REGINA v SALTAN [2002] NSWCCA 423

New South Wales Court of Criminal Appeal

CITATION : REGINA v SALTAN [2002] NSWCCA 423 FILE NUMBER(S) : CCA 60453/01 HEARING DATE(S) : 30 September 2002 JUDGMENT DATE : 30 September 2002

PARTIES : Regina Ahmet Saltan JUDGMENT OF : Spigelman CJ at 1; Howie J at 35; Smart AJ at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0983 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : A Martin - Appellant PJP Power - Crown SOLICITORS : Galloways - Appellant SE O'Connor - Crown CATCHWORDS : CRIMINAL LAW - Evidence - Unreliable evidence - directions by trial judge - use of word "accomplice" - whether desirable - Evidence Act 1995, s 165 - CRIMINAL LAW - unsafe and unsatisfactory verdict - where sworn evidence of alleged accomplices resiled from earlier statements inculpating accused. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 CASES CITED: R v Stewart (2001) 52 NSWLR 301 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60453/01

SPIGELMAN CJ HOWIE J SMART AJ

Monday 30 September 2002 REGINA v Ahmet SALTAN Judgment 1 SPIGELMAN CJ: On 21 March 2001, the Appellant was convicted of one charge of larceny of a motor vehicle, contrary to s154A(1)(b) and s117 of the Crimes Act 1900 and of a second charge of robbery with corporal violence and wounding, contrary to s96 of the Crimes Act 1900. 2 On 25 November 1997, a robbery occurred at the "Cash in a Flash" pawnbrokers on Parramatta Road, Leichhardt. Three men were present in the shop during the course of the robbery, Christian Somba, Haykel Karaman and Manunu Treiblmayr. During the course of the robbery, there was a struggle between the two owners of the pawn broking business and the robbers. During the course of the struggle, Karaman wounded both owners with a knife. One owner received a large gash to the neck and the left side of his face which required 24 stitches. His brother received a cut to the head which required stitches. 3 During the course of the robbery, the Appellant remained in the stolen car near the shops. After the robbery Somba, Karaman and Treiblmayr returned to the car which drove off at considerable speed and through a red light. Subsequently, the car was abandoned. All four occupants caught a bus and were arrested on the bus. 4 The Crown case against the Appellant was that there had been a joint criminal enterprise amongst the four persons to rob the store at knifepoint and that each person had carried out the particular role assigned to him. The Crown case was that the Appellant was the instigator and organiser of the robbery and in fact suggested the place to be robbed and had given the knife to Karaman, who subsequently used it to wound the two owners. The Crown case was that the Appellant waited in the car while his three associates carried out the robbery, that he was seated in the driver's seat and that it was he who drove the car away at considerable speed and through a red light. On the Crown case, the Appellant couldn't enter the store because he was known to the owners. 5 The Appellant gave evidence at the trial. On the basis of his evidence, the defence case was that the Appellant's presence was entirely innocent. He knew one of the three other persons and accepted a lift into the city. During the course of the trip, Treiblmayr mentioned that he had a watch that he was interested in selling. The Appellant said that he knew of the pawnbroker "Cash in a Flash" and that he had been there a few times to obtain loans for goods. Somba, Karaman and Treiblmayr went into the shop. A few moments later, however, they returned to the car in a state of some agitation, according to the Appellant's evidence. His evidence was that he thought he saw some blood. He asserted that at all times he was in the back seat of the car and never drove the car. He said that after the car had been driven off he demanded to be let out and got out and walked towards a park. However, he then saw the other three again after he had almost reached a bus stop. At that point all four got on the same bus. He claimed that he was unaware at all times that the car was stolen. He said that he was not involved in the robbery. 6 Both Karaman and Treiblmayr made statements to the police, including records of interview, incriminating the Appellant. When they were called to give evidence, however, they failed to give evidence in accordance with the statements they had made. They both gave evidence exculpating the Appellant. Leave was sought and given to cross-examine them as hostile witnesses, pursuant to s38 of the Evidence Act 1995 and their original statements by way of record of interview were tendered in the proceedings. 7 The Crown relied on a number of surrounding circumstances, including the following: