Shmait v R

Ground 1

1. Section 65(2)(b) of the Evidence Act 1995 provides as follows: 65 Exception - criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) … (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) was made in circumstances that make it highly probable that the representation is reliable; or…
2. Mr Nicolas provided what is referred to as a statement to the police about what had happened to him. It was in fact the transcript of his interview with police conducted at 3pm on 16 February 2017, or about two hours after he was assaulted. Mr Shmait objected to the tender in the sentencing proceedings. Mr Nicolas was not available to be cross-examined. Mr Shmait now contends that her Honour erred in two respects in receiving this statement.
3. First, her Honour is said erroneously to have adopted a compendious approach to the question of the admissibility of the representations contained in the statement, contrary to the High Court decision in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32. Secondly, it was not open to her Honour to find that the representations were made in circumstances that made them unlikely to be a fabrication or that they were made in circumstances that make it highly probable that the representations are reliable, so that the preconditions for admissibility in s 65(2)(b) or (c) were not met.
4. The Evidence Act only applies to sentence proceedings if the Court so directs: s 4(2)(a). Neither party made an application that it should apply. However, in the course of the argument about the admissibility of the statement, counsel for the Crown referred to the section. Counsel for Mr Shmait did not do so, contending before her Honour only that the statement should not be admitted because Mr Nicolas was not available for cross-examination and that if it were admitted, his absence was relevant to the weight that it should be given.
5. Her Honour proceeded in any event upon the basis that the section was relevant. While observing that there was no issue that Mr Nicolas was unavailable despite efforts to locate him, her Honour said this: "Whilst he was hit around the head area there are a number of aspects of his statement that appear reliable. He talks about where he was, being at North Bondi, being with friends, being assaulted, he talks about weapons, he talks about injuries that were occasioned to his face. The statement is responsive to the questions that were asked of him and in my view not only is subs 65(2)(c) made out but also subs (2)(b). The interview was made shortly after the asserted facts occurred in circumstances making it highly unlikely the representation is a fabrication and it is highly probable that the representations are reliable and accordingly I admit the statement pursuant to s 65."
6. It is accepted by the Crown that it is open to this Court to proceed upon the basis at s 4(2) of the Evidence Act was properly engaged before her Honour and that the appropriate direction was made.
7. Mr Shmait contended that, upon the basis of what was said in Sio, her Honour's approach to the representations was flawed. In that case, the High Court said this at [57]-[58]: "[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65. [58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act."
8. Sio has been recently considered in this Court in Prasad v R [2020] NSWCCA 349 at [85]-[87], [89] as follows: "[85] Taking that approach was of particular importance in Sio because, as the High Court said, '[w]hile it is true to say that, generally speaking, the totality of Mr Filihia's statements were against his own interest, his statement that Mr Sio gave him the knife and put him up to the robbery was, given the circumstances in which that statement was made, plainly apt to minimise his culpability by maximising that of Mr Sio' (at [68]). For this reason, consideration of reliability needed to focus on this particular, critical statement rather than simply on Mr Filihia's statements generally. [86] The Court then turned to consider the reference in s 65(2)(d) to the 'circumstances' that may make it likely that the representation in question is reliable. The Court said in this regard that attention should be directed "not to the apparent truthfulness of the person making [the representation], but to the objective circumstances in which it was made" (at [70]). Their Honours endorsed the observation of Mason P in R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at [29] that the relevant circumstances can include 'evidence of events other than those of the making of the previous representation…' (at [69]). Their Honours then said that the 'circumstances' in which a representation was made: 'may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation.' (At [71]). [87] The Court emphasised that: 'Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.' (At [72]). … [89] I do not however understand Sio to have stipulated that in every case the court must exhaustively list material facts and representations, irrespective of whether it is possible and sensible in the circumstances of the case to deal with certain facts and representations on a group basis. There was, as I have indicated in [85], a particular reason in Sio why the critical representation with which the case was concerned needed to be identified and addressed separately. Undoubtedly, courts applying s 65(2) need to be alert to the existence of such particular considerations."
9. As the Crown submissions have uncontroversially identified, the one presently relevant fact sought to be proved by the tender of Mr Nicolas' statement is whether all of the offenders including Mr Shmait had physically assaulted him. In this respect, Mr Nicolas' statement included the following: "Q. Ah okay, how many people were there? A. I dunno. Three to four maybe. Q. Umm. A. Five max. Q. Um what was their gender? A. I'm not sure, oh male you mean? Yeah all males. Q. All males? A. Yeah. Yeah all males. … A. Well there were three blokes like smacking me with things."
10. In the proceedings on sentence on 20 December 2019, on the application to tender the statement, her Honour said this: "In my view the statement of Mr Nicolas and his then girlfriend are admissible, the Evidence Act doesn't necessarily apply to sentence proceedings but if I'm asked to apply the Evidence Act these are fresh statements made on the day of the offence."
11. In the present case, the limited representations were to a similar effect, namely, how Mr Nicolas came to be injured. It is implicit that the representation of importance was the reference by Mr Nicolas to "three blokes …smacking me with things". It seems to me to be readily apparent that the manner in which her Honour approached the application to admit his statement did not divert attention from the issue of whether Mr Shmait was a physical contributor to the blows inflicted upon Mr Nicolas. Indeed, that representation was the only one of relevance to the Crown case on the question of the identification of who physically assaulted him.
12. The interview with Mr Nicolas was short, having regard to the circumstances in which it occurred. However, it took place within two hours of the assault so that its near contemporaneity meant that the risk of an honestly mistaken recollection of events was slight. In particular, Mr Nicolas was not an accomplice and there was nothing to suggest that his responses were fabricated.
13. In my view, her Honour did not erroneously admit Mr Nicolas' statement.

Ground 2

1. The events that give rise to the charges were relatively brief and undoubtedly somewhat frenetic. Mr Shmait takes comfort in this appeal from the fact that her Honour was faced with less than perfect information and evidence arising out of this incident upon which to determine whether or not he physically assaulted Mr Nicolas. His ultimate submission is that her Honour could not in these circumstances have been satisfied beyond reasonable doubt that he did so. The Crown response is that all of the evidence taken as a whole, and not in a piecemeal fashion, is sufficient to support her Honour's finding.
2. In her remarks on sentence, her Honour said this: "Accepting that it is not possible to specify what action by what male caused what injury, Mr Nicolas, Ms Newitt and Mr Boustani [sic] each recorded in accounts given soon after the events in question that each male who was involved in the attack physically assaulted the victim in some way and there is nothing in the video recording or stills taken from that recording that causes me to have any doubt in that regard. I am satisfied that the offender did in fact physically assault the victim, precisely how I am unable to say, and that when he did that he was armed or had on him the pole."
3. The Crown submitted that, properly understood, that was an available finding beyond reasonable doubt, that each of the males who was involved in the attack physically assaulted Mr Nicolas. Mr Shmait was accepted to be one of the males involved in the attack. The Crown submitted that it therefore necessarily followed from her Honour's finding that Mr Shmait physically assaulted him.
4. Apart from Mr Nicolas, and a video taken on a phone, the evidence consisted of versions of what occurred given by five witnesses.
5. Zoe Newitt participated in a recorded interview with the police at St Vincent's Hospital on the afternoon of the events in question. The interview was tendered without objection. She said that she was sitting with Mr Nicolas in the North Bondi reserve chatting with friends when some guys came up behind her and "started whacking". She said that "they all kind of got on Mick and started hitting him repeatedly in the head around the body". She denied that there was one main aggressor.
6. Her Honour said that Ms Newitt was in a very good position to see what was happening because she was close and was concentrating on Mr Nicolas. Even though she made a mistake about the number of men who attacked him and that they all had weapons, such errors were to be expected and "do not affect the reliability of the central parts of her recollection - namely, that Mr Nicolas was attacked by a group of males, all of whom physically assaulted him and weapons were involved".
7. Charbel Boustany gave a statement to the police hours after the incident and also gave evidence in the sentence proceedings on 27 February 2020. His statement contained the following: "About 1 to 1.30pm on 16 February 2017 I was at North Bondi on the grass with Zoe, Danny and Mick Nicolas. We were sunbaking. All of a sudden Mick got up and started running. I thought he was getting up to say hello to friends. I look up and he was in the bushes at the back of the grassed area. I seen three guys all over him. It could have been four guys. I could not describe them all. I saw their backs towards me. I got up and ran towards them because I could see them all kicking and punching Mick. I could see a weapon, a long weapon, they were using it to hit him. I said, 'Please guys, stop, stop, stop.' One of them - and turned around and came towards me, so I turned around. The guy started chasing me. When that happened Mick got up and sort of ran away and as he was running away he stopped and the guys ran away somewhere I don't know where. Everything happened within ten seconds. I could not give any description of clothing. I did not see their faces. I don't know why it happened. We had been there for maybe an hour before that. Mick drove his car to get there."
8. Her Honour considered that this evidence was effectively contemporaneous and reliable and accorded with the evidence of other witnesses. However, her Honour was singularly unimpressed with the evidence given by Mr Boustany in the sentencing proceedings. Mr Shmait submitted in this Court that her Honour's unfavourable view of Mr Boustany as a witness undermined her Honour's acceptance of the matters to which he referred when interviewed by the police: her Honour described Mr Boustany as a "most unimpressive and disingenuous witness" who was "argumentative…unresponsive and evasive".
9. With respect to Mr Boustany's evidence touching his recollection of who struck Mr Nicolas, her Honour said this: "In relation to that part of his evidence to the effect that his use of the term 'guys' in the statement is just how he talks and does not necessarily mean more than one male, that makes no sense at all given he prefaces the word 'guys' with a number and describes what he saw them 'all' doing. That evidence was a deliberate attempt to undermine the contents of his statement. It is for those reasons that I do not accept the evidence Mr Boustani [sic] gave before me as honest and accurate and I propose to put it aside in my fact finding task. I am satisfied however that his statement regarding seeing at least three males assault the victim is reliable. It is consistent with what other witnesses in close proximity to the events in question describe occurred, namely Mr Nicolas and Ms Newitt, consistent with that part of the incident captured in a recording and it was made very soon after the events in question in circumstances which I am satisfied were reliable."
10. Sarah Sharfenberg provided a statement to the police on 23 February 2017. Her Honour concluded that she "clearly" did not see the whole incident, contrary to Mr Shmait's submissions. He submitted that her Honour's description of Ms Sharfenberg as "confused" should be rejected. He submitted that Ms Sharfenberg in fact saw at least the majority of the incident and in particular that it was only one man, not being Mr Shmait, who struck Mr Nicolas.
11. Jamie Wright and Liam Kelly do not appear to have seen the whole of the incident. Their evidence was effectively silent upon the question of how many assailants physically struck Mr Nicolas.
12. In these circumstances, Mr Shmait submitted that, even taking the evidence of Mr Nicolas, Ms Newitt and Mr Boustany at its highest, it was not open to her Honour to find beyond reasonable doubt that he physically attacked Mr Nicolas or that he was armed with a pole when he did so. The video did not show that Ms Shmait physically attacked Mr Nicolas and the evidence of the other witnesses did not assist in this respect. This should have caused her Honour to have a reasonable doubt. Mr Shmait submitted that the video and the evidence of Ms Sharfenberg provided a foundation for her Honour to find that on balance there was only one offender who physically assaulted and harmed Mr Nicolas.
13. In my opinion, the evidence was not sufficient to support a finding to the criminal standard that Mr Shmait physically assaulted Mr Nicolas. The evidence clearly establishes that he was one of a group of males armed with weapons and that Mr Nicolas was undoubtedly assaulted by one of them, including or perhaps even limited to the offender wearing the white shirt as shown in the video. The statement given by Mr Nicolas does not in my view describe what occurred with a level of detail or specificity that would support the relevant conclusion beyond reasonable doubt. The video is silent on the issue. Ms Newitt's most detailed description, that they "all kind of got on Mick", seems to me to be sufficiently qualified to raise a reasonable doubt when the allegedly supporting evidence is no more emphatic. It is not difficult to appreciate why there was a disputed facts hearing having regard to the frailty of the evidence directly inculpating Mr Shmait in the physical attack on Mr Nicolas.
14. I would allow this ground of appeal. That conclusion is sufficient to require Mr Shmait to be resentenced by this Court: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Grounds 3 and 4

1. Having regard to my conclusions with respect to Ground 2, it is unnecessary to consider these grounds.

Resentence

1. Mr Shmait does not challenge her Honour's findings, apart from those that are based on or which are derived from her impugned conclusion about his role in the offence. Her Honour's finding that Mr Shmait physically assaulted Mr Nicolas is generally relevant to his role and directly relevant to the objective seriousness of the offence and his moral culpability. It is instructive to record her Honour's description of the objective gravity of offence: "An element of the offence is that it was committed in company. Proof of that element requires only that the offender be in the company of at least one other person. He was in fact in the company of two other persons (who remain unknown) when he committed the offence such that Mr Nicolas was confronted by three males, two of whom had armed themselves with weapons in the form of poles, one with something sharp attached to its end. The assault upon the victim was unexpected. It was violent and involved multiple blows. The use of weapons to commit the offence is a matter of significant aggravation. The offence was committed in a public place where there were many people around. That is hardly surprising given it was summertime in the middle of the day. The offence was planned. For the reasons identified earlier I have no doubt that the weapons used by the offender and the first unknown male were in his vehicle prior to arrival at Bondi Beach and removed from the boot by the offender and the first unknown male where, when a discussion took place at that boot area, the offender and the first unknown male then travelled towards the reserve (as captured in the photograph tab 4 of the Sentence Exhibit 1) and met the second unknown male at the top section of the reserve and the trio ran directly towards the victim. The assault was clearly a targeted attack. That said, I cannot say that the planning was particularly extensive or long standing. An important consideration is the offender's role in the commission of the offence. Both the offender and the first unknown male hid those weapons on the offender's direction before retrieving them. Both the offender and the first unknown male waited in the vicinity of the reserve for the second unknown male before running together as a group towards the victim. At that time the offender knew that the intention shared between himself and his co-offenders was to assault the victim while armed. It is accepted by the parties that the offender was at that time acting jointly in the commission of the offence such that he is criminally liable for the actions of his co-offenders. For reasons identified earlier, I am satisfied that the offender did himself physically assault the victim at least once. In addition to that, he waved the weapon he was holding in an extremely menacing and frightening way while yelling at people in the immediate area and preventing such people intervening in the attack he knew was still being committed by the first unknown male. In those circumstances, he derives very little to no benefit at all from the fact that the first unknown male was the more active participant in the assault. In considering the circumstances in which the offence was committed and finding that it was to an extent a planned offence, I find that I am unable to be satisfied to either requisite standard as to the motivation behind the commission of the offence. While I appreciate that the offender asserted it occurred because of a grievance the first unknown male had with the victim, as I have stated, I found the offender to be deliberately dishonest in important respects and I do not accept his evidence regarding the background to the offence. In any event, whatever may possibly have preceded the offence provides very little to no mitigation in circumstances where this offender while in company with two others armed himself with a weapon and participated in an armed assault upon the victim in circumstances where the victim was not himself armed nor was he behaving in a threatening, intimidating or provocative way at all prior to being attacked. Having considered all relevant factors, the offence before this Court falls around or perhaps slightly below the middle of the range for an offence of its type." (Emphasis added)
2. With the exception of the italicised sentence, I propose to adopt the balance of her Honour's findings, including those relating to special circumstances, Mr Shmait's remorse, his subjective circumstances and the discount for his plea. In terms of objective seriousness, I consider that the offence falls below the middle of the range of objective seriousness.
3. Her Honour dealt with Mr Shmait's moral culpability in these terms: "Mr Djemal contends the Court would accept that the offender's moral culpability is reduced because of his limited role and because he acted out of a sense of misguided loyalty to his friend. Notwithstanding the fact I am satisfied he did assault the victim in some way at least once and whatever the motivation behind the offence be, this offender was prepared to participate in a joint plan to violently assault the victim while being armed with weapons at a popular summertime location in the middle of the day when people are around and presumably children given the reserve is close to the children's pool. He was prepared to brandish a weapon throughout the incident to frighten and scare away anyone who tried to intervene. The recording demonstrates the aggressive way he wielded his weapon very close to the victim's friends and but for the fact they moved away the pole would have struck them. He played a significant and serious role in the offence beyond that of a mere attendee ensuring the safety of his friend. Irrespective of his limited physical contact with the victim, his moral culpability is high."
4. After making allowance for her Honour's impugned finding, her description of the matters informing Mr Shmait's moral culpability are unexceptionable and I would embrace them. However, having regard to the fact that Mr Shmait cannot be shown beyond reasonable doubt to have physically assaulted Mr Nicolas, his moral culpability is correspondingly reduced.
5. I propose the following orders: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. In lieu of the sentence imposed by her Honour Huggett DCJ, sentence the appellant to imprisonment for 3 years commencing on 22 January 2020 and expiring on 21 January 2023 with a non-parole period of 2 years expiring on 21 January 2022.
6. BELLEW J: I have had the advantage of reading in draft the judgment of Harrison J.
7. Having reviewed the evidence, I am not satisfied that it was open to the sentencing judge to find, beyond reasonable doubt, that the appellant assaulted Mr Nicolas. I agree with the orders proposed by Harrison J.
8. CAVANAGH J: I agree with Harrison J. Whilst it might be somewhat unusual for this Court to interfere with a finding of fact on sentence, findings adverse to the offender must be made to the criminal standard, that is, beyond reasonable doubt.
9. On my analysis of the evidence, including the witness statements and the video, there is sufficient doubt as to whether the applicant physically attacked the victim that the finding the subject of Ground 2 was not open.

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