R v Ahmed [2000] NSWCCA 199

New South Wales Court of Criminal Appeal

CITATION : R v Ahmed [2000] NSWCCA 199 FILE NUMBER(S) : CCA 60563/98 HEARING DATE(S) : 15/05/00 JUDGMENT DATE : 15 May 2000

PARTIES : Regina v Sam Ahmed JUDGMENT OF : Spigelman CJ at 36; Heydon JA at 37; James J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0214 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : MC Marien - Crown In Person - Appellant SOLICITORS : SE O'Connor - Crown -

DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

060474/99 SPIGELMAN CJ HEYDON JA JAMES J Monday 15 May 2000 REGINA v SAM AHMED JUDGMENT

1 SPIGELMAN CJ: I invite Justice James to give the first judgment. 2 JAMES J: Sam Ahmed has appealed against his conviction, after a trial in the District Court before her Honour Judge Karpin and a jury, on one count of armed robbery. The appellant was legally represented at the trial but was not legally represented on the hearing of the appeal. 3 At the trial there was no dispute that an armed robbery had taken place. What was in dispute was whether the Crown could establish that it was the appellant who had committed the armed robbery. The victim of the armed robbery was unable to identify the appellant as being the robber and hence the Crown case that it was the appellant who was the robber was a circumstantial one. 4 At the trial the victim gave evidence that he was employed as a driver by Mayne Nickless. On the morning of 12 March 1998 he was driving a Mayne Nickless van, loaded with stocks of cigarettes to be delivered to tobacconists and service stations. 5 At about 7.30 in the morning he parked the van close to the premises of a business at Earlwood, where he had to make a delivery. As he was checking the cigarettes to be delivered, he noticed someone's arm and then the right side of his face was sprayed, so that his right eye became totally blinded and his left eye partially blinded. The other person said to the driver "throw me the keys" and then raised his arm, apparently to spray the driver's face again. 6 The driver started running and was chased by the other person. The driver pulled the keys to the van out of his pocket and threw them down behind him. The other person picked up the keys, got into the van and drove the van away. Another vehicle, a landcruiser, was also driven away, following the van. The driver immediately telephoned his employer and reported the robbery and the employer notified the police. 7 The driver gave evidence at the trial that he noticed that the other person was wearing a cap and dark glasses, that he was in his twenties; of slim build, and about 5 foot 6 or 5 foot 7 inches tall, that he had four days growth of beard and an olive complexion and that he seemed to be of Lebanese appearance. 8 The driver was later shown videos by the police, which contained pictures of a number of men including the appellant but the driver was unable to identify the appellant or anyone else as the robber. 9 The stolen van was equipped with a tracking device, which was activated at 7.37 am on 12 March 1998. According to the data supplied by the tracking device, the van remained stationary for 14 minutes and it could be inferred that during this period the cigarettes were unloaded from the van. The van then commenced to travel towards Tempe railway station. 10 Police officers gave evidence at the trial that, on the basis of information conveyed by the police radio from 7.50 am onwards, they drove in the direction of a carpark near Tempe railway station. They observed the van which had been stolen in the carpark at the railway station. An unshaven, dark skinned male wearing a baseball cap was sitting in the driver's seat of the van. There was no dispute at the trial that this was the appellant. As the police approached, the van started moving but ran into a garden bed in the carpark. The appellant was then arrested by police. The time of his arrest was reported by police radio as being 7.55 am. 11 The appellant was born in July 1973, so that in March 1998 he was in his mid twenties. The appellant is of slim build, of medium height and of Lebanese extraction. 12 When he was searched by police after being arrested, a spray device with its nozzle still wet was found in his pocket. A baseball cap and dark glasses were found in the van. When questioned by police, the appellant said that he had seen two men running from the van, and that he had gone over to the van "to have a look". He saw that the keys were still in the van. The appellant said that he had found the spray device in the van. 13 The appellant gave evidence at the trial and also called evidence. The appellant gave the following version of what had happened on 12 March 1998. On that day he had to pick up a part for a vehicle his wife owned and he had to take his wife, who was pregnant, to a prenatal appointment at a hospital. He had made arrangements with a friend to use the friend's car to carry out the two tasks. On the morning of 12 March he left home at about quarter to 7 and walked and jogged to the friend's place at Arncliffe, arriving there about 40 minutes later. However, his friend told him that he had lent his car to his girlfriend and the car was unavailable for the appellant. The appellant then decided to go on foot to Tempe railway station, so that he could catch a train home and organise another lift in time to get his wife to her appointment. 14 The appellant said that when he was close to Tempe railway station he heard the screech of a vehicle pulling up quickly and he saw two people of Mediterranean appearance jump out of the vehicle and run past him. The appellant was suspicious and approached the van. He saw an object on the driver's seat of a kind he had never seen before (the spray device) and put it in his pocket. The appellant denied having started the vehicle. He denied wearing a cap and said that the cap and sunglasses were in the vehicle when he entered it. 15 The appellant's wife gave evidence confirming that she had had a medical appointment that morning. The appellant's friend gave evidence that the appellant had come to his home that morning and that he had told the appellant that the appellant would not be able to have the friend's car. 16 In a letter of 21 December 1999 to the Registrar of the Court the appellant stated his grounds of appeal against conviction as being: