Regina v Kassoua [1999] NSWCCA 13

New South Wales Court of Criminal Appeal CITATION : Regina v Kassoua [1999] NSWCCA 13 revised - 13/08/99 FILE NUMBER(S) : CCA 60698/97 HEARING DATE(S) : 10 December 1998 JUDGMENT DATE : 5 March 1999

PARTIES : Regina v Alla Kassoua JUDGMENT OF : Grove J at 1; Levine J at 51; Dowd J at 52

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0080 LOWER COURT JUDICIAL OFFICER : Graham DCJ

COUNSEL : P. Byrne SC (Appellant) P. Berman (Crown) SOLICITORS : T.A. Murphy (Appellant) S.E. O'Connor (Crown) CATCHWORDS : Criminal Law & Procedure ; - Identification ; - Recognition; -Failed prior attempt at offence ; - Admissibility ACTS CITED : Crimes Act 1900 Evidence Act 1995 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60698/97

GROVE J LEVINE J DOWD J

Friday 5 March 1999 REGINA v ALLA KASSOUA

JUDGMENT 1 GROVE J : The appellant was convicted on counts of shooting with intent to murder (Crimes Act s 29) and robbery being armed with a dangerous weapon (Crimes Act s 97(1)) after a trial before Graham DCJ and a jury at Parramatta. He was sentenced for each offence to concurrent penal servitude for seven years divided into minimum and additional terms of four and three years respectively. 2 On the night of 10-11 June 1996 two men disguised in balaclavas held up the staff of a nightclub known as Lucky Lil's and escaped with cash of about $10,000. A member of staff chased the offenders as they left and a gun was discharged at him by, on the Crown case, an accomplice of the appellant. We were informed that no person has been identified or charged as such accomplice. 3 Five grounds of appeal were filed as follows: "1. The evidence of identification of the appellant by Steven Cloke and David Atalifo should not have been admitted in the trial proceedings. 2. The directions given by the learned trial judge on the evidence of identification were inadequate. 3. Evidence of statements said to have been made by the appellant to Detective Parsons should not have been admitted. 4. There is fresh evidence available from the proceedings of the Royal Commission into the New South Wales Police Service which is relevant to the assessment of the weight to be given to the evidence of Detective Parsons. 5. The verdicts of guilty of shoot at with intent to murder and guilty of armed robbery are unsafe and unsatisfactory." An additional ground to which I will later refer was argued at the hearing of the appeal. 4 The principal thrust of the appellant's argument was directed towards ground 1. Although described as identification evidence the material was also classifiable in a more discrete category namely recognition evidence. It was conceded by senior counsel for the appellant (who did not appear at trial) that the evidence was not technically inadmissible but he contended that it ought to have been excluded in the exercise of his Honour's discretion. 5 Lucky Lil's was a basement bar accessible by stairs leading down from the street. Although usual hours extended to 3 am, on the night in question and in the absence of customers the manager decided to close at midnight. Two staff Aaron McMillan and David Atalifo commenced to clean the bar whilst the manager Mr Cloke started counting the takings in an office. During this time no one else was observed in the premises. After conclusion of the cleaning Mr Cloke and Mr Atalifo commenced talking to each other in the office and during this time Mr McMillan departed. The conversation in the office was not interrupted by either of the men going to lock the door behind Mr McMillan. About five or ten minutes later on a video monitor they noticed someone crouching inside the front door and appearing to lock it. On another monitor they saw two men disguised in balaclavas heading down the stairs. Mr Atalifo attempted to slam the outer office door shut but an intruder forced it and sprayed something in his face. Although this caused his eyes to water he did not lose vision and he saw that the man was armed with a gun. The second man stood behind the armed intruder and said "give us your money". 6 Mr Atalifo recognized the voice of the appellant whom he knew as "Alla", a frequent customer of the bar to whom he had spoken on many occasions. 7 Both offenders entered the office and the armed man continued to menace. In the course of these events Mr Atalifo said "don't do it Alla, we know it is you". The appellant said "shut up Dave, or we'll shoot you". As noted, Mr Atalifo's first name was David. The appellant also said, presumably intending to address his accomplice "shoot them, shoot them". 8 Mr Cloke prepared to hand over the money box but Mr Atalifo intervened saying "don't give it, because it's only Alla". Mr Cloke responded by saying "don't be silly, just give it". 9 The appellant acquired the money and placed it in a bag and the two intruders decamped. Mr Atalifo chased them. Mr Cloke telephoned the police. He then watched the monitors upon which he saw the two men unlocking the door when Mr Atalifo came running around a corner whereupon the armed man turned, pointed the gun at him and fired. Mr Atalifo had apparently seen the action preparatory to discharge and successfully jumped back thus avoiding the line of fire. 10 Mr Cloke knew the appellant as a customer of the bar and even as disguised upon entry he thought (at least to the threshold of probability) that the appellant was one of the offenders (not the one carrying the gun). When the appellant spoke, Mr Cloke became certain of his identity. 11 The challenge argued in respect of ground 1 was that the evidence of recognition of the appellant given by Messrs Cloke and Atalifo should have been withdrawn from the jury on the broadly stated basis that by reason of its poor quality its probative value was outweighed by its prejudicial effect: Alexander v The Queen 1981 145 CLR 395; R v The Queen 1991 171 CLR 207; 1989 18 NSWLR 74; R v Tugaga 1994 74 A Crim R 190. 12 Evidence by two witnesses of actual recognition of an offender does not suggest poor quality but such was said to be derived from behaviour of the witnesses variously described by counsel for the appellant as remarkable, mysterious and inconceivable. That behaviour was said to be centred upon a continuing failure to tell police that they knew the offender and give his name. 13 Police responded promptly to Mr Cloke's telephone call. It was submitted that although both members of the bar staff most directly involved in the armed robbery claimed to have recognized the appellant as one of the robbers during the course of the commission of the robbery and also claimed to have actually spoken to him by that name whilst the robbery was in progress, neither nominated the appellant as one of the men responsible for the armed robbery when initially asked by the police to give a description of the offenders. 14 Concessions in cross examination relating to the non passing of the name by Mr Cloke and Mr Atalifo were referenced. However as Mr Berman of counsel for the Crown pointed out, the submission overlooked the evidence of Constable Rowe who, together with Senior Constable Baulkham, were the first uniformed police on the scene. His evidence included: "Q. Did you hear one of the employees say something as to the identity of someone? A. He did, I don't recall the exact words he used, but he mentioned that he knew one of the fellows who had held up the hotel. As they had a conversation, they called each other by their names and he recognized him as a regular. I don't recall the exact words he said but I do recall he said that, that he recognized him as a regular from the hotel." 15 These police were on the scene within minutes of the offences. Constable Rowe was affected by a burning sensation when he entered the office and the evidence of discharge of sprays by the intruders is congruent with this. In these moments there were arrivals of ambulance officers and further police including uniformed and detective branch personnel. It was for the jury to assess whether these circumstances were potential of confusion and whether any discrepancies in recollection and recounting of the details of events were significant. 16 The police response had been rapid enough to make an area observation for the offenders practical even if hot pursuit had been foreclosed. As the submission recognizes and the evidence shows, the potential witnesses were asked for descriptions. A name would have been of remote assistance to anyone in a position to undertake search and surveillance whereas description was capable of providing a meaningful target. Both Mr Cloke and Mr Atalifo supplied descriptions. 17 In determining that the evidence of recognition be admitted, the discretion of the learned trial judge did not miscarry. Indeed the evidence of Constable Rowe fortifies the correctness of his decision. 18 Whether expressed (as some submissions were) by incanting the often awkward terminology of the Evidence Act or in terms of miscarriage of discretion I would reject the contention that any error on his Honour's part has been shown. 19 For completeness I refer to argument concerning the circumstance that the security cameras at Lucky Lil's were equipped with video tapes. About ten minutes prior to the robbery the image of the appellant appears upon one of the tapes demonstrating conclusively that he was in the vicinity at that time. It was put to Mr Cloke and Mr Atalifo that they identified the appellant after being shown those tapes. That suggestion must, it was conceded have implied that those witnesses had fabricated the conversations in the office in which the names Alla and Dave were used. I am unable to discern anything other than a credibility issue rightly left for determination by the jury. 20 In written and oral submissions the appellant introduced a further ground of appeal asserting that evidence of a separate incident at the nightclub on 2 June 1996 should not have been admitted. 21 It emerged that various witnesses had seen the appellant on the night of 2 June leave the nightclub premises by the fire doors and leave them open. Thereafter he was seen to be attempting to enter the front door of the premises but it had been locked in the meantime and there was evidence that staff detected a following attempt to gain entry through the fire door by two men but it had also by that time been locked by the staff. 22 The intention to adduce this evidence had been foreshadowed and was the subject of a voir dire hearing and separate ruling by the trial judge. On the voir dire evidence his Honour ruled that the Crown could argue as available inferences that from that evidence the accused was manifesting the intention to participate in a robbery or similar attack on 2 June and that, in the light of that, was more likely to have committed the offence on 10 June in the sense that the evidence would assist in excluding any possibility of mistake in identification of the appellant as a perpetrator on the latter occasion. 23 As his Honour's judgment makes plain the matter was argued before him seeking exclusion pursuant to the broadly expressed discretions vested by ss 135 and 137 of the Evidence Act whereas on appeal this ground was sought to be argued on the basis that the evidence ought not to have been admitted "in accordance with the principles established in ss 97-101". Those provisions import special requirements where tendency or coincidence evidence is sought to be relied upon. This was not the evinced intention of the Crown at trial. The Crown suggested that the "successful" crime on 10 June was related to the actions on 2 June in the sense that the earlier activity was capable of being assessed as failed attempt at what was later achieved. Such evidence does not in my opinion specifically fall into the category of tendency or coincidence and is in the category pertinent to occasions where evidence of failed attempt has been admitted as part of the continuity of circumstances which led to a later completed crime: cf King v The Queen 1986 161 CLR 423; R v Kalazjich & Orrock 1989 39 A Crim R 415. 24 In charging the jury his Honour left the matter consistently with his ruling. Inter alia, he directed them that the evidence that the appellant had departed through the fire escape door was, if they were satisfied if that was what happened, significant in the sense that "the accused left in that fashion and that you would draw the inference that he was doing so in connection with the subsequent attempt to try and get into the premises". In summarizing the Crown allegation and its reliance upon this evidence he told the jury that the Crown relied upon the episode as "evidence that the accused had an intention as early as that Sunday night of taking part in a robbery at the premises". 25 Shortly thereafter he said in further summary: "The Crown says all of those aspects of the accused's conduct add up to one thing, and one thing only and that is a conclusion that he was acting that way because he was evidencing an intention on his part to participate in an armed robbery on that night. The plan was thwarted and the Crown says that intention continued through until the next week………." 26 A specific complaint is made that there was and could be no evidence supporting an intention to commit an armed robbery (as distinct from robbery) on that night. The complaint is valid. 27 After further reminding the jury of the evidence about the matter his Honour returned to the observation that it was the Crown case that this was evidence from which the jury was being invited to "draw the inference that he intended to take part in a robbery of the premises on that night but it was foiled". 28 No objection was specifically taken to the apparent slip when his Honour described the earlier activity as evincing an intention to commit an armed robbery. I am persuaded that no jury would have come to any different conclusion by reason of the use of that inaccurate expression on that one occasion in that context and that no substantial miscarriage of justice has occurred thereby. Although his Honour's use of the adjective on the one occasion was erroneous I would apply the proviso to s 6 (1) of the Criminal Appeal Act. 29 As to the first argument in support of the ground, it is dependent in effect upon a reclassification of evidence on the basis upon which it was debated and determined at trial. For obvious reason there was no explanation offered on behalf of the prosecution as to whether there should be any dispensation from the requirements of notice or the like when the issue had not been even raised. 30 The issue was fairly litigated between the parties and the jury were appropriately left to weigh the evidence in accordance with the manner in which it had been argued. I would not uphold this added ground. 31 The next ground challenged the adequacy of the directions on identification given by the trial judge. It was conceded by senior counsel that the directions actually given by his Honour were beyond criticism but he claimed that they did not reach the standard established by cases such as Domican v The Queen 1992 173 CLR 555 in the sense that it was contended that his Honour failed to put the weight of his judicial office into alerting the jury of weaknesses in the identification evidence. As already observed this was a case in a discrete category of recognition and it was for the jury to be satisfied beyond reasonable doubt that the evidence of recognition was correct. The evidence of recognition was the subject of attack not on the basis of mistake but on the basis that the witnesses were fabricating, possibly as a result of becoming convinced of the identity of the appellant by reason of having seen him on the security video. The submission was advanced in terms that "it was inherently unbelievable that on five separate occasions the appellant had been suspected of criminal conduct, knowingly suspected of criminal conduct, to the extent that police had interviewed witnesses but not once had any of them mentioned his name". This was said to be inherently unbelievable and if his Honour had not, in accordance with what was argued in respect of ground 1 been in error in withdrawing the evidence from the jury, he should have drawn this to attention as a weakness. As already mentioned there was a factual flaw in the submission in that the evidence of Constable Rowe contradicted its terms. 32 The submission that the situation was inherently unbelievable implied that there were not possible reasonable explanations for reticence of the witnesses in nominating or renominating an offender who is known to them. To the contrary, when it was put to Mr Atalifo that he "stood there mute" he responded by remarking that he knew (the appellant) and he never thought he would do something like that "especially to a friend". At another point of his lengthy evidence he explained that he thought at first it was (or might have been) a joke. Far from being inherently unbelievable other factors come to mind which may have led to the reticence. There may be sympathy for the anticipated fate of an acquaintance for doing something which was foolish as well as seriously criminal; there may have been hesitation to contemplate whether the offender might have some unfathomed explanation for his behaviour, there is even the extreme contemplation that the knowledge may be capable of being used by the witnesses against the offender in the future. I emphasize that there is not the slightest evidence of the lastmentioned but I mention these speculations merely to demonstrate the invalidity of the proposition that what occurred was "inherently" unbelievable. The assessment of conduct and behaviour by humans is a matter peculiarly suited to the joint judgment of twelve citizens constituting a jury. 33 Despite the relatively narrow compass of the central issue, the learned trial judge gave extensive precautions to the jury concerning identification evidence. He reminded them that it was possible that a tentative view or suspicion may have been converted into a certainty in the mind of one or other of the witnesses by events and he reminded them to assess the risks. He pointed out that the faces were disguised and spent a considerable time canvassing the evidence of the initial descriptions given by the witnesses and the significance of them. 34 I would uphold the Crown submission that the direction should be described as powerfully relevant and specifically directed to the dangers in the circumstances of recognition evidence and I agree that it is altogether unsurprising that counsel at trial did not seek further directions. 35 I would reject this ground. 36 The next ground seeks the rejection of evidence of a conversation between the appellant and Detective Parsons, the substance of which was related to a response attributed to the appellant concerning his knowledge of the robbery. Detective Parsons testified that the appellant said "I don't know". The appellant said that his response was more complete namely "I don't know what you're talking about". A second aspect raised in respect of the ground related to a visit to the casino by the appellant on 12 June with a friend whom it was claimed he identified as John. In fact he went to the casino with a man called Anthony Papaluca but he used a car to get there belonging to a man called John. 37 The response of the appellant "I don't know" was not put to the jury as amounting to any admission on his part. Counsel in the appeal argued that the evidence was likely to cause significant prejudice to the accused notwithstanding the Crown concession at trial that it was not an admission of any sort. In the light of the testimony of the appellant I consider it likely that a jury might have thought that the hearer of what the appellant said either did not receive, forgot or ignored the addition "What you're talking about". 38 As counsel proposed, it borders upon the absurd to say "I don't know" if asked whether one was involved in a robbery, but not so if the response is "I don't know what you're talking about". The appellant's version was indirectly supported by a police officer to whom he had spoken before Detective Parsons and that police officer testified that the appellant then asserted that he did not know what that officer was talking about. Be that as it may the evidence was not left to the jury as capable of inculpating the appellant as an admission and I am unable to attribute any real significance to these matters. I understand that they are ingredients which the appellant would seek to accumulate into assessment of the satisfactoriness of the verdict. 39 Another matter raised for the first time on appeal was the contention that the evidence of the conversations between the appellant and police (concerning the response "I don't know" and going to the casino with "John") should have been excluded pursuant to s424A of the Crimes Act. There was no objection at trial to this evidence being received. The issue of why a tape recording was not made pursuant to the statute at the time of the questions and answers was never pursued by anybody although there was cross examination as to why a record was not made in a notebook. It follows of course that the evidence was also entirely silent as to whether or not there might be dispensation from using a tape recorder pursuant to s424A(2)(b) or (c). Insofar as any discretionary issue might have arisen, his Honour was simply never asked to exercise it. 40 The Crown argued that the content of the conversations should not be classified as admissions in any event but the material was tendered in adverse interest to the appellant. The submission cannot be upheld particularly having regard to the liberal interpretation of the expression "admission" in the evidential context as manifest in cases such as R v Horton CCA unreported 2 November 1998 and R v Esposito CCA unreported 20 November 1998. However, in the light of the issues of this trial and the basis upon which the jury were instructed to approach this evidence there was no perceptible miscarriage and I would again apply the proviso to s 6(1) of the Criminal Appeal Act. 41 The next ground asserted that there was fresh evidence available from the proceedings of the Royal Commission into the New South Wales Police Service which was relevant to the assessment of the weight to be given to the evidence of Detective Sergeant Parsons. That ground was sought to be supported by extracts from the transcript of that Commission exhibited to the affidavit of David Philip Barrow sworn 6 August 1998. The substance of the material suggests that a former police officer gave evidence to the Royal Commission that the detective had received money from criminals involved in the distribution of drugs in the Kings Cross area and had involved himself in taking and receiving money in connection with police investigation into drug offenders. In written submission it was acknowledged on behalf of the appellant that there was material provided by the Police Integrity Commission disclosing that Detective Sergeant Parsons has denied being involved in any form of criminal activity or corruption including specifically that testified to by the former police officer. 42 This ground was not elaborated in oral submission. The test in relation to such material is whether there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before them. The onus lay upon the appellant to demonstrate the miscarriage of justice from that evidence. 43 The relevant testimony emanating from Detective Parsons has been discussed in relation to an earlier ground. As observed, his evidence concerning the response attributed to the appellant "I don't know" was not left to the jury on the basis that it could inculpate the appellant by way of admission and I have also already commented upon the appellant's version of the seemingly more credible response more fully "I don't know what you are talking about". 44 The other matter concerns the identity of the person with whom the appellant went to the casino. Examination of the transcript does not suggest that there was any issue at trial as to the credibility of Detective Parsons on this aspect except in the sense that he had got mixed up in that the appellant borrowed the car from "John" but in fact went to the casino with "Anthony". 45 This ground is not sustained. 46 The final ground was in terms that the verdicts were unsafe and unsatisfactory. Further use of this expression as a ground of appeal is precluded: Fleming v The Queen 1998 73 ALJR 1; R v Maxwell CCA unreported 23 December 1998. In relation to this ground the appellant relied principally upon submissions concerning the allegedly inherent improbabilities concerning the non disclosure of the name of the known offender by the Crown witnesses at early or appropriate opportunities and the accumulative effect of matters canvassed in respect of the other grounds. 47 I am far from persuaded that a reasonable jury ought to have a doubt about the guilt of the appellant. The critical issue was acceptance to the requisite standard of the evidence of recognition. There was substantial evidence that both the witnesses Mr Cloke and Mr Atalifo knew the appellant very well and, given that circumstance, the identification evidence would prima facie be very strong. It is unnecessary to delineate all the other matters which might fortify a conclusion that their evidence of identification and recognition should be accepted but it should not be overlooked that the appellant was in the vicinity as captured on the video monitor shortly before midnight; there was evidence that he had significant money on the day after the robbery at the casino and it was for the jury to assess whether his explanation and that of his family as to his possession of that money for the purchase of a vehicle was credible; and of course, if the jury were convinced of the truth of the content of the exchange at the time of the robbery the use of names (Alla and Dave) would add assurance to the correctness of a conclusion that the appellant had been recognized. 48 I am conscious that in respect of two matters technical legal error has been shown but I have concluded that no miscarriage has occurred and the proviso should be applied. Restraint is appropriate to that application but the two matters emerge after a "toothcombing" analysis of the trial record and both concern the periphery of the evidence and, as I have indicated, such errors could detract from the proposition that a jury acting upon admissible evidence only would have inevitably reached the same verdict. 49 No argument was addressed in relation to application for leave to appeal against sentence. 50 I would dismiss the appeal and confirm the convictions and sentences. 51 LEVINE J: I agree with Grove J 52 DOWD J: I have seen the reasons and proposed orders of Grove J. I agree with Grove J.