New South Wales Court of Criminal Appeal CITATION : Regina v Emad Sleiman [2003] NSWCCA 231 HEARING DATE(S) : 6/11/02;2/12/02;17/2/03;18/2/03;19/2/03 JUDGMENT DATE : 21 August 2003 JUDGMENT OF : Sully J at 1; Dunford J at 91; Kirby J at 92 DECISION : Appeal against conviction dismissed. LEGISLATION CITED : Evidence Act 1995 (NSW) Mickelberg v The Queen (1989) 167 CLR 259 at 273 R v PLV (2001) 123 A Crim R 194 R v Bikic [2002] NSWCCA 227 Gilbert v The Queen [2000] CLR 414 McClean v Commonwealth of Australia, unreported, 27 June 1996 CASES CITED : Regina v M [2002] NSWCCA 66 Ratten v The Queen (1974) 131 CLR 510 Lawless v The Queen (1979) 142 CLR 659 Gallagher v The Queen (1985) 160 CLR 392 R v William Woodcock (1789) 1 Leach 500; 168 ER 352 R v Salama [1999] NSWCCA 105 R v Rose (2002) 55 NSWLR 701 PARTIES : Regina Emad Sleiman FILE NUMBER(S) : CCA 60505/99 COUNSEL : P. G. Ingram - Crown P. Kintominas - Appellant SOLICITORS : S. E. O'Connor - Crown Kekatos Lawyers - Appellant LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70216/98 FILE NUMBER(S) : LOWER COURT Sperling J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60505/99 SULLY J DUNFORD J KIRBY J Thursday 21 August 2003 REGINA v EMAD SLEIMAN Judgment 1 SULLY J: Introduction Between March and May 1999 the appellant, Emad Sleiman; his nephew, Hassan Kalache; and his then partner Leanne Cassar, stood trial before Sperling J and a jury. The two men were charged with having murdered one Jason Burton. Miss Cassar was charged with having been an accessory after the fact to that killing. The murder was alleged to have taken place at Parramatta on 18 May 1997. 2 At the conclusion of the Crown case, Sperling J directed the acquittal of Mr. Kalache. The joint trial of the appellant and Miss Cassar continued to verdict. The jury found each of them guilty as charged. 3 The appellant was subsequently convicted and sentenced to a substantial term of imprisonment. He now appeals against that conviction. He does not apply for leave to appeal against sentence. The Crown Case at Trial 4 Shortly after 4.00 a.m on Sunday, 18 May 1997, Jason Burton was stabbed fatally. The stabbing took place outside the General Bourke Hotel at Parramatta. The essence of the Crown case at trial was that the fatal wounds had been inflicted by the appellant, and with intent either to kill or to inflict grievous bodily harm. 5 Fundamental to the Crown case was evidence given at trial by Mr. Adam Stacey who had been employed, at the relevant time, as security manager at the General Bourke Hotel. The written summary of trial lodged by the Crown in connection with the present appeal contains a convenient and comprehensive survey of the evidence given by Mr. Stacey. That evidence is significant in connection with two in particular of the grounds of appeal; and it provides the essential factual background of all of the grounds of appeal. It is, therefore, expedient to reproduce the summary, which is: " Adam Stacey was the security manager at the General Bourke Hotel and came to know the regular patrons. He gave evidence of the Appellant arriving at the hotel at around 11 pm with Kalache, Ibrahim and several of his friends as well as Leanne Cassar and another female friend. He knew the deceased as a regular patron and recalled him arriving with Craig Budd at around 11.30 pm. He said that during the evening the deceased approached him at the front door and told him that he had an altercation in the toilets of the nightclub in the disco area. He had been "hassled out" by a couple of guys who he pointed out to Mr. Stacey. Mr. Stacey noticed Yassar, Younan, the Appellant, Kalache, Ibrahim and Cassar in the group the deceased pointed to. A couple of hours later Mr. Stacey was standing at the top of the stairs and turned to witness Brick Bolan being hit in the face by Michael Ibrahim. Mr. Stacey came between the two people involved and pulled them apart. He asked Mr. Bolan to come out to the front area with him. He brought Mr. Bolan to the beer garden area near the front door entrance. Mr. Stacey said that he was standing in the beer garden with his back towards the bar and facing towards the taxi rank area and the outskirts of the nightclub. Mr. Bolan was sitting facing toward the bar area. Mr. Stacey was looking to his left when he saw the deceased leaving the club with the group. Kalache was alongside him. The Appellant, Yassar, Younan, Michael Ibrahim, Michael Ibrahim's cousin and a couple of other guys were in the group that left with the deceased. He saw the group walking down to the grassed area near the taxi area. Mr. Stacey watched the deceased walking down towards the tree area with Kalache. He noticed the deceased walk ahead and turn back looking towards the club. He noticed Kalache push the deceased. The deceased was facing Mr. Stacey and the nightclub. Kalache was facing away from him towards the trees. The Appellant was to Kalache's right. Younan, Yassaar, Ibrahim and the other guys were all on the grass area within about ten feet.Then the Appellant came across from Kalache's right and lunged forward at the deceased and hit him in the chest. The Appellant was standing in front of the deceased and slightly to his left when he lunged at the deceased. Mr. Stacey indicated that the Appellant hit the deceased with two jabbing type motions. He then saw the deceased run back towards the nightclub. He saw Kalache and the Appellant start running off to the right towards the carpark and he saw Kalache pick up a knife off the ground on the grass area. In examination-in-chief Mr. Stacey said that this was the first time he saw the knife. However, in cross-examination Mr. Stacey said that he in fact first observed the knife when the Appellant turned toward him after he had lunged at the deceased. He observed a large silver bladed knife in the hand of the Appellant. He had told the police this in his statement of 20 December 1997." Mr. Stacey saw the deceased come back into the hotel where he was helped by staff into the foyer area. Mr. Stacey came in contact with the deceased when he arrived at the bottom of the stairs and he brought him over to the seat area in the entrance foyer. He noticed blood coming from a hole in his stomach. He sat him down and the deceased said to him, "I'm going to die Ad, I'm going to die". Mr. Stacey said "Don't be silly, you're not going to die. Don't be silly man.". Mr. Stacey continued to comfort the deceased and he said "Do you know who did this to you?". The deceased replied, "That wog cunt Kalache". The deceased's eyes started rolling back and he started losing consciousness, he felt he had no or a very weak pulse. He lifted up his shirt further and that's when he noticed he had another wound. He started giving him mouth to mouth resuscitation. The police arrived when he was still giving CPR and the ambulance arrived after that. Mr. Stacey was shown a video of still photographs in December 1997 from which he identified the Appellant as the person who stabbed the deceased. He was shown the hotel security video from which he identified the various persons he saw that night including the Appellant. Mr. Stacey described the Appellant as having short hair with a rat's tail several inches long at the back of his hair. He described the Appellant to police as being of Lebanese appearance; about 18 years old, five foot nine; thin build; olive complexion; short black hair with a long rat's tail; string of hair trailing down from the back of his head; makings of a moustache and wearing a Jag Man T-shirt and black jeans. Mr. Stacey said that he did not tell the police that he saw the deceased being stabbed on 18 May because he feared for his life and that of his family. Younan and Ibrahim had come back into the nightclub and were standing around as the deceased was taken out of the hotel. Ibrahim looked at him in such a way that frightened him. He was fearful of the Ibrahim family because they had a reputation for being aggressive. In re-examination Mr. Stacey gave an explanation for his delay in telling the police the true account of his observation on 18 May until 20 December 1997. He said that he feared for his life and that of his family. He gave evidence of a number of incidents that occurred immediately after 18 May which made him feel threatened. Mr. Stacey said that when he finished work at 1 am on 19.5.97 he was followed in his vehicle by another vehicle which was occupied by four men of Lebanese appearance. The vehicle followed him for a considerable distance, tail-gating him and chasing at high speeds. He only managed to lose the vehicle by going the wrong way up several one way streets. The following afternoon when he was getting out of his car in the car park at the General Bourke Hotel he was approached by a large Lebanese man. He asked him what he knew about the murder, he told him that he knows who he is and who his family are. He told him that if he "don't keep my fucking mouth shut, I'm dead". He had a gun which he put towards Mr. Stacey's head. As he walked away Mr. Stacey reached into his car and a second large Lebanese man said, "Don't do anything foolish". Mr. Stacey said that within a week of the stabbing, a neighbour told him that she saw a large, European man with a moustache and billy goat beard knocking on the front door of his house. He asked the neighbour where Mr. Stacey was and when he would be home. Some other neighbours told him that they had seen a white car parked near his place for several hours. The car was occupied by men of Lebanese appearance. Mr. Stacey gave evidence of nuisance telephone calls to his home notwithstanding a change of silent number. A telephone call was also received at work several weeks later. He had not received nuisance calls prior to the stabbing. Mr. Stacey said he used to see a tow truck operated by the Kalache family parked outside and in the vicinity of the hotel all the time. He hadn't previously noticed the tow trucks parked there prior to the stabbing. Mr. Stacey gave evidence that as a result of these incidents he didn't feel safe any more. He moved to Parramatta so he would be close to work. He sold his car and took taxis. He changed jobs so that he was more internal security and not at the hotel door.(sic) His health was affected and he had to take medication for his high blood pressure. He spoke to Garry Buckley on 6 and 13.12.97. Mr. Stacey made a statement to police on 20.12.97 in which he told them everything that he knew as best he could. He decided that it was time he told the police exactly what happened because of the harassment and threats and the guilt of not coming forward." [transcript references have been omitted] 6 In addition to the direct eye-witness evidence of Mr. Stacey, the Crown led a circumstantial evidence case. It was constituted, speaking broadly, of: [1] A body of eye-witness evidence about an altercation which had occurred inside the hotel, and between the appellant and the deceased. This incident had occurred shortly prior to the fatal stabbing of the deceased. [2] A body of eye-witness evidence of events outside the hotel at about the time of the stabbing. This evidence did not entail a positive identification of the appellant as the assailant of the deceased, except for evidence given by a Mr. Paul Hammond. The Crown summary of trial contains the following overview of Mr. Hammond's evidence: "" Paul Hammond went to the General Bourke Hotel with some friends and he left by himself at about 4 am. He walked out the front entrance, walked down the footpath to the car park where he was stopped. He was in conversation with some people and looking up toward the eastern kerb of Anderson Street. There he observed two men standing opposite each other. He saw one of the men who was standing on the kerb lunge at the other man who was standing opposite him with his back to a vehicle. He described the blow as a punch with a closed fist that struck the chest area. There was just one blow. He saw that person drop to the ground in a sitting position. He then stood up and said something like, "I'm going to – I'll fix you, my mates will fix you for this.". He then ran up the grassy verge parallel to the pathway and appeared to go back inside the General Bourke Hotel. The incident lasted about thirty seconds to a minute. Mr. Hammond described the person who fell to the ground as being about 5' 8" in height, wearing jeans and a brown to fawn shirt which appeared to be chequered. He had short brown hair. He described the person who did the striking as having a slight build, with black hair cut fairly short on the sides but wavy on top. He thought he possibly had a goatee. He was wearing a white top with stripes on each sleeve. In cross-examination he said that the sleeves were long and the stripes were possibly red and blue. Mr. Hammond was shown the video of identification photographs in January 1998. Mr. Hammond thought that the photograph of the Appellant looked like the assailant. He also thought that the photograph of another man looked very similar to the assailant. Mr. Hammond was shown the video tape of him leaving the General Bourke Hotel. He said that the person behind him was in a hurry and that he went towards Anderson Street. He said that that person was the same person who was involved in the first altercation (the Appellant). Mr. Hammond remained speaking to the people for five to ten minutes when he started to move off. He was standing in the car park when he saw two males and a female move out of some bushes that used to be on the grassy patch alongside the footpath near Anderson Street. They were walking toward a vehicle. The driver of that vehicle turned and called to the person who was involved in the confrontation to get a move on. He was still standing in the same position as the time of the fight and looking a bit stunned. He got in the front passenger seat of the car. They were speaking to each other in English and Lebanese. He described the car as being a light silvery grey colour. He said it could have been a Mazda 323, a Laser type car or perhaps a Mitsubishi Colt. After those people left the scene he saw a second altercation between two different people. He heard someone yell out, "Why did you stab my friend?". That person was then punched in the head. The person who got punched said, "I don't want to fight you. I just want to know why your mate stabbed my friend". He said that the head doorman then grabbed the person who was hit." [transcript references have been omitted.] [3] A body of surveillance video material. This material showed the following sequence: 4.01.29 a.m. Mr. Bolan and Mr. Stacey moved towards the garden area of the Hotel. 4.02.21 a.m. The deceased and Hassan Kalache leave the Hotel. 4.02.49 a.m. The appellant and Mr. Hammond leave the Hotel. 4.03.04 a.m. . Mr. Irbrahim leaves the Hotel. 4.03.39 a.m. The deceased, obviously injured, re-enters the Hotel. 4.03.59 a.m. Miss Cassar leaves the Hotel. 4.07.16 a.m. Mr. Budd leaves the Hotel 4.09.23 a.m. Mr. Budd re-enters the Hotel. 4.09.43 a.m. Mr. Ibrahim re-enters the Hotel. [4] Evidence of a lie told by the appellant, and evidencing, so the Crown contended, consciousness of guilt. The lie was told by the appellant to Detective McNab on 8 January 1998, following his arrest. The appellant, declining to be interviewed electronically, said: "I didn't have anything to do with it nor did my missus. We weren't even there.". [5] Medical evidence of the nature and location of the stab wounds. There were two such wounds to the deceased's chest and abdomen. It would have required moderate force with a sharp knife in order to inflict such wounds. The wounds were consistent with their having been inflicted in fairly rapid succession with the deceased in, roughly, the one position. There was evidence of a number of bruises and abrasions, seemingly fresh, to the deceased's head and face. The deceased had, upon autopsy, a blood/alcohol reading of .208. There was no medical evidence of any other substance abuse. [6] Evidence respecting a Mitsubishi Colt hatch-back motor vehicle registered number MTD.281. This vehicle was bought by the appellant from one Joseph Rizk on 29 April 1997. On 17 December 1997 the appellant had a conversation with Mr. Rizk about this motor vehicle. Mr. Rizk told the appellant of a conversation which he had had with the investigating police in connection with the vehicle. The appellant said to Mr. Rizk: "How come you told them you gave me the car?" and "just tell them it was stolen" . This conversation was tape-recorded. On 19 May 1997 the vehicle was virtually destroyed by fire. [7] Evidence which the Crown asserted to be evidence of flight evidencing consciousness of guilt. The appellant and Miss Cassar went to Melbourne on 22 May 1997, using tickets purchased by Miss Cassar on 20 May 1997. Between 2 June 1997 and at least 21 July 1997 they lived in Melbourne, using for much of the time an assumed name. They subsequently returned to Sydney. [8] Evidence of lawfully intercepted telephone conversations to which the appellant was a party. The conversations took place in December 1997. On 4 December 1997 the appellant was recorded saying in a conversation with Leanne Cassar: "The night, the night I stabbed that bastard to death" . On 13 December 1997 the appellant was recorded as saying to Miss Cassar: "They'll find us guilty" . Miss Cassar says later in the same conversation: "You'll do two years more than me, whatever you get you get two years more than me" . The appellant is recorded as saying: "If they're coming here it's going to be life" . There was, also, evidence of a conversation, recorded lawfully by means of listening device, between the appellant and Miss Cassar in connection with the destruction of the Mitsubishi motor vehicle. The discussion touches upon the fact that the car had been found virtually destroyed by fire; and discusses the possibility of the police having been able to trace the car back to the appellant. There is, once again, some conversation about the prospect of prison and about the likely duration of any sentence of imprisonment. The appellant is recorded as saying to Miss Cassar: "I'll go and take the rap alright Leanne" and "I'll take the rap for you Leanne" . 7 No murder weapon has ever been recovered by the investigating police. The Directed Acquittal of Hassan Kalache 8 The direction was given by Sperling J on 7 May 1997. On 9 June 1997 his Honour published written reasons for the directed acquittal. It is sufficient for present purposes to quote paragraphs 8 through 13, which expose with complete clarity his Honour's process of reasoning: "8 The evidence at its highest – according to the Crown Prosecutor's submissions – was as follows: (a) Mr. Kalache arrived at the General Bourke Hotel with others, including Mr. Sleiman. (b) Mr. Kalache, with another member of the group, was directly involved in an altercation with the deceased in the toilets. (c) Mr. Kalache was present in the group when Mr. Sleiman became involved in an altercation with the deceased. (d) Mr. Kalache approached the deceased and induced the deceased to leave the hotel with him. (e) Mr. Kalache and the deceased were followed by other members of the group, including Mr. Sleiman. (f) Mr. Kalache and the deceased walked onto the grassed area in front of the hotel, followed by others in the group. (g) an incident then occurred which involved the deceased and others moving over an area on both sides of two trees located in the grassed area. (h) The deceased was, at some stage during the incident, pushed on the shoulder by Mr. Kalache, assaulted by one or more of the group (causing contusion and abrasion injuries to the face, head and hands), and was fatally stabbed in the chest and upper abdomen. (i) Shortly after the incident, the deceased was asked who did it. He replied that it was Mr. Kalache. This was not relied upon by the Crown as evidence that Mr. Kalache stabbed the deceased. (That concession by the Crown – if it be a concession – was rational, proper and appropriate. I do not believe the Crown had the alternative open to it as a practical matter.) The Crown relied on the deceased's statement as evidence that Mr. Kalache was present and participated in the assault on the deceased to a significant degree. (j) Immediately following the incident, Mr. Kalache picked up the knife which had fallen to the ground. (k) Mr. Sleiman and Mr. Kalache ran from the immediate scene. (l) Mr. Sleiman and Mr. Kalache (with another or others) entered Mr. Sleiman's motor vehicle, which was parked in the street nearby, and drove off. (m) When interviewed by the police, Mr. Kalache said, untruthfully, that he was not there at the time and did not know that Mr. Sleiman was there. 9. Counsel for Mr. Kalache submitted that there was no evidence of some of these factual matters. I assumed, without deciding that there was. 10. On those facts, there was no evidence of agreement (express or implied) between Mr. Kalache and any other or others to injure the deceased with the specific intent required to constitute murder or by an unlawful and dangerous act so as to constitute manslaughter. Therefore, there is no evidence of "straightforward joint criminal enterprise". 11. As to "common purpose", I assumed, without deciding, that there was evidence of agreement to commit a "foundational crime", namely assault. However, there was no evidence that Mr. Kalache contemplated, as a possible incidence in the execution of the enterprise to commit that crime, that the crime of murder or manslaughter might be committed by one or more of the group in the way that occurred or in any cognate manner. 12. There was no evidence that Mr. Kalache knew that anyone in the group had a knife. There was no evidence that Mr. Kalache would have contemplated that a knife might be produced and used. 13. Adopting the language used in Anderson and Morris (1966) 2 QB 110, 120, "one of (the adventurers) has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect". Adopting the language used in Duong, Lu Do & Tran (1992) 61 A Crim R 140, 148, "the use of the knife ….. was entirely outside the scope of what could be expected to occur …". 9 The effect of the directed acquittal is, of course, that Mr. Kalache cannot be re-charged with, and re-tried for, the murder of the late Mr. Burton. The Appellant's Case at Trial 10 The appellant did not give evidence. He did call, however, three witnesses. Two of these, Miss Cassar and Mr. Mahmoud Sleiman, were called as witnesses to the appellant's movements on 18 May 1997. 11 The remaining witness, a Mr. Morgan, was a neighbour of the appellant. He was called to give evidence of having notified the appellant, at some time prior to 31 December 1997, of having seen persons, whom he believed to be police officers, in the vicinity of the appellant's home. Mr. Morgan allegedly warned the appellant that either he was being watched by the police, or his home was being bugged. It was the appellant's case that, because of this notification, he was not likely to have been making incriminating statements of the kind alleged by the Crown. 12 The Crown's written summary of the trial provides the following overview of the evidence of Miss Cassar and of Mr. Mahmoud Sleiman: " Leanne Cassar gave evidence that she had been in a de facto relationship with he Appellant for approximately two years as at 18.5.97. She said that they became engaged on 11.12.96 and that they had undertaken an Islamic marriage ceremony. On the evening of 18.5.97 she attended the General Bourke Hotel at about 1.30 am with the Appellant, Hassan Kalache and Mahmoud Sleiman. Mahmoud Sleiman drove them there after they had been at Studebaker's nightclub. They met some people of Lebanese nationality in the hotel. She observed that the Appellant's demeanour was normal and that he showed no aggression toward anybody. She observed Michael Ibrahim have an argument with another man. She said that the Appellant left the hotel shortly before 4 am because he was going to see if Mahmoud Sleiman was outside. She understood that the Appellant had asked Mahmoud to pick them up prior to leaving the hotel. Shortly after the Appellant re-entered the hotel. He told her to hurry up because Mahmoud was waiting outside. She told him she would just finish here and he left again. She finished her conversation and went to collect her bag from the cloakroom. Miss Cassar saw a man who she now knew to be the deceased running up the stairs as she was leaving the hotel. He looked like he was either about to get involved in a fight or he had been involved in something. She walked to the grass verge in Anderson Street and saw the Appellant talking to someone. When he finished talking he told her that Mahmoud was giving them a lift home. They walked across the road together. Hassan Kalache and Mahmoud were at the car. They all got in the car and left with Mahmoud driving. The Appellant's demeanour was normal. Mahmoud Sleiman drove them to their flat at Merrylands. She described the car he drove as a small car that could have been a Laser. Ms Cassar gave evidence that she appeared at Goulburn Local Court on 23.4.97 on criminal charges when she received advice from a Legal Aid solicitor that there was a big chance that she was going to get a prison sentence. She said she was due to enter a plea in relation to that matter on 21.5.97. Although she went to Goulburn she did not attend court because she was scared of going to gaol. She returned home the following day and asked the Appellant whether he would leave New South Wales with her. She booked two bus tickets to Melbourne. She did this because she had failed to appear at Court and stopped reporting to police. She thought that there would be a warrant for her arrest and that the police would be looking for her. When they arrived in Melbourne they stayed with the appellant's uncle for about two weeks. She then leased premises at 759 Sydney Road, Coburg under a false name. Miss Cassar gave evidence that they returned to live in Sydney after she had made contact with police about her legal problems. They returned to live in the flat in Merrylands. At that time she heard street talk that Michael Ibrahim was saying things about the Appellant being involved in the murder of the deceased and she believed that he was trying to set him up Miss Cassar agreed that the voice on the conversations recorded by listening devices was hers. She gave explanations for any references to the murder as being consistent with her belief that the Appellant had nothing to do with the murder but that he was being set up for it. Miss Cassar said that she believed that the police were listening to their telephone conversations as of 4.12.97 because there were clicking noises and a lot of static on the telephone. She also gave evidence of a conversation she had with a neighbour, Mr. Morgan, which led her to believe that the police had 'bugged' the telephone. Miss Cassar said that both she and the Appellant were smoking heroin every night from 4 December up until Christmas. She said that where the Appellant's voice is recorded on the intercepted conversations he had been using drugs. Miss Cassar said that she could not recall whether the Appellant had a beard as at 18.5.97 but that he did not have a rat's tail at that time. She said that he had one but that he had it cut off three months earlier. He did not start re-growing it until they moved to Melbourne. Mahmoud Sleiman gave evidence that he was a distant cousin of the Appellant and that he had known the Appellant for about ten years. He said that on Saturday, 17 May 1997 he drove his 1989 model blue Ford Laser to the Appellant's place just after 8.30 pm. At about 9.45 pm he drove the Appellant, Leanne Cassar and Hassan Kalache to a nightclub at Parramatta where all four stayed until just after 12.30 am. They then went in his car to the General Bourke Hotel arriving there just after 1.30 am. He parked his car in Anderson Street in front of the Ramada Hotel. Mr. Sleiman said that he left to go home around 2.30 am because he felt sweaty and tired. He told the Appellant he was leaving and drove home alone. It took about fifteen minutes to drive home and he stayed there for about half an hour. He changed, had a shower and watched a bit of television before driving back to the hotel arriving there at about 3.30 a.m. He didn't park very far away from where he parked in Anderson Street the time before. He didn't go back into the hotel but waited for someone to come out who he knew. It took about ten or fifteen minutes before he found someone he knew. Five minutes later the Appellant came out. Mr. Sleiman told the Appellant to hurry up and that he wanted to go. He said that the Appellant said, "One minute, I'll go and get Hassan". A few minutes later Hassan Kalache came out and walked over to the car. A couple of minutes after the Appellant came out and then a few minutes after Leanne Cassar came out. Mr. Sleiman said that he left the hotel just before or just after 4 a.m. He had the Appellant, Hassan Kalache and Leanne Cassar in the car. He didn't see the Appellant with a knife at any stage during that evening. Nor did he see blood on the Appellant's clothing when he joined him from the hotel. He didn't see a scuffle or argument inside the hotel. Nor did he see a fight or anything to attract his attention when he was waiting in or about his car. They drove straight to the Appellant's house which took about ten or fifteen minutes. Mr. Sleiman said that he did not have anything alcoholic to drink at the nightclub or at the hotel that evening. Mr. Sleiman was cross-examined about his car. He said that he purchased the car from Cyril Mansour. He registered the car in his sister-in-law's name. He had the car for about four or five months and then he sold the vehicle to Anthony Younan. He had the car for about two months on 17 May 1997. Mr. Sleiman agreed that the police had asked him about a blue Ford Laser SLN 660 and he had told them that he had sold it to Anthony Younan and that Belinda McNeill owned the vehicle and he used it from time to time. Mr. Sleiman looked for the paperwork relating to the vehicle but was not able to locate it. He couldn't recall if the registration number of that vehicle was SLN 660 but that the number looked familiar. He denied that the Laser he gave evidence about could have been at The Entrance on 17 and 18 May 1997 as he had been driving it that night. He thought that the Appellant had a rat's tail hairstyle on 17 and 18 May 1997 but he wasn't sure. He never saw the Appellant with a small blue car and he had no knowledge of a Mitsubishi Colt." [transcript references have been omitted.] The Crown Case in Reply 13 The Crown called in reply a body of evidence of which it is sufficient to say here that, if accepted, the evidence proved that the motor vehicle said by Mr. Mahmoud Sleiman to have been driven by him on 17 and 18 May 1997 was not owned by him at that time; and could be located, moreover, at The Entrance throughout those two days. The Grounds of Appeal 14 As notified, and argued, these are: "1. His Honour misdirected the jury as to the dying declaration of the deceased. 2. The trial miscarried as a result of the admission of the evidence of Sgt. Garry Buckley. 3. His Honour erred in law in failing to leave manslaughter to the jury. 4. The conviction of the appellant is unsound having regard to the confession made since the trial by the co-accused Hassan Kalache to the murder; there being at least a significant possibility that the jury acting reasonably, had this evidence been before it, would have acquitted the appellant." 15 At the hearing of the appeal the focus of the submissions for the appellant was very much on Ground 4. It is, therefore, convenient to deal first with that ground. Ground 4: The Affidavit Evidence · Hassan Kalache: 10 October 2002 What is deposed in this affidavit is the foundation of Ground 4. The affidavit states: "1. On 18 May 1997 I stabbed Jason Burton twice with a knife to the abdomen outside the General Bourke Hotel. 2. Jason Burton died as a result of the injuries he sustained. 3. I was charged with the murder of Jason Burton and stood trial before his Honour Justice Sperling and a jury of 12 and at the conclusion of the prosecution evidence his Honour directed the jury to find me not guilty of the murder. 4. I have not been prepared in the past to give evidence about what occurred on the night of the murder but I have come to the decision that the truth should be told." It seems that an affidavit in this form was in fact sworn on 21 August 2002; but that it was re-sworn upon the advice of counsel and in order to correct some typographical errors. The economy of this affidavit is striking. Paragraph 4, in particular, contains statements that are especially delphic. The affidavit, standing alone, could not, in my opinion, reasonably carry the day for the appellant on Ground 4. No doubt it was a correct and sensible recognition by the appellant's legal advisers of this prospect that led to the calling of oral evidence from Mr. Kalache. That evidence will be considered in detail in the following section of this judgment. · Ross Hill: 17 February 2003 Mr. Hill was the appellant's solicitor at trial. His affidavit, too, is very much to the point. It deposes: "2. On either the day of the Verdict being handed to Hassan Kalache, the Co-Accused, or the day after, I was approached by Hassan Kalache outside the Supreme Court at Darlinghurst in the Carpark where he said to me words to the effect: He said: "Emad didn't do it." I said: "Well who did it then?" He said: "I can't tell you who did it, but I can tell you Emad didn't do it." I said: "If you know who did it you should tell me." He said: "All I can say is that Emad didn't do it." 3. I did not act on comments made by Hassan Kalache as I believed that he did not tell me anything that could assist me. I formed the opinion that he would not be of any assistance as a witness." Mr. Hill, too, gave oral evidence; and that evidence, also, will require detailed consideration later herein. · Jim Kekatos: 29 November 2002 Mr. Kekatos is the current solicitor for the appellant. Mr. Kekatos, according to this affidavit, first received instructions in about April 2000. The instructions came from a Mr. Fadi Sleiman, a brother of the appellant, and an established client of Mr. Kekatos. The appellant's file did not actually come into the hands of Mr. Kekatos until early August 2000. According to Mr. Kekatos, the present appeal made glacial progress until June 2002. The reason for that was, put very simply, that the appellant wished to pursue certain grounds of appeal which, in the professional judgment of his counsel, had no prospect of success; and which involved the making of some very serious allegations which could not be buttressed, in counsel's professional opinion, by credible evidence. On 6 June 2002 Mr. Kekatos, in response to a prior request from Mr. Fadi Sleiman, visited Hassan Kalalche at the latter's then place of detention. (The reason for that detention is significant for present purposes. I shall return presently to a discussion of it.) According to Mr. Kekatos, the following conversation took place: "24. On 6 June 2002 I visited Hassan Kalache at Silverwater Gaol. I had a conversation with him consisting of words in or to the effect: I said: "What do you want?" He said: "I want to give evidence on behalf of Emad." I said: "What do you want to say?" He said: "That I did the stabbing." I said: "Can you prepare a Statement for me setting out what happened?" He said: "No I cannot you prepare it and I will sign it." I said: "What do you want to say, can you give me a description of what happened?" He said: "I don't know, just that I stabbed him and I want to tell the truth about what happened." I said: "I will prepare it and get you to sign it." He said: "If I give the Statement, will I be charged for it?" I said: "I don't think so, you will need to get advice from your Solicitor." He said: "I better not get charged if I give the Statement." I said: "I don't think you will." As earlier herein noted, an affidavit was sworn originally by Hassan Kalache on 21 August 2002. As earlier herein noted, that affidavit was re-sworn on 10 October 2002. The relevant course of events on both of those occasions is narrated as follows by Mr. Kekatos: "On both occasions he said to me: "Will I be charged or get in trouble for now admitting to the murder?" I said: "No I do not think so but you should get your own advice." He said: "I hope not, I am relying upon what you say." The three affidavits thus far mentioned were the whole of the affidavit evidence tendered by the appellant. The Crown, too, tendered affidavit evidence. · Althea Houlton: 21 October 2002 Miss Houlton was the instructing solicitor for the Crown upon the trial of Hassan Kalache in February 2002 for the murder of one Wassim Chedade. This murder was a callous and brutal killing. Its incidents are described as follows in the remarks on sentence of the learned trial Judge, which remarks are annexed to the affidavit: "2. The facts are that early in the evening of Saturday 1 July 2000 the deceased, Wassim Chedade, was at home in the company of his mother, three brothers and a friend, Hassan Yassine, at Granville. During this time the deceased had received several phone calls from the offender, following which the deceased suggested to the others that they go out. At approximately 5.30 pm, the deceased left the house and travelled in the family car, with his two brothers Mohamed and Samir, who were fifteen and eighteen years of age respectively, and Yassine. 3. There was evidence presented in the trial that the offender and the deceased had known each other for many years, as they had grown up in the same area within the same cultural and ethnic group. They had been to school with each other and had often "hung around" in the same group. 4. The offender's evidence was that he had asked Wassim Chedade to pick him up earlier in the day. The deceased had in fact picked the offender up earlier that day at Yennora, where the offender had been with his brother, and brought him home. 5. The four young men headed to Mona Park at Auburn, from whence the offender had requested he be picked up. Samir Chedade drove the red Commodore sedan, the deceased sat in the front passenger seat, Mohamed Chedade sat behind the deceased, with Yassine behind the deceased (sic: ? driver). When they arrived at Mona Park there was no one present and, at the deceased's instruction, they drove off. Within a few minutes of doing so the deceased received a call on his mobile phone and he directed that they return to Mona Park. 6. When they arrived at Mona Park there were three men, the offender, Aimen Chami and Moustafa Abbas standing at the perimeter of the park, near the intersection of Mary Street and Chisolm Street. Samir Chedade parked the car in a parking bay on Mary Street adjacent to the park, whereupon the three men approached the car. Aimen Chami leant up against the perimeter fence of the park and thereafter took no part in the events which ensued. 7. The offender approached the passenger side of the car and said to the deceased: "Wassim, let's go for a walk." Initially the deceased was reluctant to get out of the car but after a short time he opened the door and stood up, whereupon Moustafa Abbas punched him in the face causing him to fall back into the car. Abbas punched the deceased again, and continued to punch the windows of the car, smashing the rear passenger window. He also kicked the panels of the car. 8. At this point the offender reached in the waist of his pants and pulled out a handgun, which he raised and pointed into the doorway of the car at an angle and commenced shooting at the deceased, discharging five bullets into the left side rear of the deceased's body. Samir Chedade drove off in haste as the offender continued to discharge rounds into, and in the direction of the car." Hassan Kalache was found guilty of murder. He was convicted, and was sentenced to imprisonment for 22 years, commencing on 13 July 2000 and concluding on 12 July 2022; with a non-parole period of 17 years commencing on 13 July 2000 and concluding on 12 July 2017. · Catherine Anne Williams: 30 October 2002 Miss Williams instructs the Crown in the present appeal. She attaches to her affidavit, and verifies, a detailed chronology of the present appeal proceedings. A copy of this chronology is annexed, as Annexure 'A', to this judgment. · Detective Sergeant Ian McNab: 4 November 2002 [1] Detective Sergeant McNab is the police officer-in-charge of the case of Mr. Burton's murder. This affidavit points to an interesting coincidence between the actions of the appellant following the murder of Mr. Burton; and to the actions of Hassan Kalache following the murder of Mr. Chedade. As previously noted herein, the appellant and Miss Cassar travelled to Melbourne very shortly after the killing of Mr. Burton. They stayed initially with an uncle of the appellant; and thereafter rented accommodation in a Melbourne suburb. The murder of Mr. Chedade occurred on 1 July 2000: that is to say, a little more than three years after the killing of Mr. Burton. According to his evidence given at his trial, Hassan Kalache, too, fled to Melbourne, obtaining refuge with his uncle at, successively, two houses owned by the uncle. · Detective Sergeant Ian McNab : 4 November 2002 [2] This affidavit explores two topics: first , a comparison of the prison visitor records of the appellant and of Hassan Kalache; and secondly , the detention of the appellant and of Hassan Kalache in the same prison. On the second of these topics, the relevant records show that from time to time the appellant and Hassan Kalache have been detained in the same prison. In particular, they were so detained at Goulburn between 5 July 2002 and 4 September 2002; and again between 30 September 2002 and 4 November 2002. Ground 4: The Oral Evidence 16 Four witnesses gave oral evidence as part of the appellant's case before this Court. They were: the appellant; Hassan Kalache; and the appellant's current and former solicitors, Mr. Kekatos and Mr. Hill, respectively. · The Appellant The appellant's evidence-in chief concerning the stabbing of Mr. Burton was brief. He said that he had walked out of the Hotel shortly after Mr. Burton had done so. He did not see the actual stabbing. He did not see, or in any way handle, a knife. He realised, shortly after the stabbing, that it had occurred. This realisation came from seeing Mr. Burton "run off" . The appellant gave the following brief account of why he had not urged Hassan Kalache to come forward at once and admit that he had been the true assailant: "Q. Did you, at any stage, tell your nephew Hassan that he should come forward and tell the truth? A. No. Q. Why not? A. Umm – when it first happened, when we had the trial because he beat it, and there was no need for him to do anything, he got out, he thought I would get out as well. Q. You say you thought you would get out? A. Yes, because I was not the one that done it, and he thought there was no way I would get found guilty, because I never done it. Q. Is this something he has told you? A. That is something – it has been a while, I cannot remember how many times I have spoken to him – I do not get to run into him much where I am." The appellant denied any concoction, or any opportunity for concoction, between himself and Hassan Kalache; and he explained, but in a way which need not be detailed here, his successive instructions to vacate successive fixtures of the hearing of the present appeal. The appellant was cross-examined in careful detail. It will be necessary to refer, presently, to some aspects of that cross-examination. Before doing that, it is useful to note some particular matters as to which the appellant might have been expected to give clear and credible evidence. The first such matter was the appellant's version, now, of what happened in the immediate lead-up to Mr. Burton's death. The second such matter was the appellant's version, now, of when he had first become aware that Hassan Kalache had done the fatal stabbing. The third such matter was the appellant's explanation of any delay between the time of his first becoming so aware, and the time of his first challenge, based upon that knowledge, to his own conviction for the murder of Mr. Burton. As to the first matter , the appellant gave a deal of evidence, but the most striking feature of it was, in my opinion, the appellant's clear and consistent denial that he had seen any stabbing of Mr. Burton. The following extracts from the appellant's cross-examination will give a fair overall picture of the substance of that evidence: "COUNSEL (INGRAM): Q. I would ask you to concentrate your mind back to the night that you were at the General Bourke Hotel, as you say you were. You went outside and you saw something happen outside, involving the man Mr. Burton? A. Yes. Q. Beginning from when you left the hotel, would you say, please, what it is that you saw involving whom, where, when and how it happened? SULLY J: Take it in stages. When you, yourself, walked out of the hotel were you alone or in company? A. I was alone. Q. Where was Kalache? A. He was in front of me with Jason. Q. How far in front? A. Oh, they walked out of the club and I was still inside and it would have been about 10 seconds later, or maybe a bit more, I walked out and -- Q. Where did you first go when you walked out? A. I walked out and I walked to the right towards the motel across the road. COUNSEL (INGRAM): Q. That is up towards Anderson Street, isn't it? A. I don't know. Q. Up towards the corner of the park? A. Yeah, next to the carpark as well, the little carpark. The club carpark. Q. Between the club carpark and the corner at which the two streets intersect on which corner the pub is located, as you have put it, is that correct? A. Yes. Q. And at the time that you went out through the doorway of the hotel on this occasion were you then able to see the two people, Kalache and Mr. Burton? A. Yeah, they were about 10, 15 metres away. Q. Where were they in relation to things in their immediate area? A. Um, under the trees where there used to be a couple of big trees but they cut them down after. Q. Where were you when you saw them in that position? A. I was still walking down. Q. Towards? A. Them. Q. And how far was it between you and them when you saw the, as you put it, between the trees? A. They was still walking down towards the trees further down, and when they got there I was about from here to the chairs away. Q. By "the chairs", do you mean those blue chairs? A. Yes, the blue chairs on the other side. Q. To your eye is that a distance of something to the order of perhaps 10 metres or thereabouts? A. Yeah, bit more, yeah. Q. Pardon? A. About that. COUNSEL: (KINTOMINAS) I think he said a "bit more" COUNSEL: (INGRAM) Do you think it was closer to about 12 metres, to your eye? A. Yes." ****** Q. How close were the people? A. Um, a couple of metres away. Q. When you say "a couple", do you mean two or three or do you mean more? A. No more than five metres. There was a lot of drunk people around. Q. Were any of those people that you have described in the last couple of answers, people who were in company with you? That is, part of any group of which you were a member there that night? A. No. Q. Were any of them part of a group of which the man Hassan Kalache was there, that night? A. The people that me and Hassan were with, that went to the club with was myself, Hassan, my then wife Leanne Cassar and my cousin and they were just leaving. Four of us. No other people went with us to that club that night. Q. My question was --- A. No-one was there. Q. Were any of the people --- A. None of them. Q. Were any of the people within the couple of metres you have described of Mr. Burton and Kalache, members of a group that Mr. Kalache was a part of, at that hotel --- A. No. Q. --- that night. Do you know a person by the name of Ibrahim? A. Yes, I do. Q. Was the man you are thinking of as Ibrahim at the club that night? A. Yes, he was. Q. What is his full name? A. Michael Ibrahim. Q. Was Mr. Michael Ibrahim a person who left the hotel at a time close to when you had left the hotel on the occasion you are now telling their Honours about? A. Yes. Q. Did he come to within a distance of those couple of metres near Mr. Burton and Mr. Kalache? A. I can't remember. Q. Is it the case that he may have, but you don't know? A. He may have. Q. What did you see happen between Mr. Burton and Mr. Kalache in the area between, you have said they are between the trees, am I correct or not? A. Yes, underneath the trees, between them. Q. What distance was it at the shortest that you were to them? Do you understand what I mean by that question? How close did you get to them? A. Oh, I'd say about within, I'd say within five metres. DUNFORD J: Q. No closer? A. No, no closer. COUNSEL (INGRAM): Q. Was there anyone closer to Mr. Burton and Mr. Kalache, than you? A. I can't remember much from that night because I was on drugs back then and we both were, me and Hassan and -- Q. So Mr. Kalache was on drugs this night too, was he? A. I'd assume he was. Q. Was there anybody closer to Kalache and Mr. Burton than you were? A. From what I can remember there was closer people than me. Q. Closer than five metres to them? A. Yeah. Q. Did any --- A. But these people weren't associated with anyone, they were just sitting back on cars with girls and just kicking butt. Q. They took no part, so far as you could see, in anything that was taking place between Mr. Burton and Mr. Kalache, is that what you mean by that answer? A. Yes. Q. What did you see happen, if anything, between Mr. Burton and Mr. Kalache? A. I seen a punch thrown. Q. Who threw it? A. Jason threw a punch. Jason Burton threw a punch. Q. Left or right hand? A. I can't remember. Q. Did it strike? A. I think it did because he had cuts on his hands. Q. Where did it strike? A. I can't remember. Q. Whom did it strike? A. Hassan. Q. That is Mr. Kalache? A. Yes. Q. What next happened after that? A. From what I can remember could have wrestled around a bit. Q. You say they could have wrestled around a bit? A. Yes, could have been wrestling around or throwing a punch. Q. Is that because you don't remember? A. Yes, because it was real dark. Q. You couldn't see what was really happening five metres away from you because it was so dark, is that what you are saying? A. Yes, I didn't think I couldn't see much. ******* COUNSEL (INGRAM): Q. Before you saw Mr. Burton throw the punch, did you see Mr. Kalache do anything to Mr. Burton? A. No, not from what I can remember. Q. Were you watching both of them at the time immediately before Mr. Burton threw the punch? A. I was walking behind them and they looked like they were talking. It happened real quick, everything happened real quick. Q. Is this the correct sequence; they are walking ahead of you towards the trees and you are walking some distance behind them? A. Yes. Q. You notice that they are apparently talking to one another as they approach the trees? A. This is when they were under the trees, already there, yeah. Walking slowly, sort of, when they got underneath them, underneath the trees. Q. During this time you are continuing to watch both Mr. Burton and Mr. Kalache? A. I was watching everyone around. Q. I was asking you, you were continuing to watch both Mr. Burton and Mr. Kalache, were you? A. I was watching everyone around there. Q. I will ask you another time. You were watching Mr. Burton and Mr. Kalache, were you? A. You can say that. Q. I'm asking you. A. Yeah Q. What does that mean? A. Yes. Q. And at the time you were watching them you saw, you say, Mr. Burton throw this punch? A. Yes. ******* "Q. After you saw the punch thrown by Mr. Burton, the two men Burton and Kalache began to wrestle with one another. Is that what you saw? A. Yes, something like that. Q. If it was not that, what was it? A. It was dark and looks like they were wrestling. Just grabbing each other. Q. Were they standing up? A. Yes. Q. What happened that you saw apart from wrestling? A. That is it. Q. How long did it go on for? A. I don't know. Q. Did you continue to watch? A. It happened real quick. There was nothing else to watch. I seen Jason ran up. Q. Where? A. Ran up to the club. Q. Where did you(sic: he) go so far as you could see? A. The club, inside the club Q. Did he go back in through the door which you had just left there? A. Yes, there was only one door. Q. Did you see anything happen between the man Kalache and Mr. Burton involving a knife? A. It was really dark. No. Q. Was this wrestling taking place against a motor car? A. Next to a car. Q. How far from the car? A. Maybe two metres, three metres." ****** "Q. It was so dark you did not see Mr. Kalache stab him afterwards in the chest? A. No I didn't because there is no lights at all. Since then they have taken down the trees and put lights there. There is no lights at all and the trees are really big huge and there is no light at all. The only light that would have come was from the motel from across the road. That is about 30 metres away." ****** "Q. What part or components of the body of Mr. Kalalche were you able to see while the wrestling was taking place? A. They just moved around. Q. What part of Mr. Kalache's body were you able to see when the wrestling was on? A. I cannot tell you. They were moving around. It may have been his front or his back. It happened real quick. Q. Did you see his right hand? A. His right hand? Q. Yes. A. I could have seen that. Q. Did you see him stab Mr. Burton? A. I never seen him stab him, like as I told you it happened real quick. Q. Was there anything about Mr. Burton moving ahead of you as they were approaching the trees that in any way suggested to you he had already by then suffered two stab wounds? Was there anything about the way Mr. Burton moving ahead of you that suggested he had already been stabbed twice to the chest? A. No. Q. He moved easily from what you could see? A. Yes. Q. He was not crawling on the ground or stumbling? A. No. Q. Did you see anything happen between the time he left Mr. Kalache between the trees and raced back to the hotel that suggested that he might have been stabbed in that time? A. When he was running back to the hotel. Q. On his way back? A. He had his hand on his chest. Q. That suggested he had already been stabbed given what you now know, is that right? A. Yes. Q. It must have been Mr. Kalache, mustn't it, is that a difficult question for you to answer? A. No it is not. Q. Please do so. A. I have answered it about five times. You asked the same thing. SULLY J: Just try the sixth time. A. Yes, it could have been him. Q. That was not the question. The question do you wish read? A. It could have been Q. On the version that you give, it must have been Mr. Kalache. That is the question put to you. But just tell us simply and clearly what your answer to that question is. A. I would say again it could have been. COUNSEL (INGRAM): Who else in the world could it have been? A. If I didn't see him stabbed, I didn't see a knife in the hand, right, I cannot say he stabbed him." ****** "Q. You were very concerned to distance yourself away from any trouble that had happened there that night involving anyone at all. A. I did not throw a punch at anyone nor have an altercation with anyone on that night. Q. From the time you saw Burton racing from the hotel and a short time later whenever that was, heard people say the words "He has been stabbed" or words that made it clear to you a person had been stabbed, from that moment on you wanted to make sure that you were not a part of any inquiries by the police in connection with that stabbing, didn't you? A. No. Q. Why not? A. Why not? Q. Yes. A. Why would I want to be part of the investigation? Q. Why not? Is the question too hard to answer? A. Because it is nothing to do with me. Q. Why did you not want to be part of it if you had no part in the stabbing itself? A. Why would I? Why would I? All right? If I had nothing to do. SULLY J: Perhaps because you had been there and seen it happen? A. I already said I never seen it happen. I never seen him put the knife in so there is no need, I did not want to be part of the investigation." 17 As to the second matter, the appellant's evidence was anything but precise. It seems to be his position that he knew very soon after the actual event that Mr. Burton had been stabbed; and that the source of that knowledge was an ensuing hubbub during which there were cries to the effect that Mr. Burton had been stabbed in the gardens outside the hotel. 18 As to the very important question of the timing of his knowledge, not only that there had been a stabbing, but also that Hassan Kalache had done it, the appellant's evidence ebbed and flowed around the precise point. Once again, some extracts from his evidence will give a fair overall picture: "DUNFORD J: I will ask a couple of questions and I will try and make it clear and simple. You told us earlier that it was only after Burton went back into the hotel that you became aware that he had been stabbed. Do you recall saying that? A. Yes. Q. Was that correct? A. Yes that was correct. Q. Well when was it that you first found out that it was Kalache that had stabbed him? A. I can't remember, it could have been back then. Q. How did you find out that it was Kalache that had stabbed him? A. He could have told me. Q. Kalache would have told you? A. Could have told me back then. SULLY J: Did he? A. I can't remember. It has been a long time. DUNFORD J: Did you travel home in the car after this incident with Kalache in the same car as Kalache? A. Yes I did. Q. Someone came to pick you up? A. Well Sleiman my cousin is the one that picked us up there. Q. He came and picked you up along with your wife and Mr. Kalache? A. Yes that is right. Q. On the way home in the car was there any talk about the stabbing? A. No. Q. None at all? A. No. Q. You knew that someone had been stabbed? A. Yes. Q. But you did not know at that stage he had died or was in the course of dying? A. I knew he died next day. Q. Did you know at the time you were travelling home in the car that he was at least in the course of dying? A. No. Q. But you were not concerned. You were not concerned whether he was in the course of dying. Were you wondering whether he was alive or dead? A. I never thought of it." ****** "COUNSEL: (INGRAM) Q. At the time you heard the words "He has been stabbed.", did you seriously believe that somebody other than Mr. Kalache had stabbed Mr. Burton? A. I did not know what I thought that night. Q. As sure as night follows day, it is absolutely certain you knew that at the time? A. I knew what? A. That he stabbed Mr. Burton, that is Mr. Kalache stabbed Burton? A. No I say. Q. You do not know that as a fact? A. Right there and then? Q. Yes. A. No I didn't Q. Why didn't you ask? A. Because it has nothing to do with me. Q. You were in the same car with him, correct? A. Yes. Q. You were leaving the scene? A. That is correct. Q. You were leaving the scene with him, correct? A. Yes. Q. Your wife is next to you or near you in the car, correct? A. Yes. Q. For all you know one of the people in the car has just stabbed a man to death? A. But maybe he did not want to tell me in front of the people in the car. Q. Within five metres of you, correct? A. Yes. Q. And yet you did not stay to ensure that whatever is said or done at those premises clears you of any involvement in the stabbing, did you? A. No. Had nothing to do with me." 19 As to the third matter, also, the appellant's evidence was imprecise. It was reasonably clear that the appellant's position was that he had first heard in about June/July 2002, and after Hassan Kalache's conviction and sentencing for the murder of Wassim Chedade, of Hassan Kalache's confessing affidavit: T 76 (50). What was not, and is not, clear is how he explains not having done anything for so very long a time in the matter of disclosing his awareness that Hassan Kalache was, in truth, the person who stabbed Mr. Burton to death; and that he, the appellant, was in no way whatsoever implicated in that crime. All attempts to bring the appellant to this point were met by vague generalities. For example: "Q. In the times, if he did, if he visited you after he was aquitted but before you were found guilty, did you ask him anything about whether he might be kind enough to give some evidence for you in your trial? A. Did I ask him? Q. Yes. A. I don't think so. Q. Why not? A. Why not? Q. Yes, why not? A. Um. Because I didn't think he'd do it and -- Q. You didn't know, did you? A. Yeah, I didn't know. Q. Because you didn't ask him? A. I didn't ask him, I didn't want to ask him. I could have asked him like, after that. Q. I'm not asking you about after that. I'm asking you about the time before you were convicted, why didn't you ask him? A. Before I was convicted? Q. Yes, before you were convicted and after he was acquitted, why didn't you ask him to give evidence for you? A. I'm trying to get this right. Are you asking me, is this before he walked? Before he walked out? Like, during the time when both of us were on trial? Q. I'll make it more clear for you, okay? After he walked out, picture yourself back there in relation to the court that day. Remember the day he walked out? A. Yes, I remember the day he walked out. Q. *I suppose you thought: Gee, there goes the guilty man out the door now, didn't you? A. I remember from that day my QC said to me, that could have been me, that's it. SULLY J: What is the answer to counsel's question? A. Can you say it again? QUESTION MARKED WITH AN * READ SULLY J: What is the answer to that question, please? A. I didn't really think of it that way. COUNSEL: (INGRAM) Q. Why not? A. Um, I never thought of it. I was still on trial. DUNFORD J: Did you think it was very unfair that he was walking while you were still on trial? A. Yes, I did. COUNSEL: (INGRAM) Q. What did you do about that? A. I didn't do nothing. Q. Why not? A. Um. Because I wasn't in a position to do so. Q. I beg your pardon? A. I wasn't in a position to do so. Q. Up until that time had you said to anybody, "I didn't do this. The man Hassan Kalache did this and I know that for a fact"? A. No. Q. Why not? A. Because I'd get in trouble. Q. I beg your pardon? A. I'd get in trouble. Q. Oh. From whom? A. There's a lot of people in gaol. If I talked or say something that's out of school in gaol, I might end up in trouble. Q. So you were afraid something might happen because you identified your nephew as the murderer, is that right? A. Yes, yes. Q. So you didn't tell a single living soul about that, is that right? A. Yep, I didn't tell no-one. Some people came up to me. Q. Were you afraid of your nephew at the time that he walked out the door of the court room in relation to this matter? A. Was I afraid of him? Q. Yes. A. I was never afraid of him, not him specifically. Q. Well, you must have been afraid of somebody else, were you? A. Other people. Q. Other people? A. You don't have to be related to them or even know them for something to happen if you talk. Q. So you're standing trial for murder in relation to a murder you didn't commit, is that correct? A. That is correct. Q. You see the man who you know as a fact did murder the unfortunate deceased, is that correct? A. That is correct. Q. You watch him walk out the door a free man, is that correct? A. That is correct. Q. And because of some prospect that someone might one day get to you in the way you described, you say nothing to anybody? A. I say nothing because -- Q. Is that right? A. Yes. Q. And then, quite by coincidence it would seem so far as you are concerned, two years or thereabouts later this same individual pops up and says, "Oh, by the way, I'd like to tell the truth now". Is that your understanding of what has been happening? A. I guess so. SULLY J: Don't guess, is that your understanding or not, of what has in fact happened? A. Yeah, from what I've been told and what I've heard from my counsel, yes. COUNSEL (INGRAM) Q. Because, of course, you had no idea that Mr. Kalache was going to step into the limelight at this late stage and provide you with a defence, did you? A. No, I didn't. Q. Because you had never even asked him to, had you? A. No, no, I don't think so, no. Q. Why not? A. Why not? Q. Yes, why not? A. I never thought of it because I was real close with him, I grew up with him and -- Q. Trusted him? A. Yeah, I trusted him. Q. Loved him? A. Yes. Q. Felt like he was a close member of your family? A. He is. Q. Still is? A. Yes. Q. You know that as a fact, don't you? A. Well, I haven't seen him for a while. I can't turn against my own family. Q. He did you, didn't he? A. He didn't turn against me. Q. He walked out of a court room knowing you were innocent, to face the music at the hands of a jury in relation to murder. Do you say he didn't do anything against you? A. Um, that was up to him. I couldn't tell him to say it was him, I couldn't tell him to say it wasn't him. COUNSEL (INGRAM): I didn't ask you whether you could tell him to. I have so far only asked you if you asked him if he would and so far you have repeatedly told their Honours that you didn't ask him? SULLY J: He said "I don't think so". I don't think so". COUNSEL (INGRAM): Q. Does that mean you asked him but you have now forgotten? A. No, I never asked him. Q. You never asked him? A. No. Q. During the course of the trial were you in cells beneath the court room? A. Today? Q. The trials involving the death of Mr. Burton? A. We were together, yes. Q. You knew as a fact that you didn't kill Mr. Burton? A. Yes. Q. And you watched day after day as witness after witness was called in the Crown case, didn't you? A. Yes. Q. And you saw the trial evidence being built up against you, didn't you? A. Yes. Q. And you saw that the Crown case was that you were the person who had the knife, didn't you? A. The Crown case, yes. Q. And you knew you didn't, didn't you? A. Yes. Q. Didn't you at some stage say to Mr. Kalache, your nephew, "Will you please do something to help me, because I didn't do this and you know I didn't do this". Did you ever do that? A. No, I didn't. Q. Why not? A. Because, I just didn't. SULLY J: But why didn't you, was the question. A. When I used to see my counsel all they had, all they ever told me was I would end up walking because the dying man's words, all Burton's last words were, "It was Kalache". I wasn't going to say anything because it might end up against me if I ended up in gaol, I don't end up walking, like I did now and I might end up in gaol, I always thought I'd end up going home in trial because of dying man's words, because of Jason Burton's last words. DUNFORD J: Did you tell your counsel, "I didn't do it, I saw Kalache do it"? A. No. My counsel asked me, because he asked me a couple of times, he told me, "Let me fight it on the dying man's words and you'll walk", and I refused. I refused a couple of times. Q. You refused what? A. To let him use the evidence of Jason Burton against Kalache, in court. Q. I'm sorry, say that again. You refused to let him -- A. He wanted to use that evidence against Kalache, the dying man's words, and he said, he promised me if he used it that I would walk. Q. But you sat through the trial and you saw that he did use it, didn't you? A. What was that? Q. You sat through the trial and you saw that he did use the dying man's words, didn't he? A. My QC? Q. Yes. He relied on that very strongly, didn't he? A. No. We weren't accusing him, in my case we were only accusing Kalache. Q. You know that your QC in the trial relied very strongly on the dying man's words, don't you? A. I don't know, no, because I've never looked at the brief. Q. You were there, you heard it. You heard it, didn't you? A. When they talk in court, when the counsel talks and that I don't understand what they say. Q. You heard him cross-examine Mr. Stacey about the dying man's words were "Kalache", didn't you? A. Yes, I did. Q. You heard him in his final address to the jury tell the jury about the dying man's words, "Kalache", didn't you? A. Yes. Q. So it is not true, is it? Is it correct to say that you refused to let your counsel use the dying man's words? A. He used them in the summing up, I think that is correct. I think he used them in the summing up, that was after Hassan Kalache went home. Q. Is it correct that you refused to let your counsel use the dying man's words? A. Yes, when Kalache was there. I even wrote it down on a piece of paper and I signed it. Q. But you say, do you, that you never told your barrister at any time that you didn't do it, you saw Kalache do it? A. No, I didn't. COUNSEL (INGRAM): Q. That was the most important piece of information you could have told anyone, wasn't it? A. Yes. Q. And you have waited until today, have you, to say those words to somebody? A. Um, I waited till he came out with it." 20 In the next section of my present reasons I shall discuss the conclusions to which I have come about the evidence of the appellant. · Hassan Kalache 21 As with the appellant, so also with Mr. Kalache, there were obvious matters to be explored. 22 The first was his version of the detail of the events surrounding the stabbing of Mr. Burton. 23 The second was his explanation of his having left his uncle to languish in prison for a period in the order of three years before coming forward to confess that he himself was the one and only guilty party. 24 The third, which was bound up with the second matter, was his knowledge that his own directed acquittal put him at once and for ever beyond the reach of further prosecution for the murder of Mr. Burton. 25 In his evidence-in-chief Mr. Kalache gave the following description of the lead-up to the stabbing of Mr. Burton: "Q. You tell the Court what you know and remember, taking it slowly, about what happened to Mr. Burton that night? A. Could you repeat that question? SULLY J: I think it would be better if you were to lead it in segments from the witness. COUNSEL (KINTOMINAS): Q. You are aware of the person I am talking about, Jason Burton? A. Yes. Q. Do you remember him in the hotel at any stage before he went outside? A. Yep. Q. Did you have anything to do with him in the hotel before he went outside? A. Yep. Q. Did you know him? A. Before then, no. Q. Do you know why he would know your name? A. I don't know why but we had an argument inside. Q. Do you remember what the argument was about? A. Not really. Q. Did that argument involve anything more than words? A. No. Q. Did anyone hit anyone? A. No. Q. Did you have one argument or more than one argument? A. No, just one. Q. Do you remember Mr. Burton going outside? A. Yep. Q. Did you go outside? A. Yep. Q. Was that on purpose that you went out, because he went out, or was it a coincidence? A. No, I asked him to come out. Q. You asked him? A. Yes. Q. Did you walk with him? A. Behind him. Q. Where did you walk to? A. Out the front of the hotel. Q. Do you recall that there were some trees in the hotel that evening which were not there later? A. No. Q. If I mentioned trees to you, that does not assist you at all? A. No. Q. How far away from the entrance did you walk? A. About eight metres. Q. About? A. Eight metres. Q. When you say "about eight metres", how far would you say it is from where you are to the officer in the blue shirt sitting directly opposite you? A. About eight metres. Q. Would that have been the distance that you walked? A. Yes. Q. Did you then have a conversation with Mr. Burton? A. We had an argument, that is, words. Q. What were you arguing about? A. Something that happened inside. Q. Can you recall what? A. Eh? Q. Do you remember what happened inside? A. Yeah, he grabbed my girlfriend on the arse. Q. He grabbed your girlfriend where? A. On the arse. Q. Are you saying "the heart"? DUNFORD J: On the arse. COUNSEL (KINTOMINAS): Q. Would you demonstrate on your body where you mean? A. No I won't. SULLY J: He pinched her. COUNSEL (KINTOMINAS): I am sorry, I was hearing a "t" not an "s". I apologise Mr. Kalache. Q. So you took exception to that, did you? A. Yes. Q. You took him outside? A. Yep. Q. And you had an argument with him? A. Yep. Q. How long did you argue for? A. You know, just a couple of words, then something happened after that, we had a punch on that led -- Q. Who punched him? A. Me and him, Jason Burton. Q. Who punched you? A. There was a scuffle, me and him. Q. Did you punch him? A. Yep. Q. Did he punch you? A. Yep. Q. And then what happened? A. I pulled the knife out and I stabbed him. Q. Where did you keep this knife? A. In my pants. Q. At the time that you stabbed him were you aware of who may be watching? A. No. Q. After you stabbed him – how many times did you stab him? A. Two times. Q. Where did you stab him. A. I can't remember. Q. Can you do your best? A. No. SULLY J: Can you give us any idea at all? A. Somewhere in the chest. Q. Can you be any more specific? A. No. DUNFORD J: Was it a downward movement, an upward movement, a sideways movement? A. Side. Q. Sideways? A. Yes. COUNSEL (KINTOMINAS): When you say sideways, does that apply to both times you stabbed him? A. Yes. Q. Why did you stab him? A. I don't know. Q. You mean you do not know now or you did not know then? A. I know why I done it then. Q. Why did you do it then? A. Because one thing led to another. SULLY J: Please say that again – because one thing led to another? A. Yeah. COUNSEL: (KINTOMINAS) Q. After you stabbed him, what did you do with the knife? A. I dumped it. DUNFORD J Sorry? A. I dumped it. COUNSEL (KINTOMINAS): Q. Where did you dump it? A. I can't remember. Q. Did it fall from your hand at any stage? A. Yes. Q. When? A. At the same time. Q. At the same time as when? A. As when I stabbed him. Q. What happened to it after it fell from the hand? A. I picked it up. Q. By the time you picked it up did you become aware as to who else may be looking at you, seeing what was happening? A. No. Q. Then what did you do? A. Then we went in the car and took off. Q. Who did you take off with? A. A few – my friends. Q. Can you tell us who? A. No. Q. Was Emad Sleiman with you? A. No. OBJECTION SULLY J: Not on this topic, Mr. Kintominas. COUNSEL (KINTOMINAS): Q. Can you tell me how many people were in the car? A. Four of us. Q. Was there any discussion with the people in the car about what had happened? A. There was, but I can't recall. Q. Is that as a result of them asking you questions, or you telling them things? A. They were asking me questions." 26 As to the second and third matters, Mr. Kalache said that he tried, immediately after his acquittal, to tell his own then solicitor that he wished to give evidence in support of the present appellant. He did not say what exactly it was that he was able and willing to give in evidence; and he certainly did not disclose that his purpose was to confess to having been, himself, the one and only assailant. 27 Examining counsel took Mr. Kalache to various parts of his affidavit, the contents of which I have previously herein noted at paragraph 15. This gave rise to the following: "Q. Perhaps you might be able to assist me. When you say "I have not been prepared in the past to give evidence about what occurred on the night of the murder", how are you able to say that in view of the fact that you had asked to see Mr. Hill, I think it was, after you were found not guilty and had offered to help? Can you just explain how those two sit together? A. No, I can't. Q. Well, is one of them wrong or are they both right? A. I don't know. Q. You had told Mr. Kekatos that you had not been prepared in the past to give evidence? A. That's right. Q. Did you understand, when you spoke to Mr. Hill, that the only practical way that you could assist Mr. Sleiman was to get into the witness box and give evidence and tell the jury that you were the one who had killed Mr. Burton? A. Yep. Q. Had you been prepared to go that far? A. No. Q. So what other way were you hoping to help Mr. Sleiman? A. In that way. Q. In which way? A. To give evidence. Q. You wanted to give evidence for him, but not tell the jury that you were the one who stabbed him? A. Yeah. Q. Was that last statement "I have come to the decision that the truth should be told", was that true? A. What was that? Q. I withdraw that. When you said in your affidavit that you had not been prepared in the past to give evidence about what occurred on the night of the murder, but you had come to the decision that the truth should be told, what, if anything, made you change your mind and have a different attitude? A. Why? Q. Yes. A. I don't know why. It's not right for him to be in gaol for something I did. DUNFORD J: But this was in August of this year, wasn't it, that this affidavit was prepared? A. That's right. Q. That's when you thought it wasn't right for him to be in gaol for something you did? A. That's right. Q. But he had been in gaol for what, three years at that stage for something that you did? A. Yeah. Q. Did you think that was all right? A. No. Q. What made you change your mind? A. I don't know, I just felt, I had to do it then." 28 Mr. Kalache denied that his confession had been the result of any external pressure or influence; or that it had been in any way influenced by his subsequent conviction and sentencing in connection with the Chedade killing. 29 As to the appellant's own awareness that Mr. Kalache had stabbed Mr. Burton to death, Mr. Kalache gave this evidence: Q. Are you able to recall when you first realised or knew that Emad Sleiman knew that you had committed the murder, that is, the murder of Jason Burton? A. What about it? Q. Do you remember when it was that you realised that Emad knew you had stabbed Jason Burton? A. No. Q. You became aware that he knew that you had done it, did you? A. No. Q. You don't know? A. I don't know." 30 Before the adjournment at the end of that particular sitting day, I raised with Mr. Kalache the matter of his understanding about the effect of his own directed acquittal. The following interchange resulted: "Q. You can take it from me that the day on which you were acquitted in Mr. Justice Sperling's court was 7 May 1999. After you had been acquitted, did you get any advice as to whether or not the effect of the acquittal was that you could not be charged again with the murder of Mr. Burton? A. No. Q. Did you have any understanding about that fact? A. No. Q. Did you later on discuss it with anybody? A. No. Q. Until you raised it with Mr. Kekatos? A. Yep. Q. Just think about it for a moment. Are you saying that until you spoke to Mr. Kekatos earlier this year you had no idea at all, one way or the other, whether you could be charged again with the murder of Mr. Burton if you were to make the admission that you make in your affidavit? A. No." 31 Mr. Kalache was cross-examined extensively about all three of the topics previously mentioned. As to the detail of the stabbing incident itself, the evidence was laconic and not always consistent. The following excerpt gives the flavour of the whole: "Q. Mr. Burton threw the first punch? A. Yeah Q. What happened to that punch? A. I can't remember. Q. Did it hit you? A. Yeah, he got me. Q. Where? A. In the face. Q. What did you do? A. I pulled the knife out. Q. What, straight away? A. Yeah. Q. Did you think he was going to do that much damage to you? A. I didn't think at that time, no. Q. Why did you pull the knife? A. I don't know, I just pulled it out. Q. Surely you were going to scare him with it, is that right? A. It happened; it happened." 32 Part of the cross-examination, and questions put by the Court, attempted to clarify what Mr. Kalache was suggesting as to the location of the stab wounds. This evidence, also, was laconic and not always consistent. 33 Thus, to Dunford J: Q. Where did you stab him? A. In the chest. Q. In the chest? A. Yeah. Q. Do you know the difference between the chest and the abdomen? A. No. Q. You don't? Do you know where the abdomen is? A. No. Q. No idea? A. No. Q. But, you said you stabbed him in the chest when you swore your affidavit. Where do you say you stabbed him, in the abdomen or the chest? A. I beg your pardon? Q. You say you stabbed him in the chest, is that right? A. Yeah. Q. You say you don't know the difference between the chest and the abdomen? A. I told you I stabbed him somewhere around here (indicated). Q. You say you don't know the difference between the abdomen and the chest? A. That's right. SULLY J: When the witness said, "somewhere around here", he made a stabbing motion of his chest. DUNFORD J: You say you read the affidavit that Mr. Kekatos prepared before you signed it? A. Yes. Q. And it says, "I stabbed him in the abdomen". That was not right, was it? A. No, it was right. Q. What? A. It was right. Q. It was right? A. Yeah. Q. How do you know it was right, it you don't know where the abdomen is? A. I thought it was around somewhere near his stomach on the chest. (indicated) Q. What is the difference? A. No difference to me. Q. The point is that when you signed that affidavit, you didn't know where the young man had been wounded? A. Yes I did. Q. Where was he wounded? A. Somewhere around his stomach and his chest. (indicated)" And, variously, to the cross-examiner: COUNSEL (INGRAM): Q. How did the blade go in? A. How? Q. Which direction – how? A. Around (indicated). Q. Around? A. Yes. Q. Around the stomach? A. No, like that – sideways (Indicated). Q. How did the blade go into his body? A. What do you mean how did it go in? A. What track did it follow? Where did it go? Where did it go when it got in as far as you could see? A. I don't remember. Q. You stabbed him twice, correct or incorrect? A. Correct. Q. In the same wound or two different wounds? A. No, two different wounds. Q. In the same area of the body or different areas of the body? A. I don't know. Q. You were watching this man? A. Yes. Q. You were watching him very closely? A. Yeah. Q. Why were you watching him very closely? A. At that time I stabbed him? Q. Yes? A. I just stabbed him twice and took off. Q. You were watching him very closely? A. I don't know what you mean. Q. Just in case he had a blade to switch out on you, that's why you were watching him closely? A. I don't know. Q. Where was the blade pushed – in the front? A. I know where I stabbed him. Q. Would you tell me where you stabbed him; front or back? A. Front Q. Which side? A. Which side of what? Q. Which side of him? A. At the front – somewhere here (indicated). Q. Somewhere between the chest and the stomach at the front? A. Yeah. Q. Did the blade go straight in or at an angle to his front? A. No, in and out. Q. Did it go in through the side of his chest? A. I don't know. Q. You don't know? A. No. Q. What was he doing with the hand on the side where you stabbed him from? In other words, you were swinging with your right hand, is that right? A. Yes. Q. Where was his left hand? What was he doing? A. I don't remember. Q. Did he have it around your throat? A. No. Q. Was he squeezing it? A. Squeezing what? Q. Your throat? A. No. Q. Did you think he was going to choke you? A. No. Q. Did you stab him? A. I just done it at that time. Q. Why did you stab him? A. I don't know why. Q. What did you think if you stabbed someone in the chest or the abdomen with a knife? A. I was just going to wound him. Q. How far up the blade did it go in? All the way? A. I don't know. Q. Did you stab hard or soft? A. I don't remember. Q. Quickly or slowly? A. Quickly Q. Why? A. Because I just wanted to get out of there." ****** "Q. You did see Mr. Burton stabbed, didn't you? A. Well, I guess I done it. Q. And you were within a metre or so of it happening, weren't you? A. He was right next to me, yes. Q. You saw him stabbed twice, correct? A. Yeah Q. You don't know what parts of his body were stabbed exactly, do you? A. Not exactly. Q. All you can say is, well, sort of the chest maybe down to the stomach somewhere? A. Yeah. Q. And yet you did it? A. Yeah. Q. But you don't know where you hit him -- A. No. Q. --any more precisely than that? A. That's right. Q. And it couldn't have been Emad Sleiman because he wasn't anywhere in sight so far as you could see? A. That's right. Q. So therefore it had to be you? A. Yep." 34 A great deal of cross-examination was directed, of course, to an examination of why it had taken Mr. Kalache such a very long time to come forward with his confession. The following excerpt, taken from early in the course of the cross-examination, illustrates the tone of Mr. Kalache's evidence as a whole: "Q. You just understood; well, once you are acquitted once you are found not guilty, that's it, you can't be charged again, is that what you understood? A. Yeah. Q. And you understood that, that day you walked out of the court room, is that right? A. Yeah. Q. You didn't have to ask Mr. Stratton, the Senior Counsel, to explain why you could not be charged again, did you? A. No. Q. You knew, did you, or you understood – believed – that, once, the jury foreman had said "not guilty" about you, that was it – you were free? A. Yep. Q. And was it your understanding, when you walked out the court door, when you had been acquitted, that it didn't really matter what happened, you could not be charged again with the murder of Jason Burton? A. No. Q. Pardon me? A. No. Q. No, what? A. I thought I was going to be charged again. Q. Did you? A. Yes. Q. Didn't you tell me that you thought it was your understanding that you could not be charged again? A. I didn't understand what you said. Q. Now you have suddenly realised; heck, I should have said, no, no I never knew whether I would be charged again – that wouldn't be the case? A. No. Q. What was it that you thought I was asking you about? A. I don't know. Q. You don't know? A. No. Q. Did you misunderstand my questions? A. I think I did, yeah. Q. What did you think I was talking about? A. I don't know. Q. Why did you answer? A. I just did. Q. All right. You did because you thought I was asking you something, correct? A. Yep. Q. What was it you thought I was asking you? A. I don't know. Q. It is only a few minutes ago. A. Yeah. Q. Have you forgotten already? A. Yeah. Q. Forgotten already, is that right? A. Yes." 35 Mr. Kalache's relevant process of reasoning, as best I can divine it from his evidence, seems to have been to the following effect: [1] He thought that the jury would find the appellant not guilty; and there was, therefore, no particularly urgent need for him, Kalache, to come forward and confess; [2] He approached, nevertheless, and either on the very day of his own acquittal or thereafter, the appellant's trial solicitor, and his own trial counsel. He said that he wished to help the appellant. He gave, however, no inkling of his own true culpability, or any other useful detail of the help that he was saying he could give. [3] When, contrary to his expectation, the jury found the appellant guilty of murder, he, Kalache, thought that he would wait "for his appeal to come through" : T 110(54). 36 Mr. Kalache was pressed to explain, in particular, the third of those points. The following excerpt is representative of how Mr. Kalache explained himself: "Q. Why did you wait from the time that Mr. Sleiman was convicted, in 1999, until the early part of 2002 to tell his brother to ask Mr. Kekatos to come and see you? A. I was just waiting for his appeal. Q. How do you know when the correct time was for Mr. Kekatos to come and see you? A. I don't know when the correct time was. Q. How did you know when the correct time was? A. I was just waiting for his appeal. Q. How did you know when the appeal was on? A. I found out from him. Q. From whom? A. From his brother. Q. In talking to his brother, did you tell his brother what you were able to do to help Mr. Sleiman? A. To his brother? Q. Yes. A. No. Q. Why not? A. There was no need to. I just told him to send his solicitor. Q. And finally, when Mr. Kekatos turned up at the gaol and spoke to you, that was the first time, after you were acquitted, that you told anybody that you were the person who stabbed Mr. Burton, is that right? A. Yeah. Q. Why did you wait so long? A. For what? Q. To tell anybody? A. There was no need to tell anyone. Q. Well, your uncle was sitting in gaol, wasn't he? A. Yeah. Q. How long had he been in gaol roughly before the trial? A. Some time. Q. About 18 months? A. Yeah. Q. So, by this stage, he has been there two, two and a half going on three years, is that right? A. Yes. Q. For a murder that he did not commit? A. Yeah. Q. And you knew he had not murdered Mr. Burton, is that right? A. That's right. Q. And you waited until his appeal came on before telling anybody that? A. Yeah. Q. When you told Mr. Kekatos that it was you who stabbed Mr. Burton, you told him so you could fill out an affidavit or help in the appeal of Mr. Sleiman? A. Yes. Q. At that stage did you believe you could be re-charged with the murder of Mr. Burton? A. At that stage, no, I didn't. No. Q. You did or you didn't? A. No. Q. Wasn't it that it was only last time that their Honours told you that you could not be charged with Mr. Burton's murder a second time? A. I asked his solicitor if I could be re-charged. Q. What did he say? A. No. Q. Did he say; definitely no, no, I'm not sure, no; or, I have no idea, no? A. He just said, 'no'. Q. So it was not for the first time when their Honours said it to you last time you were giving evidence that you learned that you could not be re-charged with Mr. Burton's murder at all? A. I don't know. Q. It was when Mr. Kekatos told you? A. Well, I asked him. Q. Of course, you would, wouldn't you? A. I was going to do it whether I was going to be charged or not. Q. Why didn't you do it when you walked out of the door of the court room? A. What difference would it make? Q. Mr. Sleiman wouldn't have to spend all that time in gaol. You didn't know he would win his appeal? A. I thought he was. Q. Just like the trial; you knew you stabbed Mr. Burton and you walked out of the court room door leaving your uncle to face whatever it was that the jury were going to do, didn't you? A. No. Q. Well, what did you do? A. I thought he was going to walk. Q. You very quickly found out that he didn't, didn't you? A. Not quickly. Q. Well the same day it happened; you found out that quickly didn't you? A. What happened? Q. That he got found guilty; you found out the same day, didn't you? A. That he got found guilty? Q. Yes. A. Yeah. Q. And you then waited from that time, what, 18 months before talking to Mr. Kekatos? A. Yeah. Q. In that time did you send a message to Mr. Sleiman; look, don't worry, I'm going to come forward and tell the truth about what happened; you'll be released; I'm going to help you; it will be alright? A. No, I mentioned that once before when we were together. Q. Where was that? A. In gaol. Q. Which gaol? A. I think in the MRRC. Q. You mean the Metropolitan Reception and Remand Centre at Long Bay? A. No, Silverwater. Q. Was that before or after you were acquitted? A. No, before the trial. Q. What did you say to him to reassure him at that time? A. I said, "If worst comes to worst, I'll come forward". Q. If "worst comes to worst", I'll come forward? A. Yeah. Q. This is before the trial has happened? A. Yeah. Q. Both you and he are on remand together waiting for the trial? A. That's right. Q. When you said, "if worst comes to worst, I'll come forward", what did you mean by that? A. If he goes down for it, if he gets convicted for it, after I'll tell them that I done it. Q. Is that on the assumption that you were acquitted, is that what you mean; if I get off and you don't, I'll come forward and tell them I done it? A. Yeah. Q. That is exactly what you have done? A. Yeah. Q. So you were true to your word, weren't you? A. Yes. Q. Why didn't you do it after you were acquitted? A. Why? Q. Yes? A. There was no need. He got found guilty. I was not going to say to them I done it and if he doesn't get convicted" 37 In addition to the foregoing topics of cross-examination, Mr. Kalache was cross-examined about the immediate aftermath of the stabbing. He gave this version: "Q. When you got in the car, Emad Sleiman was there? A. Yeah Q. Did you say anything about what had just happened to Mr. Burton? A. Yeah, I told him. Q. What did you say? A. I told him I stabbed him. Q. Did he say anything back? A. I can't remember. Q. Did the car wait there or drive off? A. No, it took off. Q. It took off? A. Yeah. Q. You mean in a hurry? A. Yeah. Q. To get away? A. Yeah DUNFORD J: I suppose someone said; why did you stab him, did they? A. No. Q. You got in the car, you told the other people in the car that you had stabbed this man? A. Yeah. Q. And none of them said, why? A. No. Q. None of them said: how? A. No. Q. `No discussion at all? A. No, I just wanted to get out of there. That's all we were concentrating on, to get out of there. Q. They were in a car with someone who had just killed a man? A. I didn't know he was going to die then. Q. Well, someone who had just stabbed a man? A. Yeah. Q. They were in a car with someone who had just stabbed a man? A. Yeah. Q. They didn't want to know how you stabbed him or why, or anything about? A. No. Q. But there was discussion; you did tell them that you had stabbed him? A. Yeah. Q. And Emad Sleiman was in the car? A. Yeah. Q. You remember telling this court on the last occasion that he was not with you when you got in the car? A. No. Q. That would be wrong, wouldn't it? A. Yeah DUNFORD J: That is at page 84. COUNSEL (INGRAM): Q. His Honour has drawn something to your attention that you said last time. A. Yeah Q. They couldn't both be right? A. No. Q. Do you know which one -- A. I know we were all together in the car. Q. Do you think last time that the question that was asked of you it was a bit confusing and you did not understand it and that's why you gave that answer? A. May be. Q. May be you could not remember correctly? A. I don't know. Q. May be you were not sure what answer to give, do you think that is a possibility? A. I can't remember. Q. It wouldn't be, would it, that last time you said to their Honours that Mr. Sleiman wasn't in the car because you didn't want to give any evidence that might suggest that he could have come to learn that night about the stabbing that had just taken place? A. No. Q. You were trying to distance him from the stabbing. That wouldn't be the case would it? A. No. Q. Just like you are when you give evidence that you were the one who stabbed and he wasn't the stabber? A. No. Q. That wouldn't be the case, would it? A. No" 38 In re-examination, Mr. Kalache was brought back to the topic of the location of the fatal stab wounds. He gave this brief evidence: "Q. When Mr. Kekatos first saw you, how did you communicate to him where you had stabbed Mr. Burton? A. How? Q. How did you communicate to him where you had stabbed Mr. Burton? Did you tell him, did you show him, what did you do? A. I remember saying around here. SULLY J: And once again with the right hand making a circular motion around the centre of the chest. A. Yeah. COUNSEL (KINTOMINAS) Q. I would have thought, your Honours, beneath the pectoral muscles and towards the top of the stomach. A Just here. DUNFORD J: The bit in between that last movement, I thought. A bit below the chest but a bit above the abdomen, between the two of them, would be my description of his movement. SULLY J: I am content to be associated with that description." · Ross Hill 39 Mr. Hill's oral evidence was very brief. His evidence-in-chief confirmed the contents of his affidavit; and confirmed, also, that Hassan Kalache, when he approached Mr. Hill after his directed acquittal, did not offer help in the form of evidence supportive of the then continuing case at trial of the appellant. 40 Mr. Hill's attitude at that time towards Hassan Kalache is clear from the following evidence: "Q. You said at the time it didn't seem necessary or prudent, is that a correct paraphrasing of what you said? A. Not really. I think – well right then and there my main concern was, you know, Mr. Kalache, trying to get rid of Mr. Kalache from hanging around SULLY J: He should not be hanging around the court either inside or outside possibly causing prejudice to the trial of your client, that is what I am understanding? A. Yes. That's what I am saying. There was a bit of trouble. Q. You would not say anything was manifestly worthwhile except this opaque suggestion that your client hadn't committed the murder but he couldn't and wouldn't say anything more so he was no use to you from that point of view? A. Yes, that's correct. Q. And you didn't want him a centre of distraction or attraction while the rest of the trial of your client went on; that is what it comes to? A. Yes." ****** "A. …………….. When Mr. Kalache said it to me it happened in those few brief words and there was other things happening around the place, and I didn't take much stock in this, to tell you the truth, so I didn't bring it to Mr. Horler's attention, no." ****** CROWN PROSECUTOR: Q. When you use the phrase you didn't put much stock in what Mr. Hassan Kalache said, what did you mean by that in connection with the view you took or the impression you formed of what it was that was being said to you by Mr. Kalache at the time in the car park? A. Well, it wasn't so much of what he said but it was just an overall thing in respect of, you know, the whole trial and my perceptions of how the jury were looking upon both Mr. Sleiman and Mr. Kalache and Mr. Kalache's behaviour outside the court room. I just sort of wiped it and wanted to get him away. That's what I wanted to do because I knew there was going to be trouble if he stayed around. Q. You didn't think anything he said or would be likely to say would help your client, is that a correct summation of the view you took at the time? A. What he said couldn't help my client." · Jim Kekatos 41 Mr. Kekatos apparently felt some diffidence in his dealings with Hassan Kalache. He was not Hassan Kalache's solicitor; and he was, according to his evidence wary about leaving room for anybody, and not only Hassan Kalache, to criticise him for having, in effect, coached rather than coaxed a version of events out of Hassan Kalache. 42 The general tenor of Mr. Kekatos' evidence is illustrated by the following extract from it: "COUNSEL (INGRAM) Q. You asked him, "Can you prepare a statement setting out for me what happened?". A. That's correct. Q. He said, "No, I can't. You prepare it and I'll sign it"? A. That's correct. Q. As you have told their Honours, at this point you were concerned to be at arm's length with Mr. Kalache, so far as any step you might or might not wish to take about assisting the appellant? A. That's correct. Q. Did it occur to you that you would get even closer if you accepted his invitation? A. I took the instructions and conferred with Mr. Kintominas in relation to whether an affidavit should be prepared and it was decided to prepare the affidavit . SULLY J: I don't understand that, speaking for myself. He says to you, 'No I can't, you prepare it and I'll sign it,' and I thought the obvious answer would have been; I can't prepare it, you were the person who was there, you know what happened. Was there no exchange at all that attempted to get some kind of rational description of what Mr. Kalache was prepared to swear or affirm had happened on the night that led up to somebody being stabbed to death? A. I didn't ask the questions in relation to what happened on the night. SULLY J: Why on earth not? A. I didn't want to get in the position where I had to prepare an affidavit on his behalf and whether I considered he may ultimately be called to give evidence and give his version orally. I don't recall why I didn't press any further in relation to what should be placed in the affidavit. Q. I acknowledge at once that there is no vision quite as dazzling as the vision of hindsight, but the fact is you were going to prepare an affidavit for him, by which I mean you were going to put into proper form an affidavit which he would swear or affirm? A. That's correct. Q. You couldn't possibly do it from material that you knew yourself, because you had no such material; you were not there and you didn't know what he could or could not say. However taciturn he might have been, was no step taken to wring out of him properly at least some skeletal outline of what he was prepared to say happened on the night culminating in his taking a long bladed knife and stabbing somebody twice and, as it happened, fatally? A. I didn't press him. I asked him to give me a version and there was no detailed description, or a description of what occurred on the night. DUNFORD J: How were you going to be available to advise your client whether his version was credible without knowing how it dove-tailed in with the rest of the evidence in the trial? A. I didn't consider that at the time Q, You didn't? A. No. SULLY J: When you asked him whether he could give you a description and he said, as you will see towards the foot of the page, 'I don't know, just that I stabbed him', and so forth, you gave an answer earlier which I must say I lost in the inadequacies of the microphone. What did you say you thought he meant when he said, 'I don't know'? A. That he couldn't express it in a competent way to give a description of what occurred on the night. Q. Well, that rather depended, didn't it, upon what he was asked to express? A. That's correct. I only asked him to express a version of what occurred on the night. I didn't guide him in any particular way, or ask that he give a version of what occurred, or where Mr. Sleiman was, or anything along those lines. I purely tried to take an affidavit of what he proposed to say to me, or what he said to me on the day. Q. Do I correctly recollect that you said earlier that you interpreted the words 'I don't know' as meaning that he couldn't express himself, rather than that he simply didn't know? A. Yes, I believed it was more that he couldn't express himself. Q. What is it that caused you to form that impression as or between the various possibilities? A. It was just in the conversation that occurred. There was not much response in relation to the general conversation, or in relation to asking him to, you know – firstly asking him to write something out in his own handwriting and then trying to get something from him in affidavit form." 43 This evidence was qualified somewhat as follows in re-examination: "Q. Did I also indicate to you, when you rang me, to tell me what Mr. Kalache had told you; that it was inevitable that the Crown would wish to cross-examine him? A. That's correct. Q. And issues such as why, et cetera, were better left untouched, in my view, until the appeal? A. That's correct. Q. And you relied on my advice? A. Yes, that's why I didn't ask, or push, the questions in relation to what he was prepared to put in the statement." Ground 4: Discussion and Decision 44 The relevant legal principles are not in doubt. They are stated as follows by Mason CJ in Mickelberg v The Queen (1989) 167 CLR 259 at 273: "It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen . Deane J and I considered that the test was best expressed in those terms. Gibbs CJ expressed his substantial agreement with the statement, although his Honour emphasised that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements." 45 See to the same effect R v PLV (2001) 123 A Crim R 194 per Spigelman CJ at 205(71) and the authorities there cited. 46 A proper assessment of what the "significant possibility" might have been in the present case must depend, at least in part, upon what it is supposed might actually have happened at the appellant's trial. There are, in my opinion, two possible approaches, namely: [1] to suppose that Hassan Kalache, having been acquitted by direction, had thereupon given confessional evidence to the jury before which he had been arraigned as a co-accused with the appellant; and [2] to suppose that Hassan Kalache, having been acquitted by direction, had indicated thereupon to the appellant's legal representatives that he was prepared to give confessional evidence; that those representatives had thereupon sought and obtained the discharge of the jury; and that Hassan Kalache had given later, and before a freshly empanelled jury, his confessional evidence. 47 On either approach, a relevant consideration must be an assessment by this Court of the apparent credibility of the confessional evidence and its apparent cogency if accepted. 48 This Court had, in my opinion, ample opportunity to make a fair assessment of the credibility of both the appellant and Hassan Kalache in connection with the fresh evidence now available from the latter. 49 In my opinion, a reasonable jury properly directed as to the relevant law and facts, would have found, in either of the two suggested contexts, that a post-acquittal confession of Hassan Kalache was so blatant in its affront to the ordinary common-sense of the particular jurors as to have been incapable of giving rise to any reasonable doubt about the guilt of the appellant. 50 There is, however, a further consideration which is expressed as follows by Giles JA in R v Bikic [2002] NSWCCA 227 at paragraph 347: "To whatever extent the fresh evidence is to be placed hypothetically before the original jury, however, it seems clear enough that it is the credibility of the evidence assessed as matters stand at the time it is raised in the appellate court which matters. Much fresh evidence would not have been in existence at the time of the original trial, and it would be artificial to treat it and whatever bore upon its credibility as given in evidence at the time of the original trial." 51 The application of this test to the relevant facts of the present case does not, in my opinion, advance at all the appellant's case on Ground 4. 52 In my opinion it would be incredible to any reasonable jury that a nephew would leave his innocent uncle, to whom he claims to have been at all material times in a close and affectionate family relationship, to languish in prison for something like 3 years before confessing his own guilt to the complete exclusion of any culpability on the uncle's part. 53 The appellant himself presented, in my opinion, as abrasively self-assured. I doubt that, given the facts and circumstances as I have earlier herein reviewed them, any reasonable jury would find it credible that the appellant would have gone quietly for something like three years before taking some forthright steps to get the real killer, now safe from prosecution, to confess. 54 Hassan Kalache himself presented, in my opinion, more laconically but no less abrasively than his uncle. I cannot think that a reasonable jury, before which he presented as he presented before this Court, would find his evidence credible. I am comfortable in the view that such a jury would regard that evidence as transparently glib, opportunistic and unconvincing. 55 In my opinion, Ground 4 should not be upheld. Ground 1 56 This ground is put in, broadly speaking, two ways: first, upon the basis that his Honour erred in the way in which he directed the jury immediately following the directed acquittal of Hassan Kalache; and secondly, upon the basis of things said to the jury by his Honour during the course of the summing-up. 57 The directed acquittal of Mr. Kalache took place at the commencement of the Court's sitting on 7 May 1999, the 25th day of the trial. It is useful to reproduce from the transcript the recorded sequence of events: "CROWN PROSECUTOR: Does your Honour intend to ask the jury to reach a verdict now in relation to Mr. Kalache? HIS HONOUR: Yes. I take the Crown case against Mr. Kalache to have been closed, and it seems to me the appropriate case is that when the jury comes into court on the next occasion I should direct them to return that verdict. CROWN PROSECUTOR: So far as the Crown is concerned, it does not make any difference when your Honour delivers reasons for that. Does your Honour intend to say anything to the jury about it though? HIS HONOUR: About why? CROWN PROSECUTOR: About why, yes your Honour. HIS HONOUR: I didn't but what I had in mind to say to the jury was something along these lines, that the trial would proceed in relation to the other accused, that what had occurred did not imply a view on my part about guilt or innocence. I should perhaps have Mr. Horler here when I run through this, Mr. Crown CROWN PROSECUTOR: Yes, your Honour. …………………………………………………………………………….. HIS HONOUR: Mr. Horler, I have announced a decision that there should be a verdict for acquittal by direction regarding Mr. Kalache that will be implemented when the jury is all here. Mr. Crown asked me if I had in mind to say anything to the jury about what will then have occurred, and I had in mind not to traverse my reasons with the jury at all, but to tell them that the trial would proceed against the other accused, that what had occurred did not imply a view on my part as to guilt or innocence one way or the other of that accused, that would be for the jury to decide at the end of the proceedings; that the best way to look at the trial now was to proceed as if Mr. Kalache had not been indicted. The fact that he was indicted and has now been acquitted by direction will have no bearing at all on their consideration on the charges against the other accused one way or the other, its relevance, so suggest they simply put out of their minds what had occurred in relation to Mr. Kalache and concentrate on the matter in hand. COUNSEL: (HORLER) I am perfectly happy with that. HIS HONOUR: Mr. Crown? CROWN PROSECUTOR: The only thing that concerns me is because of the evidence of Mr. Stacey where he says 'Who did it' and he says 'Kalache' the jury is going to be wondering why Mr. Kalache is being acquitted when it has been nominated by Mr. Stacey that the victim has said he is the one who did it. In my submission the jury should be told some very short reasons or short facts – I am not sure – it is a bit difficult, but in my submission because of that it is going to be left up in the air as to how that comes about, and something should be said about that. HIS HONOUR: I see difficulties. Let me tease it out though, Mr. Crown, so we have the matter for consideration very clearly before us. What is it that you would like me to say to the jury? CROWN PROSECUTOR: I am not quite sure, your Honour, because I see there are difficulties also. HIS HONOUR: Let me just pause a moment and consider what you think you would really ask me to do. CROWN PROSECUTOR I think what I would ask your Honour to tell the jury, is that the only evidence against Mr. Kalache was the matters which we dealt with yesterday which was an outline of some of the evidence against him, that is that the evidence that he was seen in the group, that he was seen to walk out with Mr. Burton, that up to that stage there had been no significant aggression between anybody and Mr. Burton, and that there was no evidence that anybody had a knife. CROWN PROSECUTOR: The other evidence is that Mr. Stacey saw Mr. Kalache pushing Mr. Burton and there is no evidence to suggest that at the time that Burton was stabbed that Mr. Kalache knew or believed that there was a knife, and therefore at the highest, the evidence against Mr. Kalache is that he went out with Mr. Burton and there was an agreement that there may be some pushing or shoving, and on that basis there is no evidence which the Crown can rely upon to show that he had an intention or a requisite belief, something along those lines your Honour. HIS HONOUR: That would serve to highlight attention -- CROWN PROSECUTOR: I know. HIS HONOUR: -- on what Mr. Stacey says he was told by Burton that Kalache had done it, rather than the opposite. CROWN PROSECUTOR: I see the problem in it your Honour. HIS HONOUR: You see, may I make it clear that I understand fully why the Crown has taken the position it has in relation to what was allegedly said by Mr. Burton to Mr. Kalache, and I regard the Crown's position as not only understandable but rational and proper and appropriate. I don't believe that there was indeed a practical alternative course to the one that you have taken in regard to that evidence, but it has some implications. It had an implication that, making your position in relation to this application more difficult than it might otherwise have been, it also, now that that has been resolved against you, and of course that wasn't to be know until I made my decision, it has an implication as far as the further conduct of the trial against Mr. Sleiman and Miss Cassar are concerned because I can't see how I can avoid a situation in which the continuing accused would want to use that evidence as raising a doubt as to whether Mr. Sleiman had indeed stabbed Mr. Burton, I don't see there is any way in which I could or should look to avoid that situation, and indeed it does seem to me that if I said anything to the jury about that aspect to the jury I would really be trespassing on factual issues in a way in which the jury might think it appropriate to use evidence. Am I wrong about all that? CROWN PROSECUTOR: No your Honour, you are not wrong. That's why there is probably no solution which is going to be satisfactory all round. HIS HONOUR: First of all I really think it would be wrong at this stage for me to say anything, but I will bear in mind as to whether there might not be something that ought to be said in the course of the summing-up that avoids a wrong implication arising from the fact that Kalache was acquitted notwithstanding that evidence, so it is a matter you might like to raise at a later time Mr. Crown. CROWN PROSECUTOR: It may arise out of defence addresses to your Honour. HIS HONOUR: Mr. Horler, do you have anything to contribute about anything of that? COUNSEL (HORLER): Not at this stage. In view of the reservations and doubts expressed by your Honour and the concession properly made by the Crown I have nothing to say at this stage, I may in due course. And of course by Monday we may have had the benefit of reading the reasons which have led your Honour to the conclusion in the case against Mr. Kalache. HIS HONOUR: I am in a position to give those reasons, but I am inclined to think I should hold them until the whole of the trial is complete because of the risk of imprudent reporting on questions of fact. COUNSEL (HORLER): Yes. I would ask to have the opportunity to read those before we revisit the issue we are now talking about. HIS HONOUR: Yes, well I will bear that in mind. COUNSEL (HORLER): Thank you. For the moment on the basis upon which we are now proceeding I have nothing further to add. HIS HONOUR: All of that is manageable, the reasons will not be long. Mr Stewart do you have anything to contribute? COUNSEL (STEWART): The danger that I see in your Honour commenting on those matters is that your Honour would be trespassing on the tribunal of fact's responsibility to make findings of fact. In my submission the course that your Honour has indicated would be the proper course. ………………………………………………………………………… HIS HONOUR: Members of the jury, before the evidence resumes I should say something further to you about the discharge of Mr. Kalache, and it is simply this. It may be to state the obvious but I will say it nonetheless to ensure that you bear it in mind. The trial will proceed and it will proceed against Mr. Sleiman and Miss Cassar. What has occurred does not imply a view on my part as to the guilt or innocence of the other two accused, or either of them. That will be for you to decide at the end of the proceedings. The best way to look at the trial now is that it proceeds as if Mr. Kalache had never been indicted. The fact that he was indicted for trial and has now been discharged has no bearing at all on your consideration of the charges against Mr. Sleiman and Miss Cassar one way or the other. It is irrelevant. So I suggest you simply put out of your mind what has occurred in relation to Mr. Kalache and concentrate on the task in hand." 58 Senior Counsel who appeared at trial for the appellant, and who has very extensive experience in the conduct of criminal trials, did not thereafter ask at any time for any re-direction. 59 During the course of the summing-up his Honour said: "Mr. Stacey, bending over him, says that he asked Mr. Burton who did it and that Mr. Burton said "that wog cunt Kalache". Mr. Burton was losing consciousness at this stage. I should draw your attention to the evidence in that regard. Mr. Stacey said, in answer to a question, "At that point I didn't realise there was actually another wound. He was leaning back and sort of like losing consciousness and really deep breathing. Then Jason's girlfriend, I think, come out and Craig Budd and a lot of people started gathering around, and the whole time I just sort of stuck with him and was comforting him, and then he turned around and I said 'do you know who did this to you?', and he said 'that wog cunt Kalache'. Then I turned around and he started rolling back, his eyes started rolling back. Mr. Stacey said that when Mr. Burton spoke these words, as I have indicated, he was leaning over Mr. Burton, and had his ear only eight inches from Mr. Burton's mouth. I pause here to say something about Mr. Stacey's evidence that he asked Mr. Burton who did it and that Mr. Burton said 'that wog cunt Kalache'. Taken at its highest, this is evidence completely at odds with the Crown case that it was Mr. Sleiman who stabbed Mr. Burton. However, that is not the only construction which can be placed on that piece of evidence. Mr. Burton was seriously injured; indeed he was dying. He was already losing consciousness at that stage. What Mr. Stacey heard might have been the first half of a sentence. If that is so, one could only speculate as to what Mr. Burton might have wanted to say Mr. Kalache had done or what he might have wanted to say about Mr. Sleiman. Speculation of that kind is simply not permissible; or Mr. Burton might have got the names of the two men confused; or he might have been so confused in his semi-conscious state that he really could have said anything. But there is another aspect to this part of Mr. Stacey's evidence which I should also mention. A lot has been said against Mr. Stacey's credibility, and indeed you might think there is quite a lot to be said. On the other hand, you might think that this piece of evidence goes the other way. If Mr. Stacey was dishonestly making up a story of having seen Mr. Sleiman stab Mr. Burton, why would he have volunteered that Mr. Burton said it was Kalache? Now, I do not say for a moment that that point carries the day in relation to Mr. Stacey's credibility. I only say it as a matter to bear in mind when you come to consider his credibility." 60 Again, no request was made for any re-direction. 61 The propositions upon which the appellant now relies are put as follows in the written submissions which were lodged in connection with the appeal: "12. His Honour should have directed the jury in respect of the dying declaration, that unless they were persuaded by the rest of the evidence of the accused's guilt beyond reasonable doubt so as to negate any reasonable possibility that the deceased had believed that Kalache and not the Appellant had caused his death, they should acquit the Appellant. 13. His Honour erred in seeking to have the jury approach the dying declaration on the basis that it might be suspect. This subtly involved reversing the onus of proof. The Appellant was entitled to rely on the dying declaration and it was for the Crown to prove to the jury's satisfaction that it could not be relied on. If the deceased had instead said that 'wog cunt Sleiman', it would have been seen as a piece of evidence almost conclusively demonstrating his guilt. The nomination of Kalache as the culprit should have been given the same weight by the jury as in any trial where the deceased makes a dying declaration that it was the accused who delivered the fatal blow. 14. His Honour compounded the problem by telling the jury to put the acquittal of Kalache out of their minds. What was required was a specific direction reinforcing the submission made by the defence counsel to the effect that if there was any reasonable possibility in the jury's mind that it was Kalache who had stabbed the deceased, then they were not to be deterred from acting on that reasonable possibility and acquitting the Appellant by the fact that the judge had directed them to find Kalache not guilty. Or in other words, the directed verdict did not create some barrier or estoppel to the consideration of whether Kalache was in fact the guilty party. It is notorious that some members of the public believe that 'not guilty' equals 'innocent'." 62 I see nothing amiss about the brief but clear directions given by his Honour on 7 May 1999. 63 To have left the jury without any guidance whatsoever would have risked having the jurors wonder to themselves, and thereupon speculate erroneously, about the permissible impact upon the continuing trial of the remaining two accused of the procedure, surely as a practical matter unfamiliar to and unexpected by them, that the jurors had seen played out as soon as they had re-entered the Court room on that morning. 64 In my opinion, any reasonable juror could not, and would not, have understood from his Honour's directions that Mr. Stacey's evidence about the dying declaration had been, somehow, withdrawn from them. Any reasonable juror would have understood, and correctly so, that the directed acquittal of Hassan Kalache was not to be allowed to deflect the jury from a proper consideration of all the material, oral and non-oral, admitted into evidence in the separate trials of the appellant and of Miss Cassar. 65 As to the directions given subsequently and as part of the summing-up, the appropriate starting point is the proposition, trite but of fundamental importance, that a trial Judge must be properly circumspect about making any comment about any matter of fact as distinct from any matter of law. It is, however, equally trite in principle, and in a particular case it might be as fundamentally important for the practical doing of justice, that the Judge is free to make, for the practical assistance of the jury, some properly circumspect comment about any matter of fact. What is always essential in the event that such a comment is made, is that the jury should be instructed unambiguously that any of the Judge's comments about the facts, as distinct from the Judge's directions about the law, cannot, and does not, and must not, be taken by the jurors as binding them. 66 In the present case the learned trial Judge gave the jury in a very early section of the summing-up the following directions: "Now, in performing my role I must necessarily refer in this summing up to the evidence, and I will do that. I do not propose to refer to all the evidence. Accordingly, the first observation I make to you in this regard is that you should not think, merely because I refer to some parts of the evidence and not to some other part of it, that you should confine your attention to the evidence to which I refer. That would be wrong. If I fail to refer to evidence that you regard as significant you must act on your own view and give that material the weight you consider it deserves. Similarly, because I refer to some evidence that does not mean that you must attach significance to it. If you do not think it has a bearing on the issues in the trial you are not obliged to think otherwise because of anything I might say. The second observation I make to you in this context is this, if it appears to you that I hold an opinion about a question of fact you are entitled to disregard my opinion. Indeed, you are obliged to disregard my opinion if it does not accord with your own view of the facts. I repeat, that it is no part of my function to decide the facts of this case. That is your responsibility and it is your responsibility alone." 67 There is no reason to think, now, that the jury disregarded those directions; and it is of the greatest public importance that the contrary conclusion not be reached lightly: see for example per McHugh J in Gilbert v The Queen [2000] 201 CLR 414 at par. 31. 68 In all of the foregoing circumstances, I would not uphold Ground 1. I am strengthened in that conclusion by the failure of experienced Queen's Counsel to ask for any re-directions. Ground 2 69 Detective Sergeant Buckley gave the following evidence: "Q. You remember being approached on Saturday 6 December by Adam at the club house at the golf club? A. Yes. Q. And he said to you "Buck, can I see you for a minute? A. Yes. Buck's my nickname. Q. You said, "Adam I have to leave, I'm in a hurry to get home" and you asked him if it was important? A. That's correct. Q. And he told you "Fucking oath it is, I've got huge dramas." A. Yes. Q. And you said, "Mate I'm really sorry but can it wait to next Saturday, I'll be here the same time" and he said, "Okay I'll see you for sure" and you said, "No worries". A. That's correct. Q. You then left? A. I did. Q. The next Saturday, which was the 13th December 1997, you again saw Adam at the club? A. Yes. Q. And you went to a table to sit down together? A. Yes. Q. And you asked him how you could help him? A. That's correct. Q. And he said, "Buck I can't handle it any more, they're giving me heaps". A. Yes. Q. And you said, "Hold on mate, what are we talking about?". And he said, "The Burton murder, the Lebs won't let me alone". A. Yes Q. He said, "Everywhere I go they're there. I go shopping with the missus in Westfield they follow me, they threaten me, they hassle me, I'm worried about the family mate." A. Yes. Q. And you said, "Why? Why are they doing this?". And he said, "Because of what I know, what I saw." A. Yes. Q. And you then said, "What did you see?". And then he paused for a while and he said, "If I give them up I'm a dead man, you've got to understand they mean business". A. Yes. Q. And you said, "Look Adam, if you want me to help you you've got to be straight down the line with me, if you saw the murder you've got a public duty to come forward. If that's the case we can help you, we have systems in place to protect you and your family, nobody will get to you", and he said after you said that "Buck I saw the lot". A. Yes. Q. He said, "I was in the beer garden at the back and saw the lot". A. That's correct. Q. And you then said, "I won't discuss the matter any more with you, that's for the detectives to sort out. I'll organise a meeting between Steve Morrisby and you, I'm back at work next week, leave it with me". A. Yes. Q. And you then finished the conversation? A. Yes. Q. Now at that time did you have anything to do with this particular investigation? A. I had no further involvement with – well I had no involvement leading up to that conversation and after it, other than my meeting with Steve Morrisby when I returned to work. Q. At that stage you had known Adam for some considerable time? A. Yes. Q. For how long had you known him? A. At least twelve months. Q. And you have seen him at his work at the General Bourke Hotel? A. Yes. Q. And he always appeared to you as what you have described, as a sensible, laid back person? A. Yes. Q. And he didn't appear to be fazed by pressure or stressful situations? A. That's correct. Q. You have seen him in potentially violent situations outside the hotel? A. Yes. Q. Dealing with intoxicated and violent people? A. Yes. Q. And he impressed you the way he took charge of the situation? A. Yes. Q. And the way he dealt with persons who were unruly? A. Yes. Q. And the way he appeared to control his emotions? A. Yes. Q. When you spoke to him at the golf club you noticed him to be on edge? A. Yes. Q. To be nervous? A. Yes. Q. And to be fidgety? A. Yes. Q. And that demeanour was totally the opposite to the behaviour you had previously seen in respect of him? A. Yes." 70 This evidence was not challenged in cross-examination; but the evidence was led over objection to its admissibility. 71 This evidence was dealt with by his Honour in a judgment dated 15 April 1999. His Honour dealt with the evidence upon the basis that the evidence answered, broadly speaking, this description: "There are broadly two categories in this evidence, although they overlap considerably. First, there is the statement by Mr. Stacey to Sergeant Buckley that Mr. Stacey saw the murder from the beer garden and the context in which that statement was made to Sergeant Buckley. That evidence is proffered as a prior consistent statement tending to rebut the attack on the credit of the witness in his assertion as to what he allegedly saw. The second category is evidence of Mr. Stacey's fear of telling what he saw and heard as a result of the harassing incidents to which he referred and as to how Mr. Stacey came to tell the police what had occurred, notwithstanding. This evidence is proffered as evidence explaining the delay of seven months which is relied upon by the accused as discrediting the witness's account of evidence given then and in his evidence here." 72 His Honour considered that the first category of evidence as thus defined was admissible pursuant to the statutory exception created by section 108(3) of the Evidence Act 1995 (NSW) to the so-called credibility rule that is created by section 102 of that Act. His Honour's view was: "Paragraph (a) of subs (3) is attracted because it was adduced from Mr. Stacey in cross-examination that he had made a statement on 20 December 1997 which was inconsistent with his evidence-in-chief as to what he saw and heard. Paragraph (b) of the sub-section is attracted because fabrication of the evidence-in-chief has been suggested." 73 His Honour dealt with the need, pursuant to section 192 of the Act, for the giving of leave to lead such evidence. This aspect of the ruling is not now controversial. 74 In my opinion, his Honour's application of section 108(3) was clearly correct. 75 As to the second category of evidence as defined by his Honour, - see paragraph 73 hereof, - his Honour ruled: "I come then to the second category of evidence, that is, evidence as to how Mr. Stacey came to tell the police what he saw and heard, notwithstanding his fear if he did so. This is a critical element in the explanation for the delay of seven months relied upon by the accused as discrediting the account of events given in the witness's evidence here. It is, if accepted, the resolution of a dilemma which had existed for that period of time, a resolution activated by an approach to Sergeant Buckley for guidance and the advice and assurance that Sergeant Buckley gave. The evidence is admissible in re-examination, whether adduced from Mr. Stacey, from Sergeant Buckley or from both. The evidence which explains adverse evidence adduced in cross-examination of a witness is admissible in re-examination, whether adduced from the witness or from another witness ( Claim v C(?) ), Sperling J, 27 June 1996 (unreported). It does not matter that the evidence goes only to the credit of the witness, as this does. Evidence in re-examination is a statutory exception to the credibility rule (s 108(1) )." 76 I confess to some difficulty in understanding the transcribed proposition that: "The evidence which explains adverse evidence adduced in cross-examination of a witness is admissible in re-examination, whether adduced from the witness or from another witness ( Claim v C(?) ), Sperling J, 27 June 1996 (unreported). It does not matter that the evidence goes only to the credit of the witness, as this does. Evidence in re-examination is a statutory exception to the credibility rule (s.108(1) )." 77 The reference which follows, and which has been transcribed as : "(Claim v C(?)), Sperling J, 27 June 1996 (unreported)" is in fact a reference to an evidentiary ruling given by his Honour on that date in connection with proceedings before his Honour and a Jury in the Common Law Division of the Supreme Court: McClean v Commonwealth of Australia. 78 In that particular ruling his Honour admitted, as part of Mr. McClean's own re-examination, certain letters, the contents of which were said to be relevant to Mr. McLean's state of mind at a certain time; it having been put to Mr. McClean in cross-examination that his true state of mind had been otherwise. 79 Sperling J reasoned, in connection with that evidentiary ruling, as follows: "1. At common law, the party who called the witness could adduce other evidence to qualify or explain matters which emerged in cross-examination of the witness, for the same purpose as that for which questions could be asked of the witness in re-examination. The rule related both to oral evidence and documents. The cases cited in Odgers: Uniform Evidence Law as demonstrative of the position at common law are ……… [and his Honour included a number of citations not now reproduced]. The evidence now sought to be adduced is within the ambit of the common law principle. 2. Where a statute admits of a wider and a narrower construction, a construction consonant with the common law is to be preferred: ………. [and his Honour included a number of references which are not reproduced here]. 3. The phrase 'evidence adduced in re-examination' in s 108(1), narrowly construed, would be confined to oral evidence adduced from the witness by way of re-examination. However, the phrase is capable of being construed more liberally to encompass evidence that certain documents came to the witness's attention at a certain time and the tender of those documents. That, it seems to me, would be 'evidence adduced in re-examination'. The construction imputes a flexibility to the word 'in' which it will accommodate. The totality of the oral and documentary evidence could then be seen as having been adduced 'in' re-examination, without doing violence to the use of the word. Since the more liberal construction is consonant with the common law and the narrower construction is not, the more liberal approach is to be preferred. The proposed evidence is, accordingly, admissible." 80 This reasoning is questioned by the learned authors of Anderson, Hunter and Williams: The New Evidence Law at paragraph 108.15. It is unnecessary for present purposes to pursue that line of questioning because in McClean it was the witness whose credibility had been impugned in cross-examination who was being re-examined when the admissibility through him of non-oral material arose for consideration. 81 In the present case the question for Sperling J was not whether Mr. Stacey could explain in re-examination what he had told Sergeant Buckley. The question was whether Sergeant Buckley could give in-chief what Mr. Stacey had told him. 82 Mr. Stacey was clearly entitled, in my opinion, to give in re-examination evidence explanatory of the 7 months' delay of which Sperling J speaks in the passage quoted at paragraph 73 hereof: s108(1). The evidence of Sergeant Buckley was relevant in the sense contemplated by section 55 of the Evidence Act, because it was capable of affecting rationally the assessment by the jury of the probability of a fact in issue, namely, the existence of a credible explanation for that 7 month delay. That credible explanation, as asserted by Mr. Stacey, was evidence adduced in his re-examination. I can see no reason why, if the credibility rule did not apply to the adducing in re-examination of Mr. Stacey's explanation, that rule should exclude relevant corroborative evidence. 83 It is on this basis that I would accept as having been properly admitted Sperling J's second category of evidence from Detective Sergeant Buckley. 84 I would not uphold Ground 2. Ground 3 85 Sperling J's judgment on this matter is both brief and clear. It is convenient to quote in full its substance: "My reasons for declining to leave manslaughter to the jury are as follows. The acts relied on by the Crown consist of a lunging action with a knife causing two deep stab wounds to the chest. Such actions strongly imply intention to kill or cause grievous bodily harm. To my mind the only serious issue in relation to the charge of murder is whether Mr. Sleiman is the true culprit. Counsel for Mr. Sleiman submitted that in cases of death by knifing or stabbing there is the potential for ambivalence in relation to intention. He submitted that it would be open to the jury to find that the accused's conduct amounted to an unlawful and dangerous act, but lacked the requisite intention for murder. In Pemble v The Queen (1971) 124 CLR 107, Sir Garfield Barwick referred to a trial judge's "duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. Manslaughter by an unlawful and dangerous act is not a basis upon which the jury could find for the accused in relation to the charge of murder". Justice Menzies said at page 133, "Counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. Manslaughter by an unlawful and dangerous act is not a defence to a charge of murder". Pemble does not stand as authority for a requirement to leave manslaughter by an unlawful and dangerous act to the jury whenever murder is charged, nor as to any circumstances in which a trial judge may be bound to leave manslaughter by an unlawful and dangerous act to the jury where the crime charged is murder. No other authority was cited in support of the submission that manslaughter by an unlawful and dangerous act should be left to the jury in this case. The submission by counsel for Mr. Sleiman is, in effect, that if the jury is not satisfied that Mr. Sleiman stabbed the deceased with the requisite intent to satisfy the charge of murder, the jury should have the opportunity of convicting Mr. Sleiman of manslaughter. I do not see how that can advantage the accused unless the jury was to take a compromise approach contrary to law. The court should be cautious about providing an opportunity for such an approach." 86 In my opinion his Honour was correct to decline the application to leave manslaughter to the jury. The appellant's trial was conducted from start to finish upon, and only upon, the basis that he had not stabbed Mr. Burton at all. It was never his case that, should he be disbelieved on that score, then he did not intend either to kill or to inflict grievous bodily harm; and given the nature of the stab wounds, it is not difficult to understand why he did not ever propound such an alternative case. 87 The proposition, now advanced, that the jury might properly have found that the appellant struck the stabbing blows, but without the intent necessary for murder because the jury might have found that there was some, so to speak, novus actus interveniens on the part of Hassan Kalache, is in my opinion so far-fetched that it could not properly have been left to the jury. 88 I would not uphold Ground 3. Conclusion and Orders 89 In my opinion none of the four Grounds of Appeal has been made good. 90 I would dismiss the appeal against conviction. 91 DUNFORD J: In this matter I have had the opportunity of reading in draft the judgments of Sully and Kirby JJ. I agree that for the reasons given by Sully J the appeal should be dismissed. I also agree with the additional observations of Kirby J in relation to grounds 1 & 4. 92 KIRBY J: I have had the advantage of reading the draft judgment of Sully J. I agree with the order proposed and with the reasons provided. I should, however, like to make certain additional observations in respect of Grounds 1 and 4. It is convenient to begin with Ground 4. Ground 4 93 The appellant was found guilty of murder on 9 June 1999. He was sentenced on 27 August 1999. He filed a Notice of Appeal on 2 September 1999. On 18 October 2002, he sought to add the following additional ground of appeal: "4. The conviction of the appellant is unsound having regard to the confession made since the trial by the co-accused Hassan Kalache to the murder; there being at least a significant possibility that the jury acting reasonably, had this evidence been before it, would have acquitted the appellant." 94 The confession of Hassan Kalache was made by affidavit of 21 August 2002, prepared by Mr Kekatos, the solicitor for the appellant. The affidavit was later revised on 10 October 2002, correcting typographical errors. 95 The circumstances in which the affidavit was prepared are important. Mr Sleiman's appeal was fixed for hearing in the Court of Criminal Appeal on 11 June 2002. In May 2002 Mr Kekatos received a telephone call from Mr Fadi Sleiman, the appellant's brother. The conversation, according to Mr Kekatos, was in these terms (substituting initials for those participating in the conversation): (affidavit J Kekatos 29.12.02, para 23) "FS: 'Jim can you go out and see Hassan Kalache, he needs to speak to you?' JK: 'What about?' FS: 'I don't know he just asked me to tell you, I think it is in relation to Emad's case.' JK: 'OK.'" 96 I should interpolate that on 1 March 2002 Hassan Kalache had been found guilty of the brutal murder of Wassim Chedade. On 31 May 2002, he had been sentenced by Dowd J to 22 years imprisonment with a non-parole period of 17 years. 97 As a consequence of Fadi Sleiman's request, Mr Kekatos saw Hassan Kalache at the Metropolitan Remand Centre at Silverwater on 6 June 2002. The conversation, according to Mr Kekatos, was in these terms (again substituting initials for the names of the participants): (para 24) "JK: 'What do you want?' HK: 'I want to give evidence on behalf of Emad.' JK: 'What do you want to say?' HK: 'That I did the stabbing.' JK: 'Can you prepare a statement for me setting out what happened?' HK: 'No I cannot you prepare it and I will sign it.' JK: 'What do you want to say, can you give me a description of what happened?' HK: 'I don't know, just that I stabbed him and I want to tell the truth about what happened.' JK: 'I will prepare it and get you to sign it.' HK: 'If I give the statement, will I be charged for it?' JK: 'I don't think so, you will need to get advice from your solicitor.' HK: 'I better not get charged if I give the statement.' JK: 'I don't think you will.'" 98 Mr Kekatos made application the next day to the Registrar of the Court of Criminal Appeal to vacate the hearing date. He foreshadowed an affidavit from Hassan Kalache. The affidavit, in its final form, was in these terms: "1. On 18 May 1997 I stabbed Jason Burton twice with a knife to the abdomen outside the General Bourke Hotel. 2. Jason Burton died as a result of the injuries he sustained. 3. I was charged with the murder of Jason Burton and stood trial before his Honour Justice Sperling and a jury of 12 and at the conclusion of the prosecution evidence his Honour directed the jury to find me not guilty of the murder. 4. I have not been prepared in the past to give evidence about what occurred on the night of the murder but I have come to the decision that the truth should be told." 99 Hassan Kalache, along with the appellant, had been charged with the murder of Jason Burton. On 7 May 1999 he had been acquitted by direction. He was, at the time of his confession, as Sully J observed, safe from prosecution. In written submissions, counsel for the appellant said this: "4. Although the confession by Kalache may well have been regarded with a high degree of cynicism by the jury having regard to the fact that Kalache was acquitted by direction of the trial judge at the conclusion of the prosecution case and was therefore no longer amenable to justice, it would have been virtually impossible to ignore. It was powerfully corroborated by the dying declaration of the deceased, who when asked 'who did this to you' answered: 'that wog cunt Kalache.'" 100 Taking the view most favourable to the appellant, a number of matters gave the confession plausibility. They are: · First, according to the evidence given by Hassan Kalache on this appeal, the altercation inside the hotel, which preceded the stabbing, was provoked by the deceased pinching the bottom of Hassan Kalache's girlfriend. The appellant said that he was not involved. It was Hassan Kalache's fight. There was, on the other hand, a body of eye-witness evidence called at the trial that suggested that the argument inside the hotel was between the appellant and the deceased (supra, para 6[i]). · Second, there is perhaps support for the version of Hassan Kalache, on the aspect of the altercation, in the video surveillance material. At 4.02.21 a.m. the deceased and Hassan Kalache left the hotel together. They made their way to the grassed area where the stabbing took place. At 4.02.49 a.m. the appellant and Mr Hammond then left the hotel. · Third, at the beginning of the fight outside the hotel the eye-witness, Mr Stacey (the Security Manager), saw Hassan Kalache push Jason Burton. · Fourth, at the end of the fight, once Jason Burton had run back inside the hotel, Mr Stacey saw Hassan Kalache bend to pick up the knife, it having dropped to the ground. · Fifth, once inside the hotel Mr Stacey attended to Jason Burton, who was bleeding. He said repeatedly: "I'm going to die. I'm going to die." Mr Stacey then asked: "Do you know who did this to you?" Jason Burton responded: "That wog cunt Kalache." The Test to be Applied 101 The authorities have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in Regina v M [2002] NSWCCA 66 at paras 61-64. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTeirnan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). According to these authorities, the issue should be approached on two levels. The first was described by Barwick CJ in these terms: (at 518) "It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged." 102 Where the further evidence meets that standard, it is unnecessary to consider whether such evidence is "fresh evidence", that is evidence available only after the trial, which could not reasonably have been available at the trial. Barwick CJ said this: (at 518-519) "Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish." 103 Where the evidence does not meet that standard, issues will arise as to whether the evidence is "fresh". Barwick CJ said this: (at 519) "But if the material before the court of criminal appeal does not convince the court of such a miscarriage, or if the appellant's claim is only for a new trial, the fact that the new material is not wholly fresh evidence in the sense I have described will be material. I have already pointed out that the non-production by the accused of evidence available to him at the trial - available actually or constructively in the sense I have mentioned - will not make the trial in any sense unfair. But there is the situation where, although the trial so far has been fair, evidence is discovered after the verdict which could not reasonably have been available at the trial: that is to say, fresh evidence is produced to the court of criminal appeal. The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, is that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take." 104 Giles JA in Bikic, identified certain difficulties in the application of that test (paras 276-282), but felt obliged to follow it (para 283). His Honour said this, in the context of what I have described as the first level: (para 281) "281. ... The ultimate question is miscarriage of justice. When the evidence is not fresh evidence, but was known and deliberately not called at the trial, it can be said with some force that there was not a miscarriage of justice. Perhaps evidence of impeccable credibility and of manifest cogency to innocence or such doubt that the accused should have been acquitted will show miscarriage, but miscarriage must be assessed against the features of our system of criminal justice in which the autonomy of the parties to the trial process is valued (see Doggett v R (2001) 182 ALR 1 at 2-3 Gleeson CJ)." 105 One can imagine cases where the further evidence is of impeccable credibility or manifest cogency to innocence or doubt. DNA evidence may have that quality. A confession, even where the person who confessed may yet be charged, will rarely have that quality. It is not unknown that people confess to crimes they did not commit. 106 Here, there is, in my view, no miscarriage in the first sense. Mr Kalache's affidavit and evidence cannot be viewed as having impeccable credibility or manifest cogency to innocence or doubt. The chronology, and the cynicism which the appellant's counsel frankly acknowledged, deprive it of that quality. 107 I therefore pass to the second level, and whether the evidence may be regarded as "fresh evidence". Counsel for the appellant made the following submission: "3. The confession by Kalache constitutes fresh evidence not available to the appellant at trial. This is so notwithstanding that the appellant must have known that Kalache was the murderer. Kalache's unwillingness to come forward earlier was not something which was in the power of the appellant to alter." 108 The appellant did not give evidence at the trial. However, he gave evidence on the appeal. He said that, after he left the hotel, he walked towards the club carpark. He came within five metres of Jason Burton (the deceased) and Hassan Kalache. He saw Mr Burton throw a punch. He also saw the deceased and Kalache wrestle. It was dark. The lighting was poor. He saw Jason Burton then run back into the hotel. He realised at that moment that he had been stabbed (T.13). He recognised that Hassan Kalache could have been responsible. He did not actually see Mr Kalache stab the deceased. Shortly after it happened, however, fifty people were screaming: "He's been stabbed. He's been stabbed." Mr Sleiman said this: (T.14) "Q. When did you become aware, if at all, who stabbed Jason Burton? A. I knew the whole time. Q. You say you knew the whole time? A. Yeah. Q. You told the court you did not see him being stabbed? A. I did not see it but I knew after. Q. How soon after? A. After he ran off." 109 In response to questions from Dunford J, the appellant added: (T.58) "Q. Well when was it that you first found out that it was Kalache that had stabbed him? A. I can't remember, it could have been back then. Q. How did you find out that it was Kalache that had stabbed him? A. He could have told me. Q. Kalache would have told you? A. Could have told me back then." 110 The appellant, his then wife Leanne Cassar, and Hassan Kalache, moved to the carpark. The appellant's cousin, Mahmoud Sleiman, was waiting in a car. They drove home. The appellant gave the following evidence concerning that journey: (T.58) "Q. On the way home in the car was there any talk about the stabbing? A. No. Q. None at all? A. No. Q. You knew that someone had been stabbed? A. Yes." 111 Elsewhere he said this: (T.63) "Q. Why didn't you ask? A. Because it has nothing to do with me. Q. You were in the same car with him, correct? A. Yes. Q. You were leaving the scene? A. That is correct. Q. You were leaving the scene with him, correct? A. Yes. Q. Your wife is next to you or near you in the car, correct? A. Yes. Q. For all you know one of the people in the car has just stabbed a man to death? A. But maybe he did not want to tell me in front of the people in the car." 112 Mr Hassan Kalache gave evidence on the appeal. He described the journey home as follows: (T.83-84) "Q. Who did you take off with? A. A few - my friends. Q. Can you tell us who? A. No. Q. Was Emad Sleiman with you? A. No. OBJECTION SULLY J: Not on this topic, Mr Kintominas. KINTOMINAS: Q. Can you tell me how many people were in the car? A. Four of us. Q. Was there any discussion with the people in the car about what had happened? A. There was, but I can't recall." 113 The evidence of Hassan Kalache could not be completed on the first day (6 November 2002). He was recalled when the matter resumed (17 February 2003). On that occasion he said this: (T.140-1) "Q. When you got in the car, Emad Sleiman was there? A. Yeah. Q. Did you say anything about what had just happened to Mr Burton? A. Yeah, I told him. Q. What did you say? A. I told him I stabbed him. Q. Did he say anything back? A. I can't remember. Q. Did the car wait there or drive off? A. No, it took off. Q. It took off? A. Yeah. Q. You mean in a hurry? A. Yeah. Q. To get away? A. Yeah." 114 His evidence continued: (T.141) "Q. But, there was discussion; you did tell them that you had stabbed him? A. Yeah. Q. And Emad Sleiman was in the car? A. Yeah." 115 Mr Kalache was reminded of his earlier evidence (T.141). He acknowledged the inconsistency. The truth was that Emad Sleiman was in the car with him. Common sense would suggest that the stabbing was discussed, and discussed at length. The appellant, although denying that he discussed the issue with Hassan Kalache on the journey home, thought that he may have discussed it at some time. 116 The appellant chose at the trial to fight the case in a particular way. He said this: (T.36) "A. When I used to see my counsel all they had, all they ever told me was I would end up walking because the dying man's words, all Burton's last words were, 'It was Kalache.' I wasn't going to say anything because it might end up against me if I ended up in gaol, I don't end up walking, like I did now and I might end up in gaol, I always thought I'd end up going home in trial because of dying man's words, because of Jason Burton's last words. DUNFORD J: Q. Did you tell your counsel, 'I didn't do it, I saw Kalache do it'? A. No. My counsel asked me, because he asked me a couple of times, he told me, 'Let me fight it on the dying man's words and you'll walk', and I refused. I refused a couple of times. Q. You refused what? A. To let him use the evidence of Jason Burton against Kalache, in court. Q. I'm sorry, say that again. You refused to let him -- A. He wanted to use that evidence against Kalache, the dying man's words, and he said, he promised me if he used it that I would walk." 117 After Mr Kalache had been acquitted, the appellant moderated his instructions to a degree. He said this: (T.37) "Q. You heard him in his final address to the jury tell the jury about the dying man's words, 'Kalache', didn't you? A. Yes. Q. So it is not true, is it? Is it correct to say that you refused to let your counsel use the dying man's words? A. He used them in the summing up, I think that is correct. I think he used them in the summing up, that was after Hassan Kalache went home." 118 One is left with the impression that the appellant gave no instructions at the trial as to what he knew of Hassan Kalache's role, what was said on the journey home, and the confession made by Kalache then or at some other time. It is unsurprising, therefore, that the view formed by Mr Hill, the solicitor for Mr Sleiman at the trial, was as follows: (T.193) "Q. Did anything else come to your attention, apart from what Mr Kalache told you in the context of your affidavit, did anything else come to your attention which caused you to form the view that Hassan Kalache was a witness who might appropriately be called to give evidence in the trial to assist your client? A. Well no, but you must bear in mind that I had another solicitor that instructed throughout the fair majority of Mr Sleiman's trial, Mr Stephen Dack." 119 Mr Hill was Mr Dack's master solicitor. He added: (T.193) "Q. You would anticipate that Mr Dack would be alive to any circumstances arising which might suggest that Mr Hassan Kalache was a witness who could appropriately and conveniently be called to assist your client in his case? A. Yes. Q. That didn't occur? A. No." 120 Before his directed acquittal, Hassan Kalache was an "associated defendant" for the purposes of s17(3) of the Evidence Act 1995 (the Act), being jointly tried with the appellant. As such he was not compellable. He ceased to be an associated defendant, and became compellable, once the trial against him had been completed. Accepting that the incident was discussed on the journey home, the representation by Hassan Kalache (that he had stabbed Jason Burton) was obviously made at a time that it was fresh in his memory. Evidence of that representation was admissible if Hassan Kalache had been, or was to be, called to give evidence (s66(2) of the Act). That Mr Sleiman did not provide those instructions to those defending him may suggest either that Hassan Kalache did not confess (and that because he had not stabbed Jason Burton), or that the appellant deliberately withheld that information from those representing him. Assuming the latter, being the inference most favourable to Mr Sleiman, there is an issue, to my mind, whether the proposed evidence of Hassan Kalache can be regarded as fresh evidence. 121 In Ratten v The Queen (supra) Barwick CJ made the following observation: (at 517) "As Smith J rightly said in expressing the reasons of the Full Court in this case, 'Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence'. It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial." 122 The Chief Justice added: (at 517) "It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial." 123 In determining this issue great latitude must be extended to an accused as to what evidence could, with reasonable diligence, in his own interests, have had available at the trial. Barwick CJ added: (at 517) "But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial." 124 In Lawless v The Queen (supra) Mason J said much the same thing: (at 675) "... in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence." 125 It is unnecessary to resolve this issue. Assuming the evidence of Hassan Kalache can be regarded "fresh evidence", has the appellant demonstrated that there has been a miscarriage of justice? (cf R v "PLV" (2001) 123 A Crim R 194, per Spigelman CJ at 205 para 71). There will be a miscarriage of justice where there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it (Mason CJ, Mickelberg v The Queen (1989) 167 CLR 259 at 273). The issue is whether the evidence is capable of belief and likely to be believed (Gibbs CJ in Gallagher v The Queen (1985) 160 CLR 392 at 396). Is the Evidence Credible? 126 Emad Sleiman and Hassan Kalache are related. Mr Sleiman's sister is Mr Kalache's mother. They are the same age. They grew up together. They became friends. Mr Sleiman said he regarded Hassan Kalache as a close member of his family (T.35). Mr Kalache said the same thing (T.153). Hassan Kalache described their relationship in these terms: (T.167) "Q. Well, you stood trial with him, he is your uncle, and you knew he was never going to turn and point to you and say: 'I didn't do it, he did'? A. Yeah. Q. That demonstrates how strong the relationship is between the two of you, doesn't it? A. Yeah. Q. He is prepared to serve a sentence for murder when he didn't commit it, rather than point to you and say you did? A. That's right. Q. Is that right? A. That's right. Q. And you would be prepared to do exactly the same back again, wouldn't you? A. Yes. Q. And that's exactly what you are doing now, isn't it? A. No." 127 The appellant was convicted on 9 June 1999. He was sentenced on 27 August 1999. Hassan Kalache came forward on 6 June 2002, three years later. He did so, according to his affidavit, because he believed the truth should be told. His decision to come forward, and its timing, were, according to his evidence, unconnected with the sentence imposed upon him on 31 May 2002 for the murder of Wassim Chedade. At the time he saw Mr Kekatos (6 June 2002), he said that it was his belief that he could not be charged again with the murder of Jason Burton (T.115). He sought from Mr Kekatos, at their conference, an assurance that his belief was correct. Mr Kekatos gave that assurance. 128 Why, given the close relationship with the appellant, did Mr Kalache delay three years? Mr Kalache said this, in answer to Dunford J, referring to the affidavit prepared by Mr Kekatos in August 2002: (T.93) "Q. That's when you thought it wasn't right for him to be in gaol for something you did? A. That's right. Q. But he had been in gaol for what, three years at that stage for something that you did? A. That's right. Q. Did you think that was all right? A. No. Q. What made you change your mind? A. I don't know, I just felt, I had to do it then." 129 No pressure had been put on him by the family. When cross examined, Mr Kalache said this: (T.115) "Q. Why did you wait so long? A. For what? Q. To tell anybody? A. There was no need to tell anyone. Q. Well, your uncle was sitting in gaol, wasn't he? A. Yeah. Q. How long had he been in gaol roughly before the trial? A. Some time. Q. About 18 months? A. Yeah. Q. So, by this stage, he has been there two, two and a half going on three years, is that right? A. Yes. Q. For a murder that he did not commit? A. Yeah. Q. And you knew he had not murdered Mr Burton, is that right? A. That's right. Q. And you waited until his appeal came on before telling anybody that? A. Yeah." 130 The delay was the more puzzling because Mr Kalache said that, whilst he and the appellant were awaiting trial, he gave the appellant an assurance that "if the worst comes to the worst" he would say that "I did it" (T.185). Mr Kalache was asked the following: (T.186) "KIRBY J: Q. Did you think to yourself, this is after the conviction: Well the worst has come to the worst, I had better do what I said I would do? A. I never mentioned it to him. I mentioned it to his brother, not to him." 131 Mr Kalache acknowledged that he had not mentioned it to Mr Sleiman's brother for a long time (T.186). 132 The delay in coming forward is the more striking because there was significant contact between the appellant and Hassan Kalache after Mr Kalache's directed acquittal. In the period between 7 May 1999 (when Mr Kalache was acquitted) and 9 June 1999 (when the appellant was convicted) Hassan Kalache visited the appellant on the following occasions: 9 May 1999 16 May 1999 27 May 1999 29 May 1999 133 The appellant having been found guilty on 9 June 1999, Hassan Kalache continued to visit him. The gaol records revealed the following visits: 10 June 1999 11 June 1999 17 June 1999 20 September 1999 27 September 1999 21 November 1999 (Lithgow) 27 November 1999 (Lithgow) 23 January 2000 (Lithgow) 29 April 2000 (Lithgow) 134 The Chedade murder was committed on 1 July 2000. Hassan Kalache was arrested shortly thereafter. 135 The delay in Hassan Kalache coming forward would be incomprehensible if he knew after his directed acquittal that he was safe from prosecution. On that issue, his evidence was unsatisfactory and contradictory. When first called (6 November 2002), Mr Kalache said this in answer to Sully J: (T.96) "Q. You can take it from me that the day on which you were acquitted in Mr Justice Sperling's court was 7 May 1999. After you had been acquitted, did you get any advice as to whether or not the effect of the acquittal was that you could not be charged again with the murder of Mr Burton? A. No. Q. Did you have any understanding about that fact? A. No. Q. Did you later on discuss it with anybody? A. No. Q. Until you raised it with Mr Kekatos? A. Yep. Q. Just think about it for a moment. Are you saying that until you spoke to Mr Kekatos earlier this year you had no idea at all, one way or the other, whether you could be charged again with the murder of Mr Burton if you were to make the admission that you make in your affidavit? A. No." 136 The matter having resumed on 17 February 2003, Mr Kalache was cross examined. He gave the following evidence: (T.106) "Q. You just understood; well, once you are acquitted, once you are found not guilty, that's it, you can't be charged again, is that what you understood? A. Yeah. Q. And you understood that, that day you walked out of the courtroom, is that right? A. Yeah. Q. You didn't have to ask Mr Stratton, the Senior Counsel, to explain why you could not be charged again, did you? A. No. Q. You knew, did you, or you understood - believed - that, one, the jury foreman had said 'not guilty' about you, that was it - you were free? A. Yep." 137 Shortly thereafter, Mr Kalache withdrew that concession. He said that he must have misunderstood the questions. The issue was pursued by the Crown as follows: (T.107) "Q. Now you have suddenly realised; heck, I should have said, no, no I never knew whether I would be charged again - that wouldn't be the case? A. No. Q. What was it that you thought I was asking you about? A. I don't know. Q. You don't know? A. No. Q. Did you misunderstand my questions A. I think I did, yeah. Q. What did (you) think I was talking about? A. I don't know. Q. Why did you answer? A. I just did." 138 The account given by Mr Sleiman was no more plausible. He said this: (T.78-79) "DUNFORD J: Q. Do you know now that even if he admits stabbing Jason Burton, Hassan Kalache cannot be charged with that offence because he has already been acquitted of it? A. I did not know that till the Crown said it before when youse were talking before. Q. You did not know that until today? A. I knew - when I first got told about it I did not know. I have always thought he was going to get charged. Q. When did you first find out about it? A. I heard something about it a week or two ago. There was speculation he could get charged, or whatever. When you said it today, I knew. Q. Until a week ago you had no idea that was the case, is that what you tell us? A. Yes." 139 The account provided by Hassan Kalache to Mr Kekatos on 6 June 2002 was bereft of detail, as was his account when he gave evidence. There was, moreover, ample opportunity for collaboration between the appellant and Hassan Kalache. On many occasions they were in the same institution, although not necessarily in direct contact with each other. They were both at the Silverwater gaol between 23 May 2002 and 1 June 2002, being the period during which Hassan Kalache summoned Mr Kekatos, and gave instructions to prepare the affidavit. Members of the extended family regularly visited each throughout. 140 The Crown filed an affidavit of Ms Catherine Williams, solicitor. It attached a chronology. The chronology identified the occasions upon which the matter was mentioned or listed before the Court of Criminal Appeal. There were many postponements. The reasons given by the solicitors for the appellant were recorded on each occasion. It is apparent from this and other material that the appellant explored a number of possible grounds of appeal. The appeal was periodically postponed on the appellant's application to enable his representatives to obtain further evidence or provide further advice. The matter, as mentioned, was listed for hearing before the Court of Criminal Appeal on 11 June 2002. Evidence which had led to a previous postponement (on an issue of identification) could not be procured. Counsel had advised that an additional ground which the appellant wished to press could not responsibly be pursued. It was in this context that Mr Kalache came forward, asking to see Mr Kekatos, stating on 6 June 2002 that he would be prepared to swear an affidavit that he stabbed Jason Burton. The Court of Criminal Appeal hearing was again put off until November 2002. That sequence may suggest a connection between Mr Sleiman's perception of his receding prospects on appeal, and the sudden appearance of Mr Kalache as a witness. 141 There is a further matter which emerged late in the hearing of the appeal. Mr Kekatos was called to give evidence after Mr Kalache. He said that he first received instructions from the appellant on 19 October 2000. He saw the appellant at Silverwater on 20 November 2000. He prepared a letter to Mr Kintominas of counsel on 29 November 2000. The letter listed possible appeal points. It included the following: (T.196) "Q. And in that letter you wrote to me you say 'We refer to the above matter and confirm that the writer attended Silverwater Gaol on 20 November 2000'? A. That's correct. Q. Then you say 'We list hereunder our client's view of the appeal points'? A. That's correct. Q. There are eight matters listed by number and para 6 says 'We advise that Hassan Kalache, the co-accused at the hearing, is prepared to give a statement in respect of his guilt, copy of which we shall forward to you shortly'? A. That's correct." 142 That evidence is completely at odds with the evidence of Mr Kalache, as set out above. Nor does it sit comfortably with the evidence of the appellant. It makes the delay in Hassan Kalache swearing his affidavit even more odd. 143 The fresh evidence proposed by the appellant must be viewed in the context of the Crown case, as described by Sully J at para 6 (supra). That case included a recorded admission by the appellant to his then wife in these terms: "The night, the night I stabbed that bastard to death." 144 In the context of that case, I do not believe that there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant. I do not regard the evidence of Hassan Kalache as likely to be believed by a jury. Ground 1 145 Ground 1 was in the following terms: "1. His Honour misdirected the jury as to the dying declaration of the deceased." 146 The passage which is the subject of complaint is set out in the judgment of Sully J (supra, para 59). It is convenient to again recite certain familiar facts. The Security Manager of the hotel, Mr Stacey, cradled Jason Burton after he had re-entered the hotel, moments before he lost consciousness. Mr Stacey said: "Do you know who did this to you?" Jason Burton replied: "That wog cunt Kalache", whereupon his eyes began to roll back. 147 Particular complaint is made about the following remarks by his Honour: "I pause here to say something about Mr Stacey's evidence that he asked Mr Burton who did it and that Mr Burton said 'that wog cunt Kalache'. Taken at its highest, this is evidence completely at odds with the Crown case that it was Mr Sleiman who stabbed Mr Burton. However, that is not the only construction which can be placed on that piece of evidence. Mr Burton was seriously injured; indeed he was dying. He was already losing consciousness at that stage. What Mr Stacey heard might have been the first half of a sentence. If that is so, one could only speculate as to what Mr Burton might have wanted to say Mr Kalache had done or what he might have wanted to say about Mr Sleiman. Speculation of that kind is simply not permissible; or Mr Burton might have got the names of the two men confused; or he might have been so confused in his semi-conscious state that he really could have said anything." 148 From the viewpoint of the appellant, the dying declaration of Jason Burton was important evidence. If it was accurate, Mr Sleiman was entitled to an acquittal. Indeed, he was entitled to be acquitted even if it might be accurate. The appellant's complaint is that the effect of his Honour's commentary was to emasculate that evidence. The following was said in written submissions: "13. His Honour erred in seeking to have the jury approach the dying declaration on the basis that it might be suspect. This subtly involved reversing the onus of proof. The appellant was entitled to rely on the dying declaration and it was for the Crown to prove to the jury's satisfaction that it could not be relied on. If the deceased had instead said that 'wog cunt Sleiman', it would have been seen as a piece of evidence almost conclusively demonstrating his guilt. The nomination of Kalache as the culprit should have been given the same weight by the jury as in any trial where the deceased makes a dying declaration that it was the accused who delivered the fatal blow." 149 However, I believe that submission overstates the position, and, indeed, demonstrates the problem with this evidence. The statement of Jason Burton was a representation that he had been stabbed by Hassan Kalache. It was a perception that he was in a position to make, and hence was firsthand hearsay (s62). Jason Burton was dead and therefore unavailable (s4(1)(a) Dictionary). The evidence was admissible as an exception to the hearsay rule (s65(2)(b) and (c)). Had the deceased said "that wog cunt Sleiman", counsel for Mr Sleiman could have requested a warning under s165(1)(a) that the evidence may be unreliable. The Judge, in that circumstance, would have been obliged to warn the jury that the statement may be unreliable (s165(2)(a)), informing the jury of the matters which may cause it to be unreliable (s165(2)(b), and urging the need for caution (s165(2)(c)). 150 Had Mr Sleiman been named, a judge would have been obliged to tell the jury that Mr Burton, in making his statement, was not under oath, and in that respect the statement was different from other evidence before them. The judge, nonetheless, might advert to the reason why such evidence has traditionally been received, namely that the circumstances were thought to be the equivalent of an oath. That is, as explained by Chief Baron Eyre in R v William Woodcock ((1789) 1 Leach 500; 168 ER 352): "... they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice." 151 An important aspect of the warning would be that the accused has had no opportunity to cross examine the deceased. He therefore could not ask whether, before that evening, he had known Mr Sleiman or Mr Kalache. He could not explore whether he may have confused one for another, or may have been referring to someone else altogether. He could not, by questioning, explore whether the statement was incomplete, or whether he intended to add something (cf Cross on Evidence, 6th Ed., J D Heydon, para 33310 at page 937). 152 Here, the Crown did not request a warning under s165(2) as such, although the Crown did make the following comment at the time of the directed acquittal: (supra, para 57) "CROWN PROSECUTOR: In my submission the jury should be told some very short reasons or short facts - I am not sure - it is a bit difficult, but in my submission because of that it is going to be left up in the air as to how that comes about, and something should be said about that." 153 His Honour, shortly after, made the following remark: (supra, para 57) "First of all I really think it would be wrong at this stage for me to say anything, but I will bear in mind as to whether there might not be something that ought to be said in the course of the summing-up that avoids a wrong implication arising from the fact that Kalache was acquitted notwithstanding that evidence, so it is a matter you might like to raise at a later time Mr Crown. 154 His Honour was entitled to warn the jury to exercise caution when dealing with hearsay, although no request had been made by the Crown (s165(5)). A judge should hesitate to give a warning adverse to the accused in the absence of such a request (R v Salama [1999] NSWCCA 105, para 86). Where, as here, the evidence is exculpatory, it may be more appropriate to simply identify issues which the jury should address, rather than urge caution before accepting that evidence (cf R v Rose [2001] NSWSC 1060, Kirby J; R v Rose (2002) 55 NSWLR 701 per Wood CJ at CL and Howie J at 710-714; Smart AJ at 714-721). It was an important direction. It would have been useful had it been discussed with the parties before the summing up. Nonetheless, as framed, it did no more than identify issues which the jury should be aware of when dealing with hearsay (s165(1)(a)). Counsel for Mr Sleiman did not seek any redirection. I do not believe error has been demonstrated. 155 Counsel for the appellant further contended that his Honour should have given a number of specific directions. He said this: "12. His Honour should have directed the jury in respect of the dying declaration, that unless they were persuaded by the rest of the evidence of the accused's guilt beyond reasonable doubt so as to negate any reasonable possibility that the deceased had believed that Kalache and not the appellant had caused his death, they should acquit the appellant." 156 I do not believe a direction in those terms would have been appropriate. What the Crown was required to negate was any reasonable possibility that Jason Burton was stabbed by someone other than the appellant, including by Hassan Kalache. Experienced counsel did not seek such a direction. The summing up as a whole conveyed that requirement in any event. 157 Further, counsel for the appellant urged a direction in the following terms: (written submissions para 14) "... a specific direction reinforcing the submission made by the defence counsel to the effect that if there was any reasonable possibility in the jury's mind that it was Kalache who had stabbed the deceased, then they were not to be deterred from acting on that reasonable possibility and acquitting the appellant by the fact that the judge had directed them to find Kalache not guilty." 158 Such a direction may have been appropriate, and useful, had it been requested. However, no such request was made. I would apply Rule 4. 159 For these reasons, I believe that the appropriate order is that the appeal against conviction should be dismissed. Reg v Emad Sleiman CHRONOLOGY 18 May 1997 Date of murder of Jason Burton 8 January 1998 Emad Sleiman and Hassan Kalache arrested and charged with murder of Jason Burton 22 March 1999 Arraignment of Sleiman, Kalache & Cassar 31 March 1999 New trial started after first one aborted 7 April 1999 Contempt of court charge against Sleiman 7 May 1999 Verdict of acquittal by direction in relation to Kalache 9 June 1999 Sleiman verdict of guilty to murder 27 August 1999 Sleiman sentenced 2 September 1999 Date notice of appeal filed 13 December 1999 CCA call-over – Ross Hill appears on behalf of appellant. Matter has just been assigned. 21 February 2000 CCA call-over – Ross Hill appears 17 April 2000 CCA call-over – Nayall of Ross Hill & Assoc. appears. Paul Byrne SC has been briefed. 22 May 2000 CCA call-over – Mr. Nayall appears 19 June 2000 CCA call-over – No appearance on behalf of appellant 10 July 2000 CCA call-over – No appearance on behalf of appellant. Ross Hill no longer acting 24 July 2000 CCA call-over – No appearance. Bouzanis & Kekatos now solicitors on record. 14 August 2000 CCA call-over – P. Kintominas appears. He is awaiting material to make advice. 9 October 2000 CCA call-over – No appearance on behalf of appellant. 30 October 2000 CCA call-over – No appearance on behalf of appellant. 27 November 2000 CCA call-over – Mr. Kintominas appears. Brief delivered but parts of summing up missing. 19 February 2001 CCA call-over – Mr. Skoudos for Kintominas – Hearing date set for 29 May 2001. Registrar orders AWS due 28.4.01. CWS due 4.5.01 23 April 2001 CCA call-over – Mr. Kintominas. Extension of one week for filing subs due now 30 April 2001. Hearing date confirmed. 21 May 2001 CCA call-over – Mr. Kintominas makes application for adjournment on basis that affidavit prepared but not witnessed. 29 May hearing date vacated. Any affidavit and amended grounds to be filed by 15.6.01. 18 June 2001 CCA call-over – Mr. Skoudas appears – no grounds – problems with preparation. 23 July 2001 CCA call-over – No appearance on behalf of appellant. Grounds of appeal to be filed by 24.8.01 27 August 2001 CCA call-over – Mr. Skoudas appears. Grounds of appeal to be filed by 21.9.01. 24 September 2001 CCA call-over – Mr. Kintominas appears. Hearing date set for 6 November 2001. Affidavits and amended grounds by 5.10.01. AWS due 12.10. CWS due 26.10. Two conventional grounds of appeal to be added. Fresh evidence/Accused not give evidence. 15 October 2001 CCA call-over – Mr. Packer appears. No new grounds or submissions forthcoming. 18 October 2001 CCA call-over – Mr. Kintominas appears. Amended grounds one ground – affidavit by Crown witness alleging undue police influence – need affidavit to put on ground. Kintominas wants stood over one week to confirm but Crown will not have time to respond to fresh evidence so hearing date of 6 November had to be vacated. Registrar states matter not to be listed until all material filed. 26 November 2001 CCA call-over – Mr. Kintominas appears – still not completed paper-work. 4 February 2002 CCA call-over – Mr. Kintominas appears. Grounds to be filed by 1.3. Registrar cautions may go to a special call-over to show cause if not ready. 4 March 2002 CCA call-over – Mr. Kintominas appears and indicates that he needs to look at video in relation to main ground. 18 March 2002 CCA call-over – Mr. Kintominas appears – will contact Crown to view video. 8 April 2002 CCA call-over – Mr. Kintominas appears. Amended grounds of appeal and written submissions filed in the CCA Registry. Hearing date of 11 June 2001 set. 7 June 2002 Hearing date of 11 June 2002 vacated on application of appellant on basis that Kalache had contacted his instructing solicitor and has expressed a desire to make an affidavit claiming that it was he who stabbed the victim and not Sleiman 17 June 2002 CCA call-over – No appearance on behalf of appellant. 8 July 2002 CCA call-over – Mr. Kintominas appears. He is trying to obtain affidavit from Kalache and further AWS. Affidavit to be filed by 2.8. 5 August 2002 CCA call-over – Mr. Kintominas appears. Affidavit to be filed by 23 August 2002 21 August 2002 Date affidavit of Hassan Kalache sworn at Goulburn. 26 August 2002 CCA call-over – Mr. Kintominas appears. Listed for hearing on 6 November 2002. AWS. stat. dec. and amended grounds by 27 September. CWS due 25 October. 21 October 2002 Appellant's written submissions filed. ********** Last Modified: 08/28/2003 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.