Reported Decision : 122 A Crim R 498 New South Wales Court of Criminal Appeal CITATION : Regina v Ali [2001] NSWCCA 218 FILE NUMBER(S) : CCA 60401/00 HEARING DATE(S) : 15th May 2001 JUDGMENT DATE : 15 May 2001 PARTIES : Regina v Abbas Mohammed Ali JUDGMENT OF : Giles JA at 1; Greg James J at 2; Badgery-Parker AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/66; 99/11/055 LOWER COURT JUDICIAL Woods J OFFICER : COUNSEL : C Maxwell QC- Crown S Odgers SC - Appellant SOLICITORS : CATCHWORDS : Criminal Law - fresh evidence - grounds to set aside convictions - identification evidence - risk of miscarriage of justice - new trial. LEGISLATION CITED : Evidence Act 1995 CASES CITED: Mickelberg v Queen (1988-89) 167 CLR 259 R v Stackelroth (CCA unreported, 3 April 1996) DECISION : Convictions quashed and new trial ordered. IN HE COURT OF CRIMINAL APPEAL 60401/00 GILES JA GREG JAMES J BADGERY-PARKER AJ Tuesday 15 May 2001 REGINA -V- ABBAS MOHAMED ALI JUDGMENT 1 GILES JA: We are of the opinion, without going further, there must be a new trial. We note what Mr Odgers said about ground three. However, we do not wish to express a concluded view on that matter or to ask for further submissions from the parties. I would ask Badgery-Parker AJ to give the first reasons. 2 BADGERY-PARKER AJ: The appellant, Abbas Mohamed Ali, and a co-accused, Koder Jamaa, stood trial in the District Court in Sydney in March 2000 upon the charge of armed robbery. The appellant was also charged with discharging a firearm in a dangerous manner. On 23 March 2000 the appellant was found guilty of both charges, while Mr Jamaa was found not guilty. 3 The critical issue at the trial was the identification of the perpetrators of the armed robbery, about the circumstances of which there was no dispute. The crimes took place in a shopping complex adjacent to the Novotel Hotel at Brighton-le-Sands. The two perpetrators waited in the shopping arcade until two employees of the hotel, Mr Paul Rayner and Mr Peter Donovan, walked from the hotel into the arcade. One of them was carrying a black bag. They were going to the bank to collect money. The perpetrators evidently believed they were carrying money to the bank and they confronted the two men in the arcade near the bank entrance. One of them produced a firearm and said, "This is a stick up, drop the bag." Mr Rayner complied. The man who was not armed punched Mr Rayner to the right-hand side of the face, knocking him to the ground. The armed offender pointed the gun in the direction of Mr Donovan, who was still standing, and discharged it. It missed Mr Donovan and fortunately did not cause injury to any of the other people in the vicinity. The two robbers fled with the bag into Bay Street. 4 Briefly, the identification evidence was as follows. Mr Rayner was shown a set of photographs and picked out a photograph of the appellant. Mr Donovan was shown photographs and picked out two, as to which he said he believed one was a picture of the gunman, although he could not say which of the two. One was a photograph of the appellant, the other was not, but he expressed himself "more sure" about that other photograph. A witness who gave evidence under the pseudonym David White testified that he saw the two robbers running from the scene and he recognised one as the appellant, a person he had seen "quite a few times" over a period of seven or eight years, though he had never spoken to him nor heard him speak. Other persons who had witnessed the robbery were shown photographs of the appellant but did not identify him. Indeed, one witness, an off-duty police officer, saw the robber running near the bank. She selected a photo which she was sure was a photo of one of the robbers. It was a photograph of a person who was not either of the accused. 5 The identification evidence was quite cogent and certainly such as could satisfy the jury that the appellant was indeed the armed robber and a submission that the conviction was unsafe could not be sustained. However, the risk of miscarriage of justice where convictions are based upon identification evidence only is well-known, for which reason the common law and the Evidence Act 1995 both require that a jury be warned of the risk. 6 In this case the appellant seeks to challenge the adequacy of the directions given by the Judge with regard to the identification evidence. There is, however, another ground of appeal which it is convenient to consider first. The appellant sought to adduce upon the hearing of the appeal fresh evidence; namely, the evidence of one Michael Erdogan. The evidence was extremely relevant. It was not available to the appellant at the time of the trial, nor with reasonable diligence could it have been available. Accordingly, this court ruled the evidence should be admitted, subject to the witness being available for cross-examination. 7 In an affidavit sworn 16 March 2001, the witness said he was introduced to the accused in about 1995 by a mutual friend. He was not himself a close friend of the appellant but would see him socially amongst a group of people from time to time. He estimated the frequency in the earlier years as once or twice a month and between late 1998 and late 1999 rather less frequently. He said: "However all in all I would have met him 40 to 50 times and would have no difficulty in recognising him when I saw him." In evidence here in the course of cross-examination he said he was not really a friend of the appellant. He had spoken to him on perhaps five or ten occasions and, as he said in his affidavit, had seen him forty or fifty times when they just said hello. 8 Mr Erdogan is the general manager of a chain of retail fashion outlets and one of the group's stores is located in the shopping plaza in the Novotel complex. Mr Erdogan was present at that location at the time of the robbery. He came upstairs to the level upon which his shop is located, next door to the Westpac Bank and opposite the food court. He said that as he came up the stairs he noticed two men sitting at a table immediately adjacent to the stairs. There was nothing distinctive about them. He was aware of them being present over the next hour or so. He said: "During the approximate last 20 minutes prior to the robbery occurring, there was only the smaller man seated" at the table. That man was facing towards the witness. He observed the robbery. The two men who had been sitting at the table were the perpetrators. The smaller of the two, who had remained at the table throughout, was the man who was carrying the firearm. He was not able to identify either of the people involved, but was able to say with certainty that neither of them was the appellant. In his oral evidence today he said his observations were made from not only inside the shop but that in the course of his arranging window visuals and the like he moved outside the shop from time to time to a distance fifteen to twenty metres away from the shop front and so from time to time observed the two men at the table over a period from different points of view. He gave an explanation as to why he had not spoken to the police about what had occurred at the time, which it is not necessary to repeat. He said he did not know the appellant had been accused of the robbery until the middle of the year 2000, when he heard that the appellant was in prison. Towards the end of that year he asked a mutual friend why the appellant was in prison and was then told it was "for the robbery of the Westpac next to your shop in Brighton." He told his friend that he had been there and had seen the robbers, and that the appellant was not one of them, and some time later he was contacted by solicitors acting for the appellant and he agreed to give evidence. The essence of his evidence is not that he admitted or claimed to be able to identify the perpetrators but that having the perpetrators intermittently in his view in the circumstances I have described, it never occurred to him that the appellant, who he was in a position to identify, was one of them. The account given by the witness in his affidavit read convincingly. In this court today he was cross-examined by an experienced Senior Crown Prosecutor. It is sufficient to say the cross-examination was not successful in destroying the witness' credibility, although there were features of his evidence from which the Crown might derive some comfort before a jury. The principles applicable to this court in setting aside a conviction on the ground of fresh evidence were concisely stated in the joint judgment of Toohey and Gaudron JJ in Michelberg v. The Queen (1988-1989) 167 CLR 259 at 301: "The underlying rationale for a Court of Criminal Appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice ... There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available ... There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be 'credible', 'cogent', 'relevant', 'plausible' ... In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ...or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the accused' ... If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the Court should think it likely that a reasonable jury would be believe it ..." 9 With respect, it seems to me there is "a practical difference" between the two formulations - the difference between likelihood and a significant possibility. The latter formulation poses a less stringent test. In Regina v Stakeloth (NSW CCA unreported, 3 April 1996) Gleeson CJ (with whom Dowd and Hidden JJ agreed), referred to Michelberg and allowed a new trial on the basis of fresh evidence, because there was a "significant possibility" that, had the fresh evidence been before the trial court, "the jury would have acquitted the appellant". That is to say, in that case the court adopted what I have referred to as the less stringent test. In this case it does not matter. I am clearly of the view that the fresh evidence on which the appellant seeks to rely meets the more stringent test. I am satisfied that it is evidence such that a jury could accept it, and it is evidence which, taken with the identification evidence led at the trial, is such that the jury, properly instructed and warned of the dangers which attend the use of identification evidence, would be likely to have entertained reasonable doubt. For those reasons I am of the view that on the basis of the fresh evidence the court should quash the conviction and send the matter back for a new trial. 10 In the circumstances, there is no need to consider the other grounds of appeal. I would only say that ground three, which challenges the adequacy of the directions and warnings given by the trial Judge, does not on the face of it, and without hearing at this stage argument but paying attention to the written submissions lodged by both parties, appear to afford a reason why this court should have intervened. In only one respect does it appear to me that his Honour should perhaps have done more; namely, having on a couple of occasions recalled to the jury the Crown's submission that because there were two witnesses who identified the appellant the possibility of error was remote. His Honour should, in my view, have been at some pains to emphasise to the jury that it is always possible that each of two or more identification witnesses may be in error for similar reasons. I propose that the orders of the court be that the conviction is quashed and a new trial ordered. GILES JA: I agree. GREG JAMES J: I also agree. GILES JA: The formal orders are that the convictions are quashed and that there be a new trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.