddine as persons who may have made that bloodied handprint on the laundry wall. It did not exclude 32 percent of the population of which the applicant was one.
Both Maatouk and Wakim confirmed that before the murder Saad had met with Slotboom at the car yard to talk about a problem that Slotboom had with someone who had "ripped him off".
Saad's evidence that he reconnoitred the deceased's home in the week leading up to the killing and that he thought that he had been seen by some builders was supported by the evidence of the builders, Jurd and O'Rook, who observed the blue utility parked near the deceased's house on two occasions in the week before the murder.
Maatouk gave evidence that on the morning of the murder, Saad had left a message on his phone saying "Ricky [the applicant] did it" (T.569.14). Although the message was deleted by Maatouk, call charge records indicated that a text was sent from Saad to Maatouk at 6.15am on 24 June 2007. This was important corroboration of Saad's evidence shortly after the murder before the police had contacted him.
Exhibit N2 is a transcript of a recorded call between Saad and the applicant of 24 September 2007. In that conversation, the following was said: "SAAD: Why? Is something wrong? APPLICANT: Nuh … nuh … nuh, there is nothing, there's nothing. SAAD: Cuz, eh … [I'm not going to call you. APPLICANT: Why? SAAD: Because (pause) think … think … think. APPLICANT: Uh [yeah] Yeah … yeah … yeah. SAAD: All right? APPLICANT: Yeah okay. SAAD: (Unintelligible) but I will talk to you later you know? APPLICANT: All right … okay … okay (Unintelligible). SAAD: (Unintelligible) they went and called the police and so on (unintelligible) about my car. APPLICANT: (Unintelligible) …"
In evidence Saad confirmed that he was referring to the Vespermans, who described his car at the scene on the evening before the murder. The significance of this evidence is obvious - Saad was discussing the Vespermans' evidence with the applicant, who appeared to understand what he was talking about. Later in the telephone conversation, Saad told the applicant that the police wished to speak with his girlfriend to which the applicant responded "Why, what do they want from her?". It seems clear that the applicant was well aware of what Saad was talking about in that conversation.
The call charge records for 18 July 2007 are important. After the police spoke to Saad for the first time at 1.30pm, the first person he called when the police left was the applicant (exhibit AW, p 41). Saad called the applicant a further fourteen times later that day (exhibit AW, pp 41-46).
Exhibits M1 and M2 (the speed camera photographs) establish that there were two people in Saad's car travelling at speed on the Great Northern Road Castle Hill at 3.54am and 4.05am on Pennant Hills Road Oatlands immediately after the murder. The person in the passenger seat, although not identifiable from the photographs, is clearly a man of large stature whose appearance is consistent with that of the applicant.
The Crown case depended upon the jury's acceptance of Saad. His credit was very much at issue and defence counsel at trial spent many days cross-examining him in order to discredit him. The jury were repeatedly warned of his potential unreliability and the summing up identified in detail the applicant's criticisms of his evidence. There were, as the applicant has identified, inconsistencies in Saad's evidence and in that regard the evidence of the Vespermans and the phone call of 12.05am were emphasised. Even so, it is not sufficient for the applicant to merely submit that as an acknowledged liar and perjurer, Saad's evidence should not be accepted.
No Crown case is ever perfect and there are often unanswered questions. An important factor here is the amount of time which had elapsed between the murder and the trial. That of itself provides a reasonable explanation for why, not only in relation to Saad's evidence but that of other witnesses, there were inconsistencies and differences between the evidence at trial and statements made many years earlier.
Most particularly, however, this was a case where the jury had a very significant advantage over this Court in assessing the credibility of Saad. This case provides a good example of the qualification expressed by the plurality in M that when considering a ground asserting the unreasonableness of a verdict, the Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses". (M at [7] and SKA at [15]). In this case, the assessment of the credibility and reliability of the evidence of Saad was quintessentially one for the jury to determine.
In my independent assessment of the whole of the evidence, and in particular having regard to the position of advantage of the jury, I am satisfied that it was open to the jury to find the applicant guilty beyond reasonable doubt. This ground of appeal has not been made out. Ground 2 - The reference in the summing up to circumstantial evidence "not necessarily being less reliable than direct evidence" gave the subject evidence undue and disproportionate weight.
The basis for this ground is to be found at SU 41 - 42 where his Honour said: "The Crown also relies upon the two photographs taken by the speed camera of Mr Saad's vehicle in the vicinity of Castle Hill in a short period of time after it is said that the murder of the deceased took place. The Crown asks you to draw certain inferences from those particular parts of the evidence and asks you, as I understand it, to take that evidence into account in combination with the evidence of Mr Saad and the evidence of Mr Phuong Carruthers in support of the proposition that it was the accused Fadi Shamoun, who did the act of stabbing. In deciding whether or not the only reasonable inference that you can draw from a piece of circumstantial evidence is an inference consistent with the fact that it was the accused Shamoun who did the act of stabbing the deceased you must as I have said to you not take it into account in isolation but take it into account in accordance with or along with all of the evidence upon which the Crown relies. I can say to you that circumstantial evidence is not necessarily any less reliable than direct evidence. Indeed in some cases an accumulation of circumstances given by a number of witnesses can be more persuasive than direct evidence, but as I have said in the present case the Crown relies partly on the evidence of Mr Saad, partly on the evidence of Phuong Carruthers and partly upon inferences to be drawn from circumstantial evidence to satisfy you beyond reasonable doubt that it was Fadi Shamoun who did the act of stabbing the deceased, Richard Carruthers."
The applicant submitted that on the facts of this case, the direction was misleading. The applicant submitted that the three pieces of circumstantial evidence relied upon by the prosecution were: 1. The palm print found near the laundry door, the subject of the evidence of Detective Dixon. 2. The exhibits M1 and M2. 3. The evidence of the deceased's wife.
The applicant submitted that each of those pieces of evidence was of little probative force, both singularly and collectively, and as a result unworthy of the direction given by the trial judge.
The applicant submitted that the palm print referred to a "whorl" on the left index finger which was found in 32 percent of the Australian population and was of itself insufficient to positively identify the applicant as the person who left the print on the laundry door. He submitted that the evidence of the speed cameras, exhibits M1 and M2, went no further than to depict two people in Saad's motor vehicle. He submitted that the evidence of the deceased's wife was of a very general nature and not capable of identifying the attacker. Consideration
Of itself there was nothing in his Honour's direction which was contrary to principle or which was misleading by reference to the facts of this case. It is well established that a circumstantial case should not be considered piecemeal. In R v Hillier [2007] HCA 13; 228 CLR 618 Gummow, Hayne and Crennan JJ said: "48 Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]: "At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen. Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together: per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.""
From the Crown's point of view the three pieces of evidence gained their probative force from being considered in the context of the evidence as a whole. Significantly, each piece of evidence is extrinsic to the evidence of Saad and supported the conclusion that the person who killed the deceased was the applicant. Once the three pieces of evidence were admitted (and there was no challenge to their admissibility at trial nor is there in this Court) it was necessary for his Honour to instruct the jury as to the correct approach they should take to that evidence. The direction given was in conventional and correct terms and was wholly unremarkable. Significantly, no complaint was made at trial and no re-direction was sought. Inferentially, defence counsel for the applicant did not consider that any prejudice had been caused to the applicant by the direction.
This ground of appeal has not been made out. Ground 3 - His Honour erred in failing to give appropriate directions as to how the evidence of the applicant's co-accused and witnesses called in support should be considered by the jury.
The basis for this ground of appeal were the directions given by his Honour at SU 11 - 12 as follows: "On a couple of occasions throughout the trial there have been references to the fact that the accused are being tried together. That is certainly the case, but equally it is done, as it were, as a matter of convenience. The case against each accused must be considered by you separately. You will be required in due course to return a separate verdict in relation to each of the counts against each of the individual accused. You should not in the course of your deliberations seek to determine, as it were, jointly, whether the accused are guilty. You must consider the case for and against each accused quite separately. As I have said, there are in fact two trial proceedings before you but they are proceeding simultaneously. Now because of that there is one particular matter to which I have to refer and it is this. I think I may have said to you in the course of the trial that there was some evidence which is available to you, and which is therefore proper to consider, in the case against the accused Dirk Slotboom which is not available for you to consider in the case against the accused Fadi Shamoun. In broad terms that evidence falls into these categories: Firstly, the evidence concerning what I will call the fountains business which was conducted by the accused Dirk Slotboom; secondly, the evidence relating to Mr Slotboom's dealings with Sydney City Council and those contracts; and thirdly, the recorded conversations between the accused, Slotboom and others which you have heard played. That is all evidence in the case against the accused Dirk Slotboom only, and I direct you that none of that evidence can be taken into account in your deliberations in the case against Fadi Shamoun."
The applicant submitted that his Honour gave no appropriate direction as to how the co-accused's evidence, and witnesses called in support, was to be treated. He submitted that there was a distinction between (a) a direction that the co-accused's case is to be considered separately from the case of the applicant and (b) a direction that the evidence given by the co-accused cannot be used in any way against the appellant. The applicant submitted that the jury should have been told that the evidence given by the co-accused could not be used by them to draw any adverse inferences or make adverse findings against the applicant. Consideration
This ground of appeal is misconceived. A proper reading of his Honour's direction makes it clear that his Honour did the very thing which the ground of appeal asserts did not occur. Not only did his Honour make it clear that the case against each accused should be considered separately, but he identified with precision particular evidence in the case of Slotboom, that was not available for them to consider in the case against the applicant.
When one considers the case of each accused, it is apparent that there was no inadequacy in his Honour's direction. The applicant's case was that he was not involved in any way with the killing of the deceased. There was nothing in Slotboom's evidence to link the applicant to him. Slotboom denied all knowledge of both Saad and the applicant. Even on the Crown case, the applicant's involvement in the offence was entirely at the behest of Saad and there had been no direct involvement between him and Slotboom. When one has regard to the substance of Slotboom's evidence, and the nature of the applicant's case, there was no risk of the jury impermissibly using Slotboom's evidence against the applicant. Importantly, the applicant has not identified any evidence in Slotboom's case which was capable of being misused by the jury to his detriment.
Each of the three senior counsel who appeared at trial stressed the discrete nature of the different cases against Slotboom and the applicant. The jury were directed in the terms set out above. No direction was sought by senior counsel for the applicant.
This ground of appeal has not been made out. Application for leave to appeal against sentence
In relation to his sentence, the applicant relies upon the following grounds: Ground 1 - His Honour erred in giving insufficient weight to the applicant's medical condition such that the applicant will suffer hardship in custody. Ground 2 - His Honour did not give sufficient weight to the applicant's cognitive impairment and erred in giving excessive weight to the concept of general deterrence. Ground 3 - His Honour erred in not finding special circumstances pursuant to s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW). Ground 4 - The sentence imposed on the applicant was manifestly excessive and outside the appropriate range. PROCEEDINGS ON SENTENCE
Having set out his factual findings, the sentencing judge turned his mind upon the applicant's intention. Having reviewed the facts and the competing submissions, his Honour concluded that at the time of the murder, the applicant did not intend to kill the deceased but intended to inflict grievous bodily harm upon him.
As already indicated, his Honour was not satisfied beyond reasonable doubt that the applicant killed the deceased for reward. On the other hand, his Honour was also not satisfied on balance that the more likely scenario was that the applicant had been prevailed upon by Saad who had taken advantage of his limited intelligence. In the result, his Honour found that he was unable to make any specific finding as to motive.
In summary his Honour made the following factual findings in relation to the offending: The applicant was enlisted by Saad. The applicant was armed when he broke into the deceased's home. The applicant's attack on the deceased was unprovoked and the deceased was unarmed. The deceased suffered a fractured rib and various lacerations, grazes, bruises and abrasions. The deceased died as a result of a fatal penetrating wound through his back which severed his pulmonary artery. The offence was aggravated by reason that it involved the actual use of a weapon (s 21A(2)(c)). The offence was aggravated by reason that it was committed in the home of the deceased (s 21A(2)(eb)). The offence was aggravated by reason that it was planned (s 21A(2)(n)). The evidence did not enable his Honour to make a finding as to the applicant's motivation to commit the offence.
His Honour then made a number of findings in relation to the applicant's subjective circumstances. In that regard, his Honour noted that the applicant did not give evidence on sentence and that the information as to his background was taken from the medical evidence, and in particular from the report of Dr Furst, a psychiatrist which was tendered in his case.
At the time of sentence, the applicant was aged 29 and was the third child of his parents. He had three brothers and one sister. He was born in Iraq, fled to Jordan and then to Syria with his family, before migrating as a refugee to Australia when he was aged 21. He left school when aged 10 or 11 and had only a limited education in Iraq. He did not attend school when living in Syria and worked as a plumber during that time. Although the applicant worked in some capacity for a plumbing company in Australia, he was unable to undertake an apprenticeship because of his poor literacy skills and the effects of a previous motorcycle accident.
There was before the court a testimonial from a priest of the Holy Apostolic Catholic Assyrian Church of the East. He described the applicant as a helpful and faithful member of the Church community. He also described the applicant's family as a well respected family in the Assyrian community, who played a substantial and positive role in the community's affairs.
The applicant had a very limited criminal history with only a conviction in 2006 by the Local Court for an offence of common assault for which he was fined. His Honour took into account the absence of previous convictions as a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act. His Honour also took into account as mitigating factors that the injury giving rise to the offence of malicious wounding was not substantial and that the commission of such an offence was not part of a planned criminal activity.
His Honour found that the applicant had shown no remorse for his actions.
Apart from two reports of Dr Furst, there was before the court a report of Dr Bruce Westmore prepared on behalf of the Crown.
Dr Westmore obtained a history from the applicant that he had suffered a head injury in a motorcycle accident, and another head injury when he jumped from a balcony. Dr Westmore had available to him a hospital discharge summary dated 1 June 2008 which recorded that the applicant had been diagnosed with a subdural haematoma following an earlier fall from a balcony, but that he was discharged on the same day as he presented.
Dr Westmore found that the applicant was not suffering from a major depressive disorder, and he could not identify any psychotic symptoms. He concluded that although the applicant was of dull or compromised intelligence, he was not mentally retarded. Dr Westmore found that the previous head injury, following the fall, had left the applicant with "some traumatic brain damage". He found no evidence that the applicant suffered from a confusional state, nor that the applicant appeared to be distracted or suffer major problems with attention and concentration.
Dr Furst examined the offender following the jury's verdict. Dr Furst took a history that the applicant was involved in a motorcycle accident in either 2005 or 2006, and that he was involved in a car accident in 2007. The history included that the applicant had jumped from a balcony in 2008 as a result of which he had memory problems, as well as a loss of taste and smell. Dr Furst understood that the applicant had literacy problems before the accident in 2008.
Dr Furst concluded that the applicant had evidence of cognitive impairment and reported that although he did not have the results of formal neuropsychological testing available, the applicant's presentation was in keeping with having a significant acquired brain injury. This, he said, had produced cognitive defects which were also significant. He found that the offender did not appear to be suffering from any major mental illness.
In a supplementary report of 3 June 2012 Dr Furst was asked to report on the applicant's "future dangerousness". On that issue, Dr Furst reported as follows: "Some of his protective factors include that he does not currently present with features of a mental illness, he is no longer abusing alcohol and other drugs, he is incarcerated, and he has evidence of significant cognitive impairment, which will make it harder for him to plan and organise himself in the future. His cognitive impairments may also act as an additional protective factor, as it appears to have led to social avoidance, meaning he may be les (sic) likely to associate with pro-criminal peers in the future. Dynamic factors that may improve over time are his attitudes, level of insight and impulsivity. His risk of future offending could also be reduced through engagement in a suitable program for his offending... Having regard to his psychiatric and social history, the offence in question, and his current mental state, I am of the opinion that his risk of future violent offending is moderate... He may well require additional support, structure and assistance when placed in the community which could lower the potential for future dangerousness."
Dr Furst accepted that no neuropsychological report was available to determine the extent of any brain damage. He agreed that the fact the applicant had been discharged on the same day as he presented to the hospital following the fall in 2008, probably meant that the injury was not at the "severe end of the spectrum".
His Honour noted the submission by the applicant that he suffered from a traumatic brain injury although it was not suggested that such injury was directly relevant to the commission of the offences. Nevertheless, the applicant submitted that because of this condition, general deterrence should be afforded less weight. His Honour was asked to find special circumstances.
His Honour set out his conclusions as follows: "80 Given the opinions of Drs Westmore and Furst I am satisfied that the offender has a brain injury. Both specialists reached that conclusion. The real issue concerns the severity of that injury, that being an issue in respect of which the opinions of the specialists differed … … 83 For all of these reasons, whilst I am satisfied that the offender suffers from a traumatic brain injury, I am not satisfied that its significance is as reported by Dr Furst. On the whole of the evidence, I find that the offender's brain injury is not in the severe end of the range. 84 Both Dr Westmore and Dr Furst concluded that the offender does not suffer from any mental illness. Further, on the basis of their opinions, there is no evidence that the offender suffers from any severe intellectual handicap. For the reasons I have previously expressed, I find that any cognitive deficit which has arisen as a consequence of the offender's brain injury is, commensurate with my earlier findings, not severe. For these reasons, I do not regard this as a case where considerations of general deterrence are totally outweighed by other factors. Although the offender's brain injury remains a matter to be taken into account in his subjective case on sentence, general deterrence remains a matter of importance."
His Honour refused to make a finding of special circumstances. "85 As to special circumstances, the authorities make it clear that circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that, if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]). On the evidence before me, I am not satisfied that this is the case and accordingly, I do not find special circumstances. The period in which the offender will be on parole will be significant in any event." Ground 1 - His Honour erred in giving insufficient weight to the applicant's medical condition such that the applicant will suffer hardship in custody.
The applicant submitted that having found a brain injury, his Honour did not give effect to that finding. He submitted that it was not the extent of the brain injury which was important, but rather the impairment which it produced. The applicant submitted that with such an injury, his Honour should have found that he would find his time in custody more difficult and should have reduced his sentence accordingly. Consideration
The sentencing judge fully analysed the reports of Drs Furst and Westmore. As a result of that exercise, his Honour identified a number of factors that undermined Dr Furst's conclusions, namely: 1. There was only one occasion (not three) that Dr Furst agreed could have caused the applicant's brain injury, i.e. the balcony fall in 2008. 2. Following the balcony fall in 2008, the applicant had been discharged from hospital on the same day and did not require intensive care treatment, which Dr Furst accepted "probably meant that the injury was not at the severe end of the spectrum". 3. To accurately determine the extent of any brain damage, neuropsychological testing should be conducted but despite an opportunity having been given to the applicant to get this evidence, no such report had been tendered. 4. Dr Furst's conclusion in his second report were difficult to reconcile with his oral evidence, particularly the concessions made under cross-examination.
Senior counsel for the applicant submitted that the brain injury was relevant only to considerations of general deterrence and special circumstances. No submission was made that the applicant would suffer greater hardship in custody and no evidence was adduced in relation to that issue. Dr Furst noted that the applicant's "cognitive factors may also act as an additional protective factor as it appears to have led to social avoidance meaning that he may be less likely to associate with his pro-criminal peers in the future" (sentence judgment at [74]).
The applicant had the onus of establishing a mitigating factor on sentence and is normally bound by the way he conducted his sentence proceedings. As Johnson J observed in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 (with whom McClellan CJ at CL and Rothman J agreed) at [81]: "81 … in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. …"
In summary, there was no evidence that the applicant's conditions of custody would be more onerous due to his brain injury and there was no submission made to that effect in the sentence proceedings. This ground of appeal has not been made out. Ground 2 - His Honour did not give sufficient weight to the applicant's cognitive impairment and erred in giving excessive weight to the concept of general deterrence.
No submissions were made in support of this ground, either orally or in writing, other than to refer the Court to the evidence of Drs Furst and Westmore. Consideration
The Court was not referred to any part of the sentence judgment which was said to contain error. This is not surprising since his Honour carefully analysed the reports of each doctor and the oral evidence before arriving at his conclusions. The ground of appeal does not suggest that these matters were ignored by his Honour, but asserts that in the case of his cognitive impairment it was not given adequate weight and in the case of general deterrence, it was given too much weight.
The difficulties confronting a ground of appeal couched in such terms were identified by Gaudron and Gummow JJ in Dinsdale v R [2000] HCA 54; 202 CLR 321 at [24] where their Honours said: "24 We agree with Kirby J, for the grounds given by his Honour, that the reasons of the Court of Criminal Appeal do not disclose what it was that constituted error by the sentencing judge; whilst the opening paragraph of the reasons of the Court of Criminal Appeal state the need to find error causing the discretion of the trial judge to miscarry, the appellant was entitled to the articulation of what that error was and should not have been left to seek to infer the shortcomings of the reasons of the trial judge which warranted appellate intervention."
The reasons of Kirby J to which Gaudron and Gummow JJ referred were: "63 Because the necessity to find and identify error to justify appellate disturbance of the sentence of the primary judge constitutes an important constraint on unwarranted appellate interference in sentencing, the absence in the reasons of Murray J of a clear finding of error, and identification of the content of such error, prima facie entitled the appellant to succeed in this appeal. It may be said to be unlikely that the Court of Criminal Appeal would have overlooked so elementary and fundamental a feature of the exercise of its jurisdiction. …"
It was not submitted in the sentence proceedings that the applicant's cognitive impairment was directly relevant to the commission of the offence. His Honour's approach to the medical issue was well reasoned and supported by the evidence to which his Honour referred. As a result, his Honour found that while the applicant did suffer a brain injury, it was not severe and he did not suffer a severe intellectual handicap.
This ground of appeal has not been made out. Ground 3 - His Honour erred in not finding special circumstances pursuant to s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant submitted that the circumstances surrounding his incarceration were such as to require a finding of special circumstances. The matters which he identified were: 1. The first time in prison. 2. Institutionalisation. 3. Cognitive impairment. 4. The need for rehabilitation upon release.
The applicant submitted that these circumstances were special and that there should have been a finding to that effect. Consideration
The question of whether the ratio of the non-parole period to the head sentence should be adjusted to less than the 25 percent prescribed by s 44(2) involves a discretionary finding of fact in respect of which this Court would be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83], Caristo v R [2011] NSWCCA 7 at [27].
This Court has said on a number of occasions that the presence of circumstances which are capable of constituting special circumstances does not compel the Court to make such a finding and to reduce the non-parole period (R v Fidow [2004] NSWCCA 172 at [22]). The decision to find special circumstances is firstly one of fact, to identify the circumstances and secondly, one of judgment to determine whether those circumstances justify a lowering of the non-parole period below the statutory ratio (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [73]). The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge (R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; R v MD [2015] NSWCCA 37 at [38]).
The difficulties confronting a ground of appeal expressed in these terms was set out in R v Simpson by Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) as follows: "73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive."
In determining the appropriate non-parole period, the sentencing judge's primary focus is on assessing the minimum period of actual incarceration necessary to give effect to the multiple purposes of sentencing (Power v R [1974] HCA 26; 131 CLR 623; R v Simpson at [65]). It should be noted that the fixing of a non-parole period solely or primarily by reason of considerations of rehabilitation has long been rejected (R v Simpson at [59]). Similarly, the fact that it is an offender's first time in custody has repeatedly been criticised as a basis for finding special circumstances (R v Clark [2009] NSWCCA 49 at [12]; Collier v R [2012] NSWCCA 213 at [35] - [36]).
The issue of whether he should find special circumstances was specifically considered by the sentencing judge and in the exercise of his discretion for the reasons which he set out, he declined to make such a finding. No error, either patent or latent, has been identified. This ground of appeal has not been made out. Ground 4 - The sentence imposed on the applicant was manifestly excessive and outside the appropriate range.
The applicant submitted that given the findings of fact by the sentencing judge as to his role in the murder and his subjective circumstances, the sentence imposed was outside the permissible range. In support of that proposition, he provided to the Court 33 sentence judgments involving the offence of murder, decided between 2006 and 2014. The Court was invited to find a range of appropriate sentences by reference to those cases. The range was not specifically identified in submissions, other than to assert that the cumulative effect of those cases was to establish that the sentence in this case was manifestly excessive. Consideration
The somewhat arbitrary selection of 33 sentences for murder does not establish a range for the offence. As those judgments make clear, murder is a protean offence with each case depending very much upon its own facts. As Dinsdale v R and Markarian v R [2005] HCA 25; 228 CLR 357 made clear to succeed on this ground of appeal the applicant must demonstrate that the sentence was "unreasonable or plainly unjust". This is to be established within a context of the exercise of a discretionary judgment where there is no single correct sentence (Bugmy v R [2013] HCA 37; 249 CLR 571 at [24]).
In Dinsdale Kirby J identified the task confronting the applicant in this ground of appeal as follows: "59 As on appeal from discretionary decisions it will sometimes not be possible to identify with exactness an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing it will commonly be the case that the appellant court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that in some way the exercise of the powers of the primary judge has miscarried."
To succeed on this ground, it is necessary for the applicant is to persuade this Court that the sentence imposed by Bellew J was outside the range of sentences that could justly be imposed for murder consistent with correct sentencing standards. Even if this Court would have exercised the sentencing discretion in a manner different from that of the sentencing judge, that is not sufficient. What has to be established is error of the kind identified by Kirby J in Dinsdale, i.e. that the sentences are so excessive that they could be properly characterised as "unreasonable or plainly unjust".
The applicant has failed to articulate how the head sentence of 27 years with a non-parole period of 20 years is outside the permissible range of sentences given the circumstances of this offence. On the contrary, to the extent that the 33 cases to which the Court was referred are relevant, they establish that such a sentence as was imposed by Bellew J was well and truly within the available range.
The applicant killed the deceased in his bedroom, in the presence of his wife. The attack was completely unprovoked, with the applicant having no personal connection to the deceased. The offence was pre-meditated and planned. There is nothing in the applicant's subjective case that would mitigate the sentence to any great extent. Given the legislative guideposts of life imprisonment and a standard non-parole period of 20 years, it cannot be said that this sentence was unreasonable or plainly unjust.
This ground of appeal has not been made out. Conclusion
The orders which I propose are as follows: 1. In relation to the conviction appeal, leave to appeal should be granted but the appeal should be dismissed. 2. In relation to the sentence appeal, leave to appeal should be granted but the appeal should be dismissed.
HALL J: On 28 March 2012, the applicant, Fadi Shamoun, following a trial which commenced on 6 February 2012 was found guilty by a jury of the following offences: 1. That on 24 June 2007, at Castle Hill in the State of New South Wales, he did murder Richard Carruthers; 2. That on 24 June 2007, at Castle Hill in the State of New South Wales, he did maliciously wound Thi Lian Phuong Carruthers.
The jury could not agree in relation to a number of counts against a co‑offender, Dirk Slotboom, with whom the applicant stood trial.
Following the applicant's conviction on both counts the applicant stood for sentence before the trial judge (Bellew J) on 29 June 2012.
The applicant was sentenced as follows: 1. In respect of the offence of the murder of Richard Carruthers a sentence comprising a non-parole period of 20 years imprisonment commencing on 4 June 2009 and ending on 3 June 2029, with an additional term of 7 years imprisonment commencing on 4 June 2029 and ending on 3 June 2036, being a total term of 27 years imprisonment. 2. In respect of the offence of maliciously wounding Thi Lian Phuong Carruthers, the applicant was sentenced to a non-parole period of 9 months imprisonment, commencing on 4 June 2009 and ending on 3 March 2010, with an additional term of 3 months imprisonment commencing on 4 March 2010 and ending on 3 June 2010, a total of 12 months imprisonment.
On 30 September 2013, a Notice of Application for Leave to Appeal was filed in which the following grounds of appeal were relied upon: "Conviction grounds: Ground 1 - the Verdict was unreasonable (a) It was unreasonable for the jury to find beyond reasonable doubt that the Applicant had caused the death of the Deceased; (b) That the evidence of the key prosecution witness Mr Saad lacked probative force to the extent that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence. Ground 2 (a) His Honour erred in directing the jury in relation [to] the test of beyond reasonable doubt by introducing the concept of innocence of the accused as a consideration for determination. Ground 3 (a) The trial judge erred in the directions to the jury with respect to failing to indicate that the evidence given by Dirk Marten Slotboom could not be used against the Applicant, as opposed to the case against each accused being considered separately. Severity grounds Ground 4 (a) His Honour erred in not finding special circumstances. (b) His Honour erred in giving insufficient weight to the Applicant's medical conditions and the fact that the Applicant because of such medical conditions would find his time in custody more onerous. (c) The Sentence imposed upon the applicant was manifestly excessive."
The applicant seeks leave to appeal against his conviction and sentence. Leave is required in relation to the conviction appeal by reason of the fact that Ground 1 raises questions of fact and Grounds 2 and 3 require leave pursuant to Rule 4 of the Criminal Appeal Rules in that they assert errors in the trial judge's directions which were not raised at trial.
The Crown case at the joint trial of the applicant and his then co-accused, Dirk Slotboom was that they murdered Richard Carruthers (the deceased) on Sunday, 24 June 2007. Mr Carruthers died as a result of a physical attack at approximately 4:00am in the deceased's bedroom. The Crown case was that the applicant attacked the deceased, fatally stabbing him. Death was the result of the combined effect of the knife wound which penetrated the pulmonary artery, loss of blood and a collapsed lung.
The deceased's wife suffered wounds to her wrists and a broken ankle as she escaped from her house in which the attack occurred.
The Crown case was that the motive for the attack was continuing and deep-seated animosity held by the co-offender Slotboom towards the deceased. There was no evidence that the applicant and Slotboom had ever met. The Crown case was that the applicant stabbed the deceased for money to be paid by Slotboom, who it alleged procured the killing through intermediaries, including Mr Robert Wakim.
Mr Wakim was a friend and business associate of Slotboom. He worked in a used car yard which Slotboom frequented. There was evidence that Slotboom had complained to Wakim about the deceased's conduct.
Slotboom had employed the deceased for a number of years up to 1996. The deceased left his employ to start a similar business in competition. The work involved directing, designing and maintaining water fountains.
Slotboom's motivation was said to have arisen from a grievance against the deceased because he believed the deceased had removed paperwork and had taken existing clients with him when he set up his own business trading as "Water Features Australia".
Slotboom owned a business called "Waterforms International". He had from time-to-time bought motor vehicles from Robert Wakim whose brother operated a car yard known as "Four-Wheel-Drive City", which business employed a person, Andrew Maatouk.
Wakim's evidence at the trial was that Slotboom approached him and asked him if he knew anyone who could get his paperwork back and that he wanted the person who took it to be "taught a lesson". Wakim's evidence was that Slotboom "hated this guy [the deceased] with a passion": T 20 February 2012 at p 756. There was evidence that Slotboom asked Wakim whether he knew somebody who would "rough him up."
The Crown case proceeded upon the basis that Wakim then introduced Maatouk to Slotboom as someone who knew "lots of people and one of them was likely to do what Dirk [Slotboom] wanted": T 20 February 2012 at p 763:35.
One such person was 'Saad' (a pseudonym) who was a friend of Maatouk and who often called in to Four-Wheel-Drive City. Maatouk introduced Saad to Slotboom some months prior to the murder.
The Crown case was that Saad agreed to "do the job" and said that he would do it with "Ricky" (identified by Saad as the applicant). This conversation was said to have occurred approximately six weeks prior to the killing.
It was alleged that Saad was given a piece of paper with the deceased's details on it by Slotboom. Saad allegedly gave Slotboom a price of $30,000: T 320:44.
On the night of the attack, on the Crown case, Saad drove the applicant to and from the deceased's home and then helped destroy the clothes and shoes worn by the applicant at the time of the attack.
The attack upon the deceased occurred at approximately 4:00am in Sydney, on 24 June 2007. Mrs Carruthers (who gave evidence at the trial as Ms Nguyen) and the deceased were in bed and she was awoken by a very large banging noise in their home at Castle Hill. Mrs Carruthers, who either wore contact lenses or glasses, had neither on at the time. She said that she saw a tall person with a big build and belly, enter the bedroom and approach the deceased's side of the bed.
Mrs Carruthers could only make out shapes and could not see small details. It was dark and she was not sure but she thought that the male who entered their bedroom had a beard. She did not speak to him. She said he commenced beating the deceased and bashing him. She, in due course, ran from the bedroom calling for help and injured her ankle when running from the house.
Police officers arrived at the scene shortly after the attack on 24 June 2007. In the course of their examination, both inside and outside the house, a number of items were located. These included a small piece of white coloured rubber about the size of a twenty cent coin. It appeared to be similar to a piece of latex glove shown in police photos at Marker D of Photograph 12 which formed part of Exhibit D at the trial.
Evidence was called by the Crown from Michelle Franco, a forensic biologist, who conducted various tests and inquiries as to the presence of DNA on various items located at the scene. Evidence was also called from Detective Jason Dixon, a fingerprint expert.
Ms Franco, in relation to DNA evidence, identified blood on the clear plastic located near the premises and indicated that this had the same DNA profile as the deceased.
Ms Franco gave evidence (discussed in more detail below) that very weak DNA results had been obtained from the piece of white latex referred to above at [174]. The results identified Mohammed ('Ali') Muhieddine as one of at least three possible contributors from a database. However, Ms Franco noted that this testing was done in an attempt to turn up an investigative lead for police, and would not satisfy the requirements for use as identification evidence.
The fingerprint evidence given by Detective Dixon was to the effect that the only identifiable prints lifted from the scene were those of the deceased. None of the prints could be linked to the applicant, Maatouk or Muhieddine with the exception of that depicted in Exhibits W1 and W2 at the trial (being the left index finger enlargement from Exhibit W1) which in his opinion was made through some kind of plastic glove. The applicant could not be excluded at first level detail because he had a "whorl pattern" on his left index finger. The persons Saad, Maatouk and Muhieddine did not have such a pattern.
Part of the applicant's case was that based on the DNA evidence there was a 'reasonable possibility' that the killer was someone else and possibly Mr Muhieddine. Mr Muhieddine was called at trial. He gave evidence denying any involvement in the attack on the deceased, or being in that vicinity at the time. By reason of injuries he had received on 24 April 2007, including in particular to his ankle, he denied that he would have been able to climb over the deceased's back fence due to his injured ankle.
Saad gave evidence that in the early hours of the morning of 24 June 2007 he was in the company of the applicant and drove him to the deceased's premises in Castle Hill, parking nearby. Both alighted from Saad's vehicle and looked over the back fence, smoked a cigarette and returned to the motor vehicle, drove a short distance and returned. The applicant alighted wearing clothing given to him by Saad earlier that morning. The applicant also wore plastic gloves supplied by Saad.
According to Saad the applicant entered the deceased's home via the back door. Saad said he heard screams and the applicant returned to his motor vehicle within minutes with blood on his clothing. Saad drove off with the applicant in the front passenger seat. The applicant is alleged to have made an admission to Saad to the effect that he stabbed the deceased.
Saad's motor vehicle was photographed on two occasions by speed cameras. The photographs taken were the subject of Exhibits M1 and M2. The speed camera photographs captured were as follows:

3:54am Sunday, 24 June 2007 on Old Northern Road, Castle Hill
4:05am Sunday, 24 June 2007 on Pennant Hills Road, Oatlands

Saad identified the applicant as the person in the front passenger seat of the car at the time the speed camera photographs were taken. The photographs were of poor quality and of insufficient detail to identify the applicant as the passenger.
Saad gave evidence that he drove to his residence after the attack where he and the applicant burnt the clothing and gloves previously supplied by Saad in a nearby park. A few days following the murder there was evidence that Wakim paid $40,000 cash to Maatouk on instructions from Slotboom. Saad's evidence was that he subsequently was given "fifteen grand" by Maatouk which he said he gave to the applicant a couple of days after the murder: T 13 February 2012 at p 325.
Saad was charged with the murder of Carruthers but was subsequently given an indemnity from prosecution in return for his evidence implicating the applicant.
Wakim and Maatouk were not charged and each gave evidence with the protection of a s 128 certificate under the Evidence Act 1995.
The case for the applicant was that: 1. He was not involved in the murder in any way and that either Saad was the killer or another man with whom he drove to the premises of the deceased, possibly Maatouk or Muhieddine was the killer; and 2. Saad, Maatouk and Wakim were unreliable witnesses.
In relation to the conviction grounds set out in the Notice of Application for Leave to Appeal, I have had the benefit of reading the judgment of Hoeben CJ at CL. I respectfully agree with his Honour in relation to Grounds 1, 2 and 3. In relation to Ground 1(a) and (b) I address below the evidence, issues and conclusions which I have reached in relation to those grounds. I have approached those grounds by an examination of the evidence, including in particular the evidence relevant to the asserted deficiencies claimed on behalf of the applicant to have existed in the Crown case as well as reviewing and analysing the evidence to the extent to which it supported the principal witness called in the Crown case, Saad. Ground 1: Unreasonable Verdict
This ground requires an independent assessment of the whole of the evidence in determining whether this Court considers that it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; 213 CLR 606 at [25], [55]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11], [14].
In undertaking the assessment as to the asserted unreasonableness of the verdict it is well-established that a jury's consideration as the primary decision-maker must be brought into account.
In M at 493, the Court, Mason CJ, Deane, Dawson and Toohey JJ observed: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it 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. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."

When shown the speed camera photographs of his vehicle (Exhibits M1 and M2) his lie in saying he did not recognise himself as driver: T 14 February 2012 at p 361:50-T 362:1-5).
His lie in telling police that he did not know who was in the vehicle with him when photographed by the speed camera: T 14 February 2012 at p 362:10-20.

Evidence as to payment of monies

The submission for the applicant in this Court was that the Crown case did not demonstrate a motive on the part of the applicant. In this respect reliance was placed upon the sentencing judge's Remarks on Sentence in which his Honour was reluctant to make a finding as to motive to the criminal standard.
It was the Crown case that the applicant, through Saad, received payment for his involvement in the murder. Saad said that, upon receiving a first payment from Maatouk a few days after the murder, he immediately delivered a portion of that payment to the applicant: T 13 February 2012 at pp 325-6. Saad said that he delivered the money to the applicant at his workplace, which was a building site in Parramatta. At the time, a person, Joseph Saad, who was the applicant's manager, confirmed that he saw Marcel Halabi at the building site in mid-2007. He recalled seeing Saad's blue utility and he saw him talking to the applicant: T 21 February 2012 at pp 934-5.
The Crown's submission to this Court was that comments made by the sentencing judge in his Remarks on Sentence are not a proper basis for assessing the evidence as to motive. Reliance was placed upon the observations of the High Court in SKA, supra at [110]-[115] and of this Court in Mansaray v R [2015] NSWCCA 40 at [66]. The Crown submitted that the evidence of Mr Joseph Saad, "… lends important independent support to [Saad]": Crown Written Submissions at [21].
Whilst comments made by a trial judge in the course of sentencing remarks may provide help or assistance they, of course, are not determinative: SKA at [110]-[115]; Mansaray v R, supra, at [66].
The Written Submissions on behalf of the applicant relied upon the trial judge's Remarks on Sentence, in particular at p 57 as to the discrepancy in the evidence concerning the amount of money to be paid and the circumstances of payment as between Saad and Mr Maatouk.
In his Summing Up, the trial judge referred to the evidence as to the payment of monies following the death of Mr Carruthers. Reference was made to the two occasions on which monies were said to have been paid. The Summing Up referred to the evidence of Mr Maatouk that shortly after the attack Saad spoke to him and asked him for money and that Saad was putting pressure on him to obtain money from either Mr Wakim or Mr Slotboom. His evidence was that a couple of days later Mr Wakim counted an amount of money in front of him of about $30,000. When questioned by the Crown Prosecutor as to whether the sum could have been closer to $15,000 Mr Maatouk responded by saying that he was not really sure about the amount. His evidence was that the money was put into a round cylinder and that he drove to the Milperra area where he handed the money over to Saad.
On a later occasion Mr Maatouk gave evidence that Saad was to go away and needed money for legal costs. He said he spoke to Mr Wakim and told him that Saad was putting pressure on him and that after that conversation he saw Mr Slotboom carrying a pink backpack at Four-Wheel-Drive City. He said the backpack ended up with Mr Wakim who pulled a yellow envelope out of it and there was money there which was ultimately given to Saad. This was evidence, possibly, of a second payment to Saad.
Mr Maatouk was cross-examined on an examination of him conducted by the New South Wales Crime Commission in November 2008. He was cross-examined about the evidence that he gave to the Commission as to amounts of money. He was asked about what he referred to as the second amount of money, being money, on his account, that related to Saad's request that he wanted money for legal expenses. He agreed that in the first statement to police he had said nothing at all about money in the pink backpack and only said that he had been handed a package. He gave as a reason for not mentioning the pink backpack that he did not think it was important at the time.
As noted above, Mr Maatouk gave evidence of Saad speaking to him shortly after the murder asking him "for the money. He was putting pressure to get money off Robert or Dirk": T 16 February 2012 at p 570:20-25. He then gave evidence as to the money being produced by Mr Robert Wakim a couple of days later stating that he counted about $30,000: T 16 February 2012 at p 571:1-15. He later said that he did not know whether the amount could have been less than that and in fact $15,000: T 16 February 2012 at p 571:40-50.
He then gave evidence as to a conversation about money in the latter part of 2007 to which reference has been made at para [250] above.
Mr Maatouk then gave evidence at trial in relation the pink backpack at T 16 February 2012 at pp 575-6. He said that he saw Saad count the money that was in the "second package of money" but did not recall how much money was in it: T 16 February 2012 at p 576:30-50.
He gave evidence that a couple of weeks later Saad rang him and said that the monies that had been paid were "a couple of grand short": T 16 February 2012 at p 577:25-30. He said that he spoke to Robert Wakim about it who said that the money was all there. When asked as to whether he said how much, Mr Maatouk said "He was talking a quantity with, of about $50,000": T 16 February 2012 at p 577:35-40. He said he thought that was the total of both amounts of money that had been paid: T 16 February 2012 at p 577:40-50.
In the Crown's submissions to this Court the Crown observed that the evidence as to the amount of money making up payments said to have been paid was confusing. It was submitted that the "sentence findings in relation to motive and the payment" was of little significance and did not advance the issue very much: T 28 April 2015, p 23:15-25.
In the trial judge's Remarks on Sentence dated 29 June 2012, his Honour referred in some detail to the evidence as to the monies paid after the murder of Mr Carruthers at [47]-[50]. His Honour noted that the Crown accepted that the payment of money to the offender was not an element of the offence of murder and was therefore not a finding which the jury must necessarily have reached in order to return the verdict of guilty. Nevertheless the Crown had submitted that his Honour, for the purpose of sentencing, should find, beyond reasonable doubt, that the offender committed the offence of murder for reward. The Crown submitted that this conclusion was "a matter of commonsense": Remarks on Sentence at [51].
His Honour, after referring to the evidence and submissions relevant to the matter of "reward", stated that whilst there was obviously considerable suspicion attaching to the issue of whether the murder was one for "reward", he was not satisfied beyond reasonable doubt that the offender, in killing the deceased, did so for reward: Remarks on Sentence at [60].
Having considered the evidence and the submissions of the parties at trial, and the submissions to this Court, I have concluded that the evidence in the Crown case was sufficiently cogent for a conclusion to be reached, beyond reasonable doubt, that the murder was carried out for reward, including in particular, financial reward to Saad and the applicant. The evidence as to the amount of monies paid, in particular, that of Mr Wakim, Mr Maatouk and Saad, was vague and in a number of respects inconsistent and contradictory. By reason of the deficiencies in the evidence in that respect, no finding can be made as to the amount or amounts of money paid as "reward" to the applicant.

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