Reported Decision : 60 NSWLR 86 New South Wales Court of Criminal Appeal CITATION : REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37 HEARING DATE(S) : 4 and 5 November 2003 25 and 31 March 2004 JUDGMENT DATE : 6 May 2004 JUDGMENT OF : Mason P at 1; Wood CJ at CL at 1; Sully J at 1 DECISION : Conviction quashed; new trial ordered; sentence adjusted. CATCHWORDS : Criminal law - sexual offences - identification issues - Evidence Act, s116 - rule 4 - directions as to meaning of "beyond reasonable doubt" - impact of media publicity upon fair trial - directions about suspect's refusal to answer questions in ERISP - directions about lies - consciousness of guilt directions - complainant's evidence as to belief of accused's guilt in matter involving inference - juror misconduct - unauthorised view and experiment - admissibility of evidence of same - appropriate directions to juries prohibiting independent enquiries (D) Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116 LEGISLATION CITED : Crimes (Forensic Procedures) Act 2000, s13 Crimes (Sentencing Procedure) Act 1999, s59 Jury Act 1977, ss68, 68A Dhanhoa v The Queen (2003) 77 ALJR 1433 Domican v The Queen (1992) 173 CLR 555 Edwards v The Queen (1993) 178 CLR 193 Ellis v Deheer [1922] 2 KB 113 Green v The Queen (1971) 126 CLR 28 Kozul v The Queen (1981) 147 CLR 221 R v Adamson NSWCCA, 26 November 1992) R v Amyouni NSWCCA, 18 February 1988 R v Andrew Brown (1907) 7 SR(NSW) 290 R v Astill NSWCCA, 17 July 1992 R v Ball [1961] SR(NSW) 37 R v Bates [1985] 1 NZLR 326 R v Birks (1990) 19 NSWLR 677 R v Chami, M Skaf, Ghanem, B Skaf & Ors [2004] NSWCCA 36 R v Domican (No 3) (1990) 46 A Crim R 428 R v Emmett (1988) 14 NSWLR 327 R v Woolcott Forbes (1944) SR(NSW) 332 R v Fuge (2001) 123 A Crim R 310 R v Gillespie (unreported, Court of Appeal, NZ, 7 February 1989 R v Herring NSWCCA, 29 November 1998 R v Inamata [2003] NSWCCA 19 R v ITA [2003] NSWCCA 174 R v K [2003] NSWCCA 406 CASES CITED : R v Lewis [2003] NSWCCA 332 R v Locchi (1991) 22 NSWLR 309 R v Marshall (2000) 113 A Crim R 190 R v Marsland NSWCCA 17 July 1991 R v Maund, NSWCCA, 16 December 1993 R v Miah (1997) 2 Cr App R 12 R v Minarowska and Koziol (1995) 83 A Crim R 78 R v Mirza [2004] 2 WLR 201 R v Neilan [1992] 1 VR 57 R v Pan [2001] 2 SCR 344 R v Quinn [1962] 2 QB 245 R v Reeves (1992) 29 NSWLR 109 R v Rinaldi and Kessy (1993) 30 NSWLR 605 at 610-11 R v Rudkowsky NSWCCA,15 December 1992 R v Bilal Skaf, Mohamed Ghanem, Belal Hajeid [2004] NSWCCA 74 R v Southammavong [2003] NSWCCA 312 R v Tayyab Sheikh [2004] NSWCCA 38 R v Young [1995] 2 QB 324 Re Mathews and Ford (1973) VR 199 Re Portillo [1997] 2 VR 723 Smith v The Queen (2001) 206 CLR 650 The Queen v Glennon (1992) 173 CLR 592 TKWJ v R (2002) 193 ALR 7 Vaise v Delaval (1785) 1 TR 11, 99 ER 944 Zoneff v The Queen (2000) 200 CLR 234 REGINA PARTIES : Bilal SKAF Mohammed SKAF FILE NUMBER(S) : CCA 60401/03; 60414/03 Crown: D Arnott/ G Smith Appellant: (B Skaf) P Zahra SC/ A Cook COUNSEL : Appellant: (M Skaf) S Odgers SC/ H Danji Amici curiae: R Cogswell SC/ M G Sexton SC/ J A Quilter Crown: S Kavanagh (Director of Public Prosecutions) SOLICITORS : Appellant: (B Skaf) Galloways Appellant: (M Skaf) W H O'Brien LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1188 (B Skaf) FILE NUMBER(S) : 01/11/0901 (M Skaf) LOWER COURT Finnane DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60401/2003 CCA 60414/2003 DC 01/11/1188 DC 01/11/0901 MASON P WOOD CJ at CL SULLY J Thursday 6 May 2004 REGINA v Bilal SKAF REGINA v Mohammed SKAF The appellants appeal against convictions following their joint trial in the District Court before Judge Michael Finnane QC and a jury. The jury returned guilty verdicts on 11 July 2002. Bilal Skaf was convicted of two counts of aggravated sexual intercourse without consent. His brother, Mohammed Skaf, was convicted of one count of being an accessory before the fact to his brother's two counts. The victim of each count was Ms D. The two counts of aggravated sexual intercourse without consent occurred at Gosling Park, Greenacre on 12 August 2000 [paras 4 – 31]. Given the nature of his charge, the Crown had to prove that Mohammed Skaf knew that his brother was intending to have sexual intercourse without consent and in company of at least one other person. In addition, the Crown had to prove that he encouraged and assisted Bilal Skaf to carry out that crime. The Crown case was that Mohammed Skaf's part in his brother's crime was to entice Ms D to accompany him in a car, then take her to Gosling Park, then seek to induce her to engage in sexual activity and then, when she proved unwilling to do so, to persuade her to remain in the park until Bilal Skaf and the other men, with whom he had been in constant communication by mobile phone, arrived in the park to seize her. On the Crown case, his part in the crime was complete when he left her in the company of Ibrahim (his friend) and then he left the vicinity. There was little or no dispute as to Mohammed Skaf's conduct. The critical issue was his state of knowledge and his intent in bringing Ms D to the park and leaving her (at least temporarily) shortly before she was sexually assaulted. Before they could convict, the jury had to be satisfied beyond reasonable doubt that Mohammed's Skaf intention was to make Ms D available to his brother and that he was doing this so that his brother could have non-consensual sexual intercourse. BILAL SKAF - GROUNDS OF APPEAL Grounds 1 – 5 fail. Ground 6 is upheld and a new trial ordered. The misconduct of the jurors caused the trial to miscarry. The grounds of appeal are: 1. the trial judge failed to properly direct the jury as to the caution with which the jury should assess Ms D's evidence of identification [paras 16 – 84]. The ground fails; 2. the trial judge was wrong to direct the jury as to the meaning of 'beyond reasonable doubt' [paras 85 – 93]. The ground fails; 3. the trial judge misdirected the jury as to the significance of Ms D's complaint on the night of the assaults [paras 94 – 96]. The ground fails; 4. the trial judge misdirected the jury as to how they should approach Bilal Skaf's alibi defence that he was at home on the night of 12 August and that is was his cousin who had gone to Gosling Park [paras 97 – 108]. The ground fails; 5. the trial judge's discretion miscarried when he did not discharge the jury as a result of media publicity relating to Bilal and Mohammed Skaf's conviction at an earlier trial in relation to other offences [paras 109 – 119]; and 6. the trial miscarried by reason of juror misconduct. The Court finds that "regrettably" there must be a new trial. The misconduct of the jurors caused the trial to miscarry. GROUND 6 (Bilal Skaf) and GROUND 10 (Mohammed Skaf) IN DETAIL Bilal Skaf argued that "the trial miscarried by reason of a juror attending the scene of the alleged crime and informing himself as to the state of the lighting at the scene of the alleged crime". Mohammed Skaf argued that "the trial miscarried by reason of the conduct of two jurors prior to verdict." [paras 187 – 189] The Court details the background as to how these grounds of appeal arose at paras 190 – 194; 196 – 203; 234 – 235. The Court commends the professionalism of the solicitor who informed the authorities of her conversation with one of the jurors almost 18 months after verdict. [par 195] One of the jurors was the 64 year old foreman. The day before verdict the jury went home early. The foreman called one of the other jurors and they decided to visit Gosling Park. They arrived at the park at about 8.15pm and spent about 15-20 minutes at the park. They walked through the park. The foreman noticed the lighting and said he could see the other juror at all times. At different places in the park he was about 2 –3 metres from the other juror. The foreman asked the other juror, "Can you see me clearly?". At each different place the other juror said "Yes". The foreman said that he only went to the park to "clarify something for my own mind. I felt I had a duty to the court to be right. I wanted to be sure my decision was not in any doubt before the verdict. I did not tell anyone else in the jury about this visit. The only juror who knew about the visit was the one who was with me." [par 204] Evidence of jury deliberations is inadmissible. Jury deliberations may take place outside the jury box or jury room and they may occur when not all jurors are present (eg. deliberations are not interrupted when a juror goes to the toilet). There will be matters of degree and the line is not always easy to draw. [par 224] The Court finds that in this case, although the jury had been sent out to consider their verdict, the Gosling Park experiments could not be considered part of the jury's deliberations. Accordingly, evidence as to what occurred at the park was admissible. Whether the jurors' conduct amounts to a contempt of court is not in issue in this appeal. However the Court mentions it to "indicate to other jurors in other trials the potential seriousness with which the law views this type of conduct." [par 239] The legal standing of the jurors' conduct is that the Court needs to "weigh the possible prejudicial impact" of the information "upon the minds and deliberations of (at least) the two jurors …" [par 241]. This is because the information obtained by them was not evidence in the trial or properly put to them by the Judge with the knowledge of the parties. Also, the evidence was obtained in circumstances amounting to procedural unfairness (denial of natural justice) as the accused were unable to test the material in any way. The Court finds that there must be a new trial unless the Court can be satisfied that the jurors' conduct has not affected the verdict and the jury would have returned the same verdict if the jurors' had not visited the park. [par 242] A key issue at Bilal Skaf's trial was whether he was properly identified by Ms D as the man who first sexually assaulted her and whether he was present when the second (unidentified) man did so. The adequacy of the lighting at the park was clearly relevant. [par 250 – 251] Bilal Skaf submitted that he did not know Ms D and the events occurred at around 10pm, when it was dark. [The jurors' visit and experiments took place between 8.15pm – 8.30 or 8.35pm]. The assaults occurred in part of the park at which the floodlights were turned off. Bilal Skaf argued at trial that he had been wrongly identified by Ms D [paras 253 – 256]. Mohammed Skaf adopted his brother's submissions at appeal, adding (correctly) that this ground of appeal must be allowed if Bilal's succeeds because Mohammed was charged with being an accessory to Bilal's offence. [par 259] Judge Finnane instructed the jury at the beginning of the trial not to "go and do your own research". The two jurors disobeyed this instruction, that is, they visited the park and took into account information that was not evidence in the trial. Because the judge nor the parties knew about the jurors' conduct, the trial judge could give no directions about the use of the information they obtained. [par 260] An "untenable" submission put by the Crown on appeal was that the foreman had already decided Bilal Skaf's guilt and that his visit to the park was a part of his duty to the court to be right. The Court finds this submission ignores the capacity of the foreman's discussions amongst jurors to influence their decision-making. [par 263] Miscarriage of a trial "does not turn upon the jurors' good intentions" or "accidental circumstances of an irregularity." [par 266] The key point is not just the visit to Gosling Park, which was clearly wrong, but what was "actually seen and done at the park." The Crown submitted that the lighting conditions at the park on the night of the assaults and when the jurors' visited were the same. The Skafs argued that if the foreman was 10 minutes out in his estimated time of visiting the park, he would have been there when the floodlights were on. The Court finds that the possibility of different lighting conditions cannot be excluded, and that in any event an "uncontrolled view" of the park and the issues of procedural unfairness remain. [par 269]. "The Court cannot be satisfied that the irregularity [that is the visit to the park] has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. The juror treated what was seen and done at the park as information that he took into account in arriving at or confirming his conclusion that guilt had been established beyond reasonable doubt. … Attempts to … conduct experiments are fraught with danger, even if conducted under the control of the court. Conditions may be different in perceptible and imperceptible ways. Especially is this the case where there may be movement and potentially variable lighting conditions or perspectives of view … These dangers increase exponentially when a view coupled with an experiment takes place in private and where its impact comes to be assessed years after the event. The misconduct of the jurors caused the trial to miscarry." [paras 274 – 276] SENTENCE Removing Bilal Skaf's Gosling Park sentences from the total sentences handed down by the trial Judge means the Court must adjust the total sentence he is currently to serve pending a new trial. If the new trial ensues and results in convictions, the sentencing judge will be free to impose a sentence that is wholly or partly concurrent with and/or cumulative upon the Court of Criminal Appeal's revised total sentence. It is important to note that the Court of Criminal Appeal's revised sentence does not mean that Bilal Skaf has had his sentence for the convictions relating to events at Northcote Park or Bankstown and Chullora reduced. Appeals against these sentences have not yet been heard by the Court. MOHAMMED SKAF – GROUNDS OF APPEAL Four grounds of appeal were upheld. The Court finds that he is entitled to a new trial. The reasons for a new trial includes juror misconduct. Ground 8 argued that the trial judge did not properly instruct the jury in relation to Mohammed Skaf's refusal to answer questions put to him by the police. Toward the end of the trial, a video and transcript of his police interview (ERISP) was admitted as evidence. The jury were invited to watch the video in their room. No directions as to how they should approach that task were given. Nothing was said to warn the jury not to draw adverse inferences from Skaf's refusal to answer some questions. Nor were there directions about the effect of the video and transcript being admitted without objection [paras 134 – 147]. The Court found it unnecessary to rule on this ground in isolation, but considered that (taken with other successful grounds) it explains why a new trial is ordered. Ground 2 (see Bilal Skaf's Ground 5 above). The ground fails. Ground 3 argued that Judge Finnane made an error when he directed the jury that they could use evidence of lies allegedly told by Mohammed Skaf to the police in his ERISP to establish that he had a tendency to act in the manner alleged by the Crown in the commission of the offence. The Court finds the Judge invited the jury to consider Skaf's guilt by reference to his lies and linked this invitation to the Crown case that Skaf had "acted deceitfully". The Court finds the probative value of the evidence [of the lies] did not substantially outweigh its prejudicial effect [paras 160 – 164]. The Court upholds this ground. Ground 4 argued that Judge Finnane made an error when he failed to direct the jury that they were not entitled to use evidence of Mohammed Skaf's conduct after the alleged offence was committed to establish a consciousness of guilt. This is related to Ground 3 but covers wider factual area. The Court upholds this ground [par 172]. Grounds 5 and 7 argued that a miscarriage of justice occurred because Ms D believed that Mohammed Skaf was guilty and this was admitted into evidence (Count 5) and that the judge failed to direct the jury to ignore this evidence (Count 7). As a new trial has been ordered on Ground 4, it is not strictly necessary for the Court to rule on these grounds [par 185]. The Court nevertheless stated certain principles that may assist in the conduct of any new trial. Ground 9 (see Bilal Skaf's Ground 2 above). The ground fails. Ground 10 (see Bilal Skaf's Ground 6 above). The ground is upheld and a new trial ordered. SENTENCE See comments about Bilal Skaf's sentence above. It is important to note that the Court of Criminal Appeal's revised sentence does not mean that Mohammed Skaf has had his sentences for the convictions relating to events at Bankstown and Chullora reduced. Appeals against these sentences have not yet been heard by the Court. NEW DIRECTIONS TO JURIES It is customary in NSW for juries to be directed to decide the case only by reference to the evidence and not to discuss the issues for determination with strangers. The Court has sought to tighten the normal directions given by judges to juries at the start and during trials to include directions concerning external research and discussing the trial with third parties [par 282]. The Court adds five new instructions to be given to juries by trial judges. These include instructions about private viewings of crime scenes, experiments, asking other jurors to participate in making inquiries and a juror's responsibility to advise the trial judge of inappropriate juror behaviour [par 284]. FORMAL ORDERS OF THE COURT The Court upholds Bilal and Mohammed Skaf's appeal against conviction and orders a new trial. ************* IN THE COURT OF CRIMINAL APPEAL CCA 60401/2003 CCA 60414/2003 DC 01/11/1188 DC 01/11/0901 MASON P WOOD CJ at CL SULLY J Thursday 6 May 2004 REGINA v Bilal SKAF REGINA v Mohammed SKAF Judgment 1 THE COURT: The appellants appeal against convictions following their joint trial in the District Court before Judge Finnane QC and a jury. 2 The indictment contained three counts: COUNT 1: MOHAMMED SKAF Whereas Bilal Skaf on 12 August 2000 at Greenacre in the State of New South Wales, in circumstances of aggravation, namely, being in company with a number of other male persons, had sexual intercourse with [Ms D] without her consent, knowing that she was not consenting thereto, before that serious indictable offence was committed, namely, on 12 August 2000 at Greenacre in the State of New South Wales, did incite, move, procure, aid, counsel, hire and command Bilal Skaf to commit that serious indictable offence. PLEA: Not guilty. COUNT 2: BILAL SKAF that Bilal Skaf on 12 August 2000 at Greenacre in the State of New South Wales, in circumstances of aggravation, namely being in company with a number of other male persons, did have sexual intercourse with [Ms D] without her consent and knowing that she was not consenting thereto. PLEA: Not guilty. COUNT 3: BILAL SKAF that Bilal Skaf on 12 August 2000 at Greenacre in the State of New South Wales, in circumstances of aggravation, namely, being in company with a number of other male persons, did have sexual intercourse with [Ms D] without her consent and knowing that she was not consenting thereto. PLEA: Not guilty. 3 The jury returned verdicts of guilty in respect of each count on 11 July 2002. The Crown case in brief 4 The Crown case has been summarised as follows: The appellant Mohammed Skaf , calling himself "Sam", had known the complainant for some time. On the night of 12 August 2000 he rang her and asked if she would like to come for a drive to the city. She accepted. He arrived at her house with two other males, Michael and Ibrahim. They drove to a carpark at Gosling Park, Greenacre, after Mohammed Skaf told her he had to stop off to collect some money owned to him. Throughout the trip Mohammed Skaf and the others were making mobile phone calls in a foreign language. Mobile phone records show mobile phone calls between Mohammed Skaf and his brother, the appellant Bilal Skaf, throughout the evening of 12 August 2000. Bilal Skaf's calls were originally from his home in Valencia Street, Greenacre, but later they originated at Gosling Park. Once at the carpark Michael and Ibrahim left to look for the man with the money. Mohammed Skaf unsuccessfully tried to initiate sexual activity. When Michael and Ibrahim returned Mohammed Skaf left the complainant with Ibrahim while he left with Michael. Ibrahim also unsuccessfully tried to initiate sexual activity. When Mohammed Skaf and Michael returned again the complainant told Mohammed Skaf that she knew what he was doing and that she was going to leave. Then, to keep her at the carpark, Mohammed Skaf persuaded her to stay while he and Michael left once more. Shortly thereafter a white van and a blue car arrived at the carpark carrying eleven males. The driver of the van told the complainant he was Sam's brother. This was the appellant Bilal Skaf . The complainant noticed he had a scar on his left eyebrow. The driver then dragged the complainant by the hair to another part of the park where he sexually assaulted her while surrounded by the other males. A second male then also sexually assaulted her. She managed to run away and was assisted by a passer-by. Calls and an SMS message from Mohammed Skaf made to both the complainant and the police after 12 August 2000 show his knowledge and involvement in the events of that date. In November 2000 the complainant identified both appellants from photo boards. On 15 February 2001 the complainant identified the appellant Bilal Skaf in a crowd as Sam's brother. Bilal Skaf has a scar above his left eyebrow. 5 Neither accused gave or called evidence at the trial. 6 Bilal Skaf's case was that he had been wrongly identified by the complainant. He was at home at the time. The man identified by the complainant could have been his cousin Ali Skaf. 7 Mohammed Skaf disputed that his brother Bilal committed the sexual assault that was the subject of the second count and that had to be proved in the case against him under the first count. He also disputed that his action in taking the complainant to the park and leaving her there (temporarily) occurred in circumstances that rendered him an accessory before the fact to the sexual assault charged against his brother. The critical issue was whether the Crown established that Mohammed Skaf knew that his brother was intending to have sexual intercourse without consent and in company of at least one other person. The evidence in detail 8 The principal Crown witness was the complainant. She was sixteen at the time of the offence. She had met Mohammed Skaf around Christmas 1999. Between then and August 2000 she had seen him about three times and had spoken to him on the phone a number of times. She had given him her mobile phone number. She knew him as "Sam". 9 On Saturday 12 August 2000 the complainant received a phone call from him between 6.00 and 6.30pm. He invited her to go for a drive into the city. She told him she would have to ask her mother and would call him back. About half an hour later he called her back, saying he was by himself and coming to pick her up. She gave him directions and he arrived 15 to 30 minutes later, ringing her to say he was outside her home. [Mohammed Skaf's telephone records suggest that the call was made at 8.59pm.] 10 The complainant went outside and saw a red hatchback car. "Sam" was sitting in the back. A man named Michael whom she had met once before was sitting in the driver's seat. There was another passenger in the front whom Sam introduced as Ibrahim. 11 As they were driving Sam said that he had to meet a man who owed him $600 and that they would drive to the city afterwards. During the drive Sam and Ibrahim made a number of phone calls and spoke in a foreign language. [Bilal Skaf phoned Mohammed Skaf at 9.02pm.] At one stage the others referred to Sam as "Mohammed". The complainant asked him if that was his name and he denied it. 12 About 25 – 30 minutes after leaving the complainant's house the car arrived at a park that the complainant did not recognise. It was Gosling Park, Greenacre. There was a carpark and two playing fields. By this time it was dark, although there was some lighting at the park. 13 Michael and Ibrahim got out of the car and said that they would look for the man who owed Sam the money. Sam started to rub the complainant's leg and put his arm around her shoulder, while still in the back seat of the car. She told him not to and he backed off. During this period Sam received a phone call that he answered in a foreign language. [Bilal rang his brother Mohammed at 9.27pm.] 14 Michael and Ibrahim returned and said that they could not find the guy who owed Sam the money. Then Sam and Michael went to look. Ibrahim sat in the car with the complainant. He started touching her and tried to convince her to have sex with him. She told him to stop. When he continued she got out of the car. 15 Sam and Michael returned. They tried to leave the complainant with Michael. She told Sam something like "No, that's not happening… I know what's going on Sam, do you think I'm stupid? Do you think I'm dumb?". She later explained this as a belief that Michael, Ibrahim and Sam were taking turns about being "sleazy" with her (Tr p128). 16 Sam and Ibrahim then had an argument which the complainant thought was staged because of what had gone on before and because Ibrahim at times gave Sam a smile. The complainant then told Sam "Fine, well, I'm walking home. You're not leaving me with these people". He replied "This is a dangerous area, you never know what will happen. Stay here until I get back. Stay with Ibrahim until I get back". He walked away towards a soccer game being played under lights in the farther of two fields. He was not present during the sexual assaults referred to below. Count 1 related to Mohammed Skaf's role in enticing the complainant to the park and leaving her there intending that his brother Bilal could have non-consenting sexual intercourse with her. 17 The complainant then got into the back of the red car. Ibrahim sat on the other side of the back seat. When he started being "sleazy" again the complainant got out of the car. 18 A white van then pulled up and parked about two car spaces away. Three males got out of the front and five got out of the back. Then a blue car pulled up and three males got out of it and went up to the males from the white van. The complainant did not recognise any of these 11 males. But Ibrahim obviously did, and he got out of the red car and went over and spoke to the other males. 19 The driver of the van stayed with the others for about five minutes, then came over to the complainant who was seated in the red car. He said "How are you, I'm Sam's older brother. My name is Sam. How do you know Sam?". She told him and then he asked if she wanted to come for a walk. She declined, telling him that she had to wait for Sam. 20 The complainant said that the lighting was sufficient for her to see faces clearly. She saw that the driver of the van, Sam's brother Sam, had a dimply kind of skin, prominent chin, prominent nose, shorter hair on the sides and longer on top. He had a medium build and was only a little taller than the complainant who was 5'5". He had a scar on his left eyebrow. He had bushy eyebrows and deep-set eyes. 21 The brother (Bilal Skaf, on the Crown case) kept asking her to go for a walk and she kept saying no. Then he grabbed her from underneath her hair and said something like "Allah boys, Alley". Then the rest of the males came over and grabbed her by the arms, dragging her into the field behind a square building with four cement cylinders next to it. The complainant was crying and screaming, telling them to fuck off and leave her alone. The Sam who had been the driver of the van told her that if she did not shut up she would get bashed by all of them. 22 There were males all around the complainant. She had her arms held down and her legs held back. The Sam who had been the driver of the van then had vaginal intercourse with her as she was pinned down, crying and screaming. The other males were laughing and speaking in a foreign language. This assault was the subject matter of Count 2. 23 Another male then came over saying "Now it's my turn". He took his pants off and had vaginal intercourse with the complainant. This also took place in the presence of Bilal Skaf (who was doing up his pants nearby) and of others who assisted in pinning down the complainant. This second assault was the subject matter of Count 3. 24 One of the males who had a pony tail said something to the male who was assaulting the complainant. He then got off her and pushed her causing her to hit her head on a cylinder. Another male then came up behind her and held a gun to her head. She was told that if she told anyone about what had happened she would be killed. Then she was kicked in the stomach. The other males were still standing around her, laughing and talking. 25 The complainant started running away, being pursued by some of the males. The man with the ponytail was in front of her in the van. Initially he said "Jump in, there's a mattress inside". Then he yelled at her to "Get in the fucking van". The complainant was screaming. 26 A Mr Anderssen came around the corner at this stage. The man with the ponytail then jumped back inside the van which drove off. The complainant was screaming and crying. Mr Anderssen comforted her and took her into his upstairs flat. The complainant's mobile rang and the call was answered or overheard by Mr Anderssen. A male voice said: "Come outside. I'm sorry. It had nothing to do with me. It was my friends. I didn't know they were going to do that" (Tr p160). Mr Anderssen called the complainant's boyfriend Zoltan and asked him to pick her up. Soon after this she received a call on her mobile phone from Ibrahim asking her "Where are you, what happened, come back". Then the younger Sam got on the phone and asked "What's going on, [he referred to her name] where are you? We'll come pick you up now and we will take you home" (Tr p76). The complainant refused. This call was made at 10.47pm and traced to Ibrahim's phone. 27 Mr Anderssen overheard the call. His version was that the man said "Come outside. I'm sorry. It wasn't my fault. It was my friends. It wasn't me…I'm sorry. I didn't know they were going to do that" (Tr pp159, 160). 28 The following day the complainant spoke to her mother about the complaint and two days later she reported the matter to the police. 29 On 14 August the complainant received an SMS message on her mobile phone from Mohammed Skaf's phone. It said: 14 Aug 15:21 HEY SEXC HOW R U LOOK IM VERY SORY ABOUT WAT HAPEND THE OTHER DAY I GOT INTO A PUNCH UP WITH THEM CAUS OF WAT THEY DONE TO U SO PLZ REPLY BACK 2 ME HUM 30 She also received a number of calls from unidentified persons telling her that if she went to the police she would be killed, repeating her address, or saying that members of her family would be killed (Tr p78). (None of this evidence was objected to. It should, however, be noted that at least one call came from Mohammed Skaf and there was no evidence that anyone connected with the appellants had the complainant's phone number other than Mohammed Skaf: cf Tr pp130-1.) 31 Evidence of complaint was given by Mr Anderssen; by the complainant's mother; and in the form of a statement from the complainant's boyfriend Zoltan Toth, since deceased. There was also medical evidence that included a history consistent with the complainant's evidence. Evidence of identification of Bilal Skaf 32 The complainant made a photoboard identification of Mohammed Skaf on 16 November 2000. At the trial Mohammed Skaf's identification was not in issue, but Bilal Skaf's was. 33 The complainant said that the driver of the van who spoke to her at the park shortly before he assaulted her had introduced himself (Tr p62): How are you. I'm Sam's brother. My name is Sam. Later evidence was that he called himself "Sam's older brother" (Tr p64). 34 There was no evidence that Mohammed had any (older) brother apart from Bilal. There was also evidence that Bilal Skaf had used the name "Sam" on a previous occasion (Tr p219). 35 On 22 September 2000 the complainant gave a description of the man she knew as Sam's brother Sam, the driver of the white van who had been the first man to sexually assault her at the park. His hair was short on the sides but longer on the top, he had a prominent nose and chin, his chin had dimples, he had thick eyebrows, three day growth and a scar on his eyebrow. He was of medium build and slightly taller than the complainant, he had long pants and said he was Sam's brother but also called himself Sam. 36 On 28 September a computer-generated colour image of the suspect was compiled at the instruction of the complainant. Evidence of this was led by the defence, in cross-examination of Detective Senior Constable Walsh (Tr p209). This became Ex MA 6 which was tendered by Bilal Skaf's counsel. In address, counsel submitted that the image did not resemble his client. [It was in our view open to the jury to see a resemblance, we put it no higher than that. It was a matter for them.] 37 Bilal Skaf declined to participate in an identification parade. 38 On 8 November 2000 the complainant was shown a photoboard with 15 pictures of young men (Ex C5). She thought that the men in pictures 1, 2 3 and 10 looked familiar, and that photograph 1 looked like the man with the ponytail. 39 She gave the following evidence about the man in photo 10 (Bilal Skaf) (Tr p80): Q. What did you think when you looked at photograph 10 on that day? A. I wasn't 100 per cent sure. I didn't want to give my word to the police, but I told them number 10, that I thought that was Sam, Sam's older brother Sam. Q. You didn't want to say for sure, why was that? A. I didn't want to get someone who is innocent into trouble. I wasn't sure. I couldn't – I wasn't 100 percent positive. As I said it was just a photo. It wasn't – it just wasn't that easy judging off a photo. 40 Bilal Skaf suggested in an ERISP on 3 April 2001 that his cousin Ali Skaf had gone to the park in a white van and told Bilal the following day that he had had sex there with a girl. On 7 December 2000 the complainant was shown a photoboard which contained a photo of Ali Skaf. She did not identify anyone from that photoboard. There was also evidence by Ali Skaf himself denying his involvement. That evidence further supported the Crown case in that it was to the effect that Ali Skaf (whom the jury saw) was over six feet in height and that he did not have a scar over his left eyebrow. 41 On 15 February 2001 arrangements were made for the complainant to be at the Burwood Local Court on an occasion when Bilal Skaf would be there. The complainant was accompanied by a police officer and she wore a listening device. She was told that the people coming into the building might not be any of those involved in the incident, but she was certainly aware of the possibility otherwise. There were a large number of people of various ages, gender and racial appearance (Tr p188). There were two other young males of "Middle Eastern appearance" (Inspector Boik at Tr p189). [This evidence was not drawn to this Court's attention in the submissions of counsel.] She testified that she identified Bilal Skaf as: "Sam's older brother Sam. I identified him at the Court house as soon as I saw I had no doubt in my mind I had the right person…. It's so much easier judging someone when they are in front of you than on a photograph …. The little scar on the eyebrow. That was it." (Tr pp81, 82). She was very distressed when at one point the man she identified stood very near them. 42 In the transcribed audio tape of her whispered comments to the police officer sitting beside her at the Local Court she said "I recognise him as being one of the males who were there on the night of my attack". The complainant explained that she had not used those words because of uncertainty about the identification of the man at the Local Court as the man with the scar who assaulted her (Tr pp102-4). The complainant had also made this clear in a statement given to the police a few days later. 43 The photoboard picture of Bilal Skaf that the complainant identified on 8 November 2000 was not clear enough to reveal any facial scarring. The complainant had previously referred to Sam's brother Sam having had a scar on his left eyebrow. When Bilal Skaf was arrested on 13 March 2001 he was required to submit to being closely photographed. The photograph and the police officer's measurements (Exx C14, C20 and Tr p172) show a scar about 1 cm long located 2 cm above the middle of the left eyebrow and a faint scar approximately 1 cm long in the upper hairs of the left eyebrow. 44 In his second ERISP Bilal Skaf admitted to having a scar 2cm above his left eyebrow in the middle and 1cm wide. He had got it in a car accident "ages ago" (Q & A 986-992). He also admitted to having a mark that he said was "natural … it's not a scar" 1cm long in the left eyebrow itself (Q & A 993-998). He couldn't remember whether his cousin Ali had a scar (Q & A 999). Ali gave evidence that he did not, something the jury were in a position to check for themselves. 45 Further photographs of the scarring on Bilal Skaf's face were taken during the second ERISP. Bilal Skaf's ERISP evidence 46 Bilal Skaf was arrested on 13 March 2001. Upon arrest he said "I don't know what you are talking about. Who is this girl?" He was then taken to Burwood Police Station where an ERISP was conducted in the presence of his solicitor (Ex C18). 47 Bilal Skaf was cautioned. He said that he did not wish to answer any questions in relation to the alleged sexual assault at Greenacre. With his concurrence, the interviewing officer then outlined details of the alleged events. Bilal Skaf effectively exercised his right to silence. There were however three answers in which he said that he knew nothing about the alleged incident (Q & A 29, 37 and 40). 48 A close-up photograph of his left eyebrow was then taken, without his consent, but in accordance with s13 of the Crimes (Forensic Procedures) Act 2000. 49 A further ERISP was conducted on 3 April 2001 at the instigation of Bilal Skaf who had by that stage received advice from his barrister Mr Healey. 50 He said (Q & A 832-833): A. To the best of my knowledge that day I was home. I don't know where my brother was, him and his mates. I get a phone call saying they wanted to speak to Ali. Ali happened to be with me at my house in Greenacre. Ali spoke to, I think it was my brother, or one of his mates, and Ali took off that day. He told me he was going to Gosling Park. He had someone else with him. He had this other bloke that's with him. … A. I can't remember who exactly was with him, but I'm pretty sure, not pretty sure but I'm sure it was this Andre guy, some Andre, Andre bloke, that's all I can remember. 51 At this interview, Bilal Skaf was told the police allegations against his brother Mohammed. He said that he had not spoken to his brother about the incident. 52 Bilal Skaf said that he remembered his mother being at home, that "Ali was over" and that he had another bloke with him whose name was Andre (Q & A 860). He said "I just got a phone call from my brother saying he wanted to speak to Ali" (Q & A 863). Ali spoke to him and "After that Ali had taken off. He told me he was going to the park, Gosling Park …. I stayed home" (Q & A 867-872). He said that Ali told him "He had a girl coming down" [to the park] (Q & A 908). He knew that Ali possessed a gun which he usually carried with him in the white van (Q & A 950-955). 53 Bilal Skaf said that Ali later spoke to him and told him that "He went to the park and slept with the girl, had sex with her" (Q & A 881). Ali also told him "There was a few boys, but I don't know who they are, I don't know who was there" (Q & A 883). Later he said "all I remember is that he said that to me that he was, he slept with her, I had a root yesterday" (Q & A 1073). 54 Bilal Skaf said that the white van was at his house, but that Ali and Andre left in it. The interviewer then informed Bilal that the police had phone records showing that Mohammed had contacted Bilal's phone several times that night during the time when the victim was picked up from her home address and the time when she was taken to Gosling Park as well as the time when she was at Gosling Park. He was asked what he could tell the police about that and answered (Q & A 904): Yeah, well, all those times he was speaking to my cousin, Ali, until the, by the time… I… got to the park. 55 He agreed that the phone was always with him, but insisted that Mohammed was calling him, trying to get in touch with Ali who did not have a phone. Mobile phone usage on the night of the assaults 56 Mobile phones seized from the appellants and some of their associates enabled the Crown to lead evidence as to the time, approximate location and parties to mobile phone calls on the evening of the assaults. The complainant's phone also stored relevant data in its SIM card. A telecommunications engineer from Vodafone gave evidence as to the site sections that would probably engage the Vodafone Greenacre tower (No 2116) when phone calls were made from particular locations. A mobile phone call from the Skaf residence, being just outside the predicted coverage area of site 21163, would probably be picked up from that site by the Greenacre tower. A mobile call made at Gosling Park, Greenacre would most likely be picked up by the Chullora (2275) tower, sections 22752 or 22753. Section 22753 would be extremely unlikely to pick up a call made from the Skaf residence (evidence of Mr Simmons). 57 There was evidence that the following calls were made on the evening of the assaults: • Mohammed Skaf called the complainant six times, with the first call at 8.01pm and the last call at 8.59pm. • Bilal Skaf called Mohammed Skaf at 7.58pm, 8.26pm, 8.44pm, 9.02pm and 9.27pm, all calls originating in Greenacre. [On the Crown case, this last call was the one received by Mohammed Skaf when alone in the red car with the complainant in the Gosling Park carpark.] • Bilal Skaf called Ali Skaf at 8.59pm, 9.30pm and 9.46pm, all calls originating in Greenacre. • Mohammed Skaf called Bilal Skaf at 9.59pm, 10.02pm and 10.28pm. These calls originated in Chullora. • Ibrahim made calls from Greenacre to the complainant's mobile at 10.46pm and 10.47pm. 58 The Crown case was that the sexual assault occurred between 9.59pm and 10.37pm. The Crown suggests the following scenario (Crown submissions on appeal §10): Bilal Skaf telephoned Mohammed Skaf (who was in the car with Miss D) at 9.27pm from most likely the area of his home. At 9.46pm Bilal Skaf, most likely from home, calls his cousin Ali. At 9.59pm Bilal Skaf calls Ibrahim. Bilal is most likely in the Gosling Park area. At exactly the same time Ibrahim calls Bilal but the call is diverted because Bilal's call just got in beforehand. 16 seconds later (still at 9.59pm) Mohammed Skaf calls Bilal Skaf. At 10.02pm and then at 10.28pm Mohammed calls Bilal – both Mohammed and Bilal being in the Gosling Park area. At 10.37pm and 10.38pm Bilal Skaf makes two calls – the first most likely from the Gosling Park area and the next in the area of his home – indicating he is on his way home. Evidence relevant to Bilal Skaf's alibi 59 As indicated, Bilal Skaf told the police in his second ERISP that he was at home and remained at home on the night in question. He said that his cousin Ali Skaf left with a friend named Andre in Ali's white van. Ali told him the following day that he had had sex with a girl in the company of friends at Gosling Park. He relied upon this alibi at trial (Tr p197). 60 The Crown called Ali Skaf and Andre Saadi. Ali Skaf is the cousin of the appellants. He denied having gone to Gosling Park on the night in question or having sexually assaulted a young woman there. He had not been at Bilal Skaf's home that night, nor did he ever tell Bilal Skaf that he had had sex with a girl at Gosling Park. He did not own a white van. Ali Skaf said that he was over six feet in height and pretty stocky in build. (Contrast the complainant's description of the first man who assaulted her.) Ali Skaf has no scarring in the area of his left eyebrow. The jury would have been in a position to ascertain the correctness of those last two matters from their observation of the witness. 61 Andre Saadi gave evidence. His family had owned a bottle shop at Mt Lewis. (This linked him with the Andre referred to by Bilal Skaf in his second ERISP.) Mr Saadi knew Ali Skaf, but had never met Bilal Skaf. He denied having been at Gosling Park or having had anything to do with the sexual assault of a young woman there. In cross-examination Mr Saadi agreed that he had seen Ali Skaf driving a white van on one occasion. Grounds of appeal Bilal Skaf Ground 1: The learned trial judge failed to properly direct the jury as to the caution with which it should assess the evidence of identification pursuant to s116 Evidence Act (NSW) 62 The sexual assaults occurred on 12 August 2000. As indicated, a chronology relevant to the complainant's identification of Bilal Skaf as "Sam's brother Sam" who sexually assaulted her was as follows: 22.9.00 Description given to police 28.9.00 Computer generated picture 8.11.00 Photoboard identification 15.2.01 Identification at Burwood Local Court 63 The circumstances of the photoboard and Local Court identifications have been set out above. A voir dire inquiry concerning the admissibility of the Local Court identification was abandoned (Tr p17). The admissibility of the evidence is not in issue. 64 When the audio tape and transcript of the conversation surrounding the identification at the Local Court was tendered, the judge reminded the jury that the complainant had gone to the Local Court in the expectation that somebody involved in the assault might be there (Tr p89). 65 Before the summing up, there was discussion as to the terms of Directions of Law that were handed to the jury. 66 On the topic of identification the Directions said: The accused Bilal Skaf through his counsel, submitted that there is doubt about the identification of himself as the perpetrator of a sexual assault on the complainant and of being in Gosling Park Greenacre on 12 August 2000 when the complainant was being sexually assaulted by another man. You must approach any evidence of identification with considerable caution before you accept it as reliable. This caution is necessary even if you accept the complainant as completely honest. Many witnesses are honest but not reliable. In this case, the identification is that of the complainant [Ms D]. She identified the accused by seeing him at the Burwood Court. She did not identify Ali Skaf or any other potential assailant, apart from Mohammed Skaf, whom she had known for some time before the 12th August 2000. You have to take into account the opportunity she had for observation, her age, her mental condition, her reliability, the fact that she made a computer likeness, which, on the argument of Mr Healey is not like that of the accused, Bilal Skaf, was unwilling to identify him only on the basis of a photoboard and did identify him at Burwood Court. The identification at the Burwood Court occurred 6 months after the incidents of 12 August 2000. You have to take into account what she said and did when she did identify the accused and what she said in a subsequent statement. Was she certain, was she hesitant, was she reliable? You must take into account when the particular identifications were made and the fact that it was made 6 months after 12 August 2000. You must bear in mind that many people mistakenly identify others and grave miscarriages of justice can occur if identification is mistaken. You are also entitled to take into account in considering whether she correctly identified Bilal Skaf, that, on her evidence, her first assailant introduced himself as "Sam's brother, Sam". Bilal Skaf is in fact the brother of Mohammed Skaf, who had told her that he was "Sam" and the evidence of Mr Daniel Davie establishes that Bilal Skaf had indeed described himself as "Sam". 67 Judge Finnane declined to amend this direction by adding a warning that it was dangerous to rely upon an identification made six months after 12 August 2000 (Tr p378). Section 116 of the Evidence Act did not require such a warning to be given. It provides: Directions to the jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury. See generally R v Inamata [2003] NSWCCA 19. 68 Early in the summing up, in the absence of the jury, trial counsel for Bilal Skaf referred to s116 and to the remarks of the High Court in Domican v The Queen (1992) 173 CLR 555 at 561-2. The judge was asked to draw the jury's attention to various circumstances of the particular case relevant to the identification issue. His Honour indicated what he proposed to do and counsel stated his agreement (SU 14-16). 69 The following directions were given in the summing up as regards identification (SU 30-37): So when you come to identification you are really looking at the case of Bilal Skaf. This is one of these instances, you see there are two separate trials and there are different issues. No doubt Mohammed Skaf was there before these two offences were committed at that park, with this girl and with two other men, Michael and Ibrahim. Again we do not know who they are either, they are just people by those names. She could not identify them. Now, Bilal Skaf says "I was not there", he says. And what he says comes in a statement to which I will come to later which he made to the police, the second statement he made to the police on 3 April last year. He says he was in his loungeroom, he didn't leave the house. Really, what he says is it is his cousin Ali Skaf who was off raping this girl in a white van, not him. So he's put this issue of identification clearly in focus. And it arises in any case like this, even if he said not a word, because she had never met him before that night. That seems clear on the evidence. She had never met Bilal Skaf. She many not even have heard his name before this night. So she claims to have been raped by a man she's never ever met and he says it wasn't him. Well, you have to approach any evidence of identification with caution before you accept it as reliable. You've got to do that because people often make mistakes. Unfortunately, innocent people have been convicted before today because of wrong identification. Now some people can be absolutely certain they can identify someone and yet they are wrong. How often has it occurred, certainly to any of you? It's certainly occurred to me. Walking down a street, or in a shopping centre, I see somebody approaching and I'm convinced it's a friend of mine and I go up to say hello, and when I'm about a metre and half away I realise it's not this friend of mine. It's somebody different who looks the same in all sorts of ways, but just is not the same. How often have you, indeed, said hello to someone, and they've said: "Who are you?" And we have been absolutely convinced we are talking to someone we know. So human beings make mistakes when it comes to identification. Now she was shown a photoboard. His photo was number 10 on the photoboard. She thought she saw something about that photo that she recognised, but she was not prepared to say that was the man who called himself Sam's brother Sam, who was the driver of the van and who first assaulted her. And she said in the witness box she wasn't prepared to do that because she is not prepared to identify someone who might be innocent. She was conscious of the fact that if she made a wrong choice she could be identifying an innocent man. She said that looking at the photo itself did not really help her. The photos, as you will appreciate, are quite small. Members of the jury, those photoboards are shown to witnesses, let me tell you, in circumstances where an accused person exercises his right not to appear in a formal line up. Now I think you have probably all heard of line-ups, where a group of people of sort of similar age and broadly similar appearance all stand in a room, and a person who is a victim of crime is asked to go along and see if, in this case she, can identify any of those men – any of those persons, it could be men or women. Anyhow, the accused Bilal Skaf exercised his right not to appear in a line-up. That's his absolute entitlement. He cannot be criticised for doing it. But what happens then is the fall back position, the police can show photos of people who look similar. Now they are small photos and they are obviously not – they don't give you the impression of a person's size or height or weight. Anyhow, she was not prepared positively to identify him. What happened then was that in mid February, six months later, she went to the Burwood Court and at the Burwood Court she sat with a police officer, Inspector Boik. She had a radio transmitter on, so everything she said was transmitted to a particular place where it was recorded. Inspector Boik knew nothing of this case, didn't know who Bilal Skaf was, didn't know exactly who she was looking for. And she was not told who she was looking for. And there were other police in the area. Now she would have known before she went there, obviously, that the police were hopeful that there might be someone at the court that she could recognise. In the same way, if there was a police line-up, any person going along to a line-up would have an expectation that perhaps there might be someone there who might be similar to the person who assaulted her. You obviously go with some expectation. Anyhow, she went along. She did not directly say: "That's him, that's the man who assaulted me". But you will recall the evidence of Inspector Boik that her body was shaking, she was trembling, she was unable to speak, and he had to ask her two or three times, and she said: "That man is one of the men who was there" or something like that. Then later on, some days later, she made a statement to the police and she said the man she identified was the man who had got out of the car, the van, was the driver, he told her he was Sam's brother Sam, he was the man that had raped her. Well, now, you have to take into account the opportunity she had for observation. You've got to take into account her reliability. There's also been put into evidence – Mr Healey referred to it this morning – a computer likeness. He says it doesn't look like Bilal Skaf. Well, you look at it and decide whether that's so. It's another factor. If she doesn't identify someone from a photoboard and then she draws or she agrees to some likeness that is not like that person, does that in your mind throw doubt on the eventual actual identification she made six months later? She said in this Court she has no doubt at all that that was the man. She's got no doubt at all that Bilal Skaf was her assailant. She's identified him, too, by having scars above his left eyebrow – or one above his left eyebrow and one in it. She's drawn a picture of where it was. You look at all the photographs Mr Healey referred you to. Also look at the video of his. That video is in three parts. The first part is an interview in which he says practically nothing. That's followed by the police attempting to take photos of him. And you look and see, doesn't he in that interview point to his left eyebrow? Do you see in that video what appear to be scars – a scar or scars? Does he not talk about that? You look at all those things. Look at the photographs. Consider her evidence. Look at the videos. Look at the attempts to photograph these scars and what he says as they are photographing them and what he points to. All that is material you can take into account. She was also shown photoboards of other people. Now he has mentioned in his second interview that Ali Skaf went off and to, use his expression, "slept with her". I think what occurred in the park could hardly be regarded as sleeping with her. It's an unusual form of sleep, if that was sleeping with her. Well, she was shown this evidence. She was shown a photoboard of Ali Skaf's photo and couldn't identify him as being there. You've seen him give evidence. He's physically, you might think, utterly different in height, in size, a very bulky man, and facial appearance to Bilal Skaf, completely different man, and he denies he was there at all. But, I mean, that's not the end of it. The question is did she correctly identify Bilal Skaf? You have heard descriptions of his features. You have been able to look at him for some time yourself. You judge whether those descriptions of his features are correct. So you take into account all those things and you bear in mind that many people mistakenly misidentify other people. You take into account the opportunity she had for observing him. How long were they together on that night in that park? What was the lighting like? Was she able, as she said, to clearly see him? He must have got quite close to her if he raped her. If her approached her and spoke to her and dragged her by the hair, she must have been quite close to him. If her evidence is accepted, she got more than just a little glimpse at him. It was more than just a glimpse. It was clearly a longer look than that. Then I say on page 7 [of the Directions of Law] you're also entitled to take into account, again as supporting evidence, that if she is correct, the first assailant identified himself as Sam's brother Sam; and in fact Bilal Skaf is the brother of Mohammed Skaf. Mohammed Skaf had told her his name was Sam. So the man who first assaulted her was a man who claimed to be the brother of the man who brought her to the park; and, as it turns out, Bilal Skaf is the brother. There is also evidence from a Mr Daniel Davie, a former police officer, that Bilal Skaf had, on an occasion quite removed from this, described himself to Mr Davie as Sam. 70 There was no request for redirection. In the circumstances the Crown invokes rule 4. 71 No affidavit from trial counsel has been filed in this Court. 72 The principles touching the application of rule 4 have been expounded on many occasions (for recent reviews, see R v Fuge (2001) 123 A Crim R 310, R v ITA [2003] NSWCCA 174, R v Lewis [2003] NSWCCA 332). 73 It is also pertinent to several of the grounds of appeal to remember the observations of Mason CJ, Deane J, Dawson J, Toohey J, Gaudron J and McHugh J in Domican (at 560): In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been a miscarriage of justice. 74 Judge Finnane drew the jury's attention to the reasons for the special need for caution both generally and in several particulars, including the need to consider: (a) the risk of a confident, yet mistaken identification; (b) the delay before the Local Court identification; (c) the complainant's knowledge that the police were hopeful she might recognise someone at the Local Court; (d) the degree of certainty with which the identification was expressed and made; (e) the complainant's opportunity for observing the offender on the night at the park; and (f) the defence argument that the computer-generated image was not a true likeness of the accused. 75 The written submissions complain of the factual inadequacies of the directions, including complaint that the judge implicitly underscored the reliability of the complainant's evidence, in particular by suggesting that the jury could draw comfort from the complainant's subjective conviction as to the reliability of her identification (at least by the time she had entered the witness box). It was also submitted that the judge failed to emphasise the length of time that elapsed between the offences and the identification of the appellant at Burwood Local Court. The appellant also submitted that the identification directions effectively bolstered the Crown case unfairly. We consider these criticisms to be groundless in light of a fair reading of the directions and the failure of defence counsel at trial to seek any additional directions. 76 We would also reject the submission that the judge was in some way endorsing the complainant's identification of Bilal Skaf when, in the context of directing the jury as to the proper use of her complaint on the night of the assaults said (SU 47): "This is direct evidence that in fact she was raped as she claimed to have been by two men of whom Bilal Skaf is one". At that stage the complainant did not know anyone called Bilal Skaf and she certainly did not purport to identify by name the man who had raped her a short time earlier. The sentence should be read as if there were a comma after "raped" . 77 We also dismiss the submission that the trial miscarried for want of some unrequested direction about the manner in which the jury should approach the evidence about the complainant's agitation when she sighted Bilal Skaf at the Local Court. 78 In oral submissions counsel for Bilal Skaf concentrated upon two deficiencies in this aspect of the summing up: the array of people at Burwood Local Court and the displacement effect. 79 Evidence was led by the Crown as to the range of persons at the Local Court. There were a large number of people of various ages and racial appearances including several young males of "Middle Eastern appearance". This evidence was not challenged or explored in cross-examination of the police officer concerned. In these circumstances, it is hard to envisage the content of the unrequested direction whose absence is now the subject of complaint. 80 The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person. The submission is that this phenomenon may have affected the complainant when she came to make a positive identification of the appellant at the Burwood Local Court. So much may be conceded. But again it does not follow that the trial miscarried because an unsought direction to this effect was not given to the jury. 81 In considering the likelihood of miscarriage it is relevant that (a) the computer-generated image of the assailant prepared by the complainant on 28 September 2000 was available as something of a measuring-stick; (b) there was additional identification evidence, particularly relating to the facial scarring (which did not appear in the photoboard picture); and (c) there was other evidence linking Bilal Skaf with the assailant at the park. 82 Bilal Skaf's counsel addressed the jury on the displacement issue (Tr p359). He raised with the jury the possibility that the complainant transported the image of the accused that she saw in September from the photoboard to the occasion when she sighted the appellant at the Local Court in February. We are not suggesting that the address of counsel is as good as a judicial warning or excuses the absence of a judicial warning where it is sought or clearly appropriate to have been given. Nevertheless, it is relevant in a context where r4 applies unless miscarriage is demonstrated (see generally R v Lewis [2003] NSWCCA 332). 83 The appellant cited R v Adamson (unreported, CCA 26 November 1992) and R v Marshall (2000) 113 A Crim R 190. In Adamson the Crown case depended entirely on identification evidence, the three identifying witnesses sat together in the foyer of the court, there was no evidence as to the array and, as Sully J there pointed out, the identified suspect may have been the only person of similar appearance. In Marshall the coexistence of several distorting effects and the absence of other evidence linking the accused gave the identification evidence a high order of prejudice. The conviction was quashed because it was not reasonably open. These two cases provide very limited assistance in the present appeal. 84 Rule 4 should be applied. This ground fails. Bilal Skaf Ground 2: The learned judge erred in directing the jury as to the meaning to be given to the term "beyond reasonable doubt" 85 The jury were told repeatedly in the written and oral directions that the Crown had to prove its case beyond reasonable doubt. The written directions also said: The expression "beyond reasonable doubt" means what it says. It is the highest level of proof in our system of law. Each of you as jurors knows the meaning of this expression. 86 In his summing up the learned judge said (emphasis added): Beyond a reasonable doubt means beyond a reasonable doubt. Three simple English words. If you have a doubt, and if it's a reasonable one, you should give the benefit of it to the accused. But the words mean what they say: beyond a reasonable doubt. They don't mean to the point of utter certainty . They mean what they say: beyond a reasonable doubt. 87 The appellant submits that the summing up was erroneous because of the words emphasised. Green v The Queen (1971) 126 CLR 28 is cited. It is submitted that the direction contained an implicit proposition that the jury could convict despite a residual uncertainty about the guilt of the accused. In positing the possibility of conviction based upon a state of mind less than certainty the judge significantly eroded the force in the concept of "beyond reasonable doubt". 88 It was further submitted that it was conceivable that a rational jury member might regard his or her own lack of certainty about guilt as constituting a reasonable doubt. Such a possibility was effectively eliminated by the direction complained of. 89 No redirection was sought. 90 No affidavit of trial counsel has been filed. 91 Appellate courts in Australia have urged trial judges times beyond number that they should not endeavour to exegete this golden thread of the common law (see R v Southammavong [2003] NSWCCA 312 for a recent discussion). 92 It would have been better for the trial judge not to have gone beyond the written Directions on this point. But there was no miscarriage and there is no reason why rule 4 should not be applied. 93 In the first place, his Honour's gloss was an accurate one. The jury had been told that the criminal standard was the "highest standard of proof we have in our system of law" (SU 7). But the expression "beyond reasonable doubt" does not mean to the point of utter certainty (see R v Maund, NSWCCA, unreported 16 December 1993). Secondly, and contrary to the appellant's submission, there was no implicit invitation to convict notwithstanding residual uncertainty (to an unexpressed standard or level). Thirdly, there was no attempt to confine what the jury might consider to be a reasonable doubt, beyond excluding (correctly) absence of utter certainty. Fourthly, Green is distinguishable because there were a combination of vices in the summing up in that case (see at 32-4) none of which are present here. Bilal Skaf Ground 3: The learned trial judge misdirected the jury as to the significance of the complainant's complaint on the night of 12 August 2000 94 This matter has already been addressed. At one stage in the summing up (p47) the judge observed that evidence of complaint was: … direct evidence that in fact she was raped as she claimed to have been by two men of whom Bilal Skaf is one. 95 The appellant submitted that the observation would have left the jury with the impression that the terms of the complaint in some way tended to prove that the appellant had raped the complainant. 96 In our view this is a fanciful reading of what in effect was a parenthetical comment by the judge. There was never a real issue about the complainant having been sexually assaulted and the complainant did not know the appellant's name at the time she made early complaint. The judge's remarks would have been understood as if there were a comma after "raped". In all probability, that is how they would have been expressed. Bilal Skaf Ground 4: The learned trial judge misdirected the jury as to the manner in which the jury should approach the alibi defence of the appellant 97 We set out above those portions of the appellant's second ERISP when he said in effect that he was at home on the night in question and that it was his cousin Ali Skaf who had gone to the park in the white van and had sexual intercourse with a young woman. 98 In the portion of the summing up dealing with the defence cases the judge told the jury that the statements made by the appellants in their ERISPs were evidence in their respective cases and had to be considered by the jury. A propos Bilal Skaf's second ERISP of 3 April 2001, his Honour said the following (SU 40-41, emphasis added): Well, he first starts off at page 100, question 832, by saying that he was at home, doesn't know where his brother was, him and his mates, he got a phone call saying they want to speak to Ali, and "Ali was with me at my house at Greenacre" – something that Ali in evidence denies. "Ali spoke to my brother and Ali took off that day. He told me he was going to Gosling Park and he had someone with him called Andre" and a man called Andre Saadi gave evidence and Andre Saadi said he knew Ali Skaf, he did know Bilal Skaf. He never met him and had never been to his house. So Bilal Skaf is saying in this interview that his brother went off with Ali Skaf, his cousin, to Gosling Park or rather his brother was after Ali, that would be more correct way of doing it. Ali went off to Gosling Park with Andre. He says that he is not clear about this day, that his brother he thought was there too. He does not know who they were, hasn't spoken to his brother about this matter at all. His brother, as far as he could remember, never told him he went off to pick up [Ms D]. He thought he might be hanging around with someone called Tayyab. He was asked about a red car and he said someone called Ghanem had a red car. He was asked about Michael. Doesn't give much information about that, says that he was at home with his mother and father. His mother was home. He did not know about his father and his cousin Ali was there and Andre. So, he is saying in what could be called classic terms, "I have an alibi. I was at home. I wasn't at the park. I was here." Well, two of the people who are said to have been there with him have been called to give evidence and they deny they were there so whether you accept this claim by him depends on whether you accept his claim although it is supported by no-one. Now, he has no obligation to call anyone to support him but that is just a plain fact. This is evidence in the proceedings, this statement. It is his case. It is not sworn evidence in the proceedings but it is evidence which you can take into account in his favour if you wish to do so or against him if you consider it is against him. 99 The portion bolded is said to involve an erroneous direction. The appellant submits that the judge misdirected the jury by telling them that the alibi depended upon whether they accepted what the appellant said in his interview with the police. It is submitted that this left the jury with a misleading impression as to the relevance of alibi. 100 The appellant cites the following comments of Roden J in Amyouni (NSWCCA unreported, 18 February 1988). This is a case in which an alibi defence was raised and it was such that if the alibi were true, then the accused was not guilty of the offence charged. It seems to me that in every case where that situation is met, there are three possibilities, all three of which should be explained to the jury. One is that they accept the alibi, in which event they would be obliged to acquit. The second is that they reject the alibi, in which case they would not necessarily convict but must assess the evidence as a whole. The third possibility is that although they do not accept the alibi, they also do not reject it in the sense that they regard it as something which could reasonably be true. In that event also, in such a case, they must acquit. In my view, it is the failure of the learned trial judge to refer to that third possibility which leads to the orders which are proposed and with which I agree. 101 It is submitted that the present jury should have been directed that there were three possibilities that they should consider in the context of alibi. The summing up was deficient because Judge Finnane failed to inform the jury of the third possibility that they might neither accept nor reject the alibi, in which event the appellant was entitled to be acquitted. 102 A related submission is the contention that the direction implied that there was an onus upon the appellant to prove his alibi. This suggested error was, the appellant submits, exacerbated by a later direction (SU 44) in which the judge told the jury (emphasis added): His [Bilal Skaf's] credibility is important here because his entire claim that he wasn't there is put in this statement. 103 General directions as to the onus and standard of proof are peppered throughout the summing up. The jury were also told that Bilal Skaf had "no obligation to call anyone to support him" (SU 41). 104 It may well have been open to the Crown to have relied upon the raising of a false alibi as consciousness of guilt, but this was not done. In fact the jury were directed (SU 44-45): Was he telling the truth when he said he was at home all day? Of course, many people have many reasons for telling lies. Sometimes they do it out of panic. Sometimes they just want to distance themselves from events but in general terms, if someone is telling lies, then you don't give what they say terribly much weight. You don't place too much reliance on it unless it supported by something else. 105 Unlike Amyouni, the judge did not invite the jury to look only at the Crown case to the exclusion of everything else in the event of rejecting the alibi. His Honour made it quite clear that the onus of proof lay on the Crown in all matters. 106 Despite the use of the word "alibi" on one occasion, his Honour did not embark on a set of formalised "alibi directions". He simply pointed out that the appellant said that he was home and that "two of the people who are said to have been there with him … deny they were there". 107 There is no basis for the submission that the trial miscarried in consequence of these directions, which were quite favourable to the appellant. 108 Rule 4 applies. This ground fails. Bilal Skaf Ground 5, Mohammed Skaf Ground 2: The learned trial judge's discretion miscarried in relation to the application that the jury be discharged as a result of media publicity relating to the conviction of the appellant and his co-accused at an earlier trial in relation to other offences 109 The jury were empanelled on Monday 1 July 2002. On the previous Thursday, 27 June 2002, verdicts were delivered in the trial of the two present appellants and others in relation to a series of sexual assaults and other crimes against a young woman who was picked up by a group of young men as she travelled by train and was sexually assaulted at Bankstown and other places. That trial was the subject of appeals decided on 7 April 2004 (R v Chami, M Skaf, Ghanem, B Skaf [2004] NSWCCA 36). 110 There were suppression orders in relation to the names of the complainant and the names of the accused at the earlier trial. 111 The Daily Telegraph published a two-paged article relating to the verdict on 28 June. The article was accurate and the non-publication orders were complied with. The focus of the story was the suffering of the complainant and her sense of elation at the guilty verdicts. The language of the article was graphic in places and its heading was "THE MOMENT A GIRL WAS LED TO HER DEGRADATION". 112 After the commencement of the present trial, on the morning of Tuesday 2 July 2002, application was made for the discharge of the jury by counsel representing each accused. 113 They pointed to the following aspects of the Daily Telegraph article as cause for concern: • in the article Bilal Skaf and Mohammed Skaf were referred to as "X" and "X1", their ages were given and it was said that they were brothers. The pseudonyms "X" and "X1" had been used in the present trial. • a reference in the article to one of the assailants having spoken about "Leb style" sexual intercourse would have alerted the reader to the nationality of origin of the assailants. • the dates and locations of the incidents were close. • there was a reference to a Samoan woman in the Daily Telegraph report and a reference to an Islander as having made threats in the present case. 114 The application was refused. The judge did not agree that the present accuseds' right to a fair trial was compromised. He pointed out that the facts of the two trials were utterly dissimilar. The use of the pseudonyms "X" and "X1" and references to Lebanese was of no consequence, especially given the large size of the Lebanese community in Sydney. There was no similarity between the report and the evidence as to the involvement of the Samoan/Islander woman. 115 His Honour concluded: Juries are taken by the Courts these days to exercise some degree of commonsense and to follow the directions of judges. For my part I do not believe the jury should be discharged unless there is a very strong reason for doing it. The fact that somebody may have deeply read an article last week and carefully analysed it, to enable them to draw the conclusion that what is said to be open is, I would think, somewhat remote as a possibility. It is quite possible that everybody on the jury may have scanned the article and even read bits of it. There is no reason to suppose that any of them would be influenced in the way in which they come to their conclusions in the case by what that reporter reported having occurred in previous cases. I propose to direct them a number of times during the trial that they should ignore any newspaper article or commentaries. I have already told them to do that and I decline to discharge the jury. 116 In our view, these reasons disclose no appealable error. It was well within the proper exercise of the trial judge's discretion to refuse to discharge the jury. 117 The reference to "would" instead of "could" in the opening sentence of the second paragraph is said by the appellants to betoken error. We disagree. Certainly at this stage more must be shown than the mere possibility of prejudicial information coming to the attention of the jury. We are not persuaded that the appellants failed to receive a fair trial or that there was a miscarriage of justice by means of this newspaper article (cf The Queen v Glennon (1992) 173 CLR 592 at 603). 118 The pseudonyms of the accused were changed to "M1" and "M2", at the request of counsel for Bilal Skaf. 119 We deal with Bilal Skaf's remaining ground of appeal after addressing the particular grounds raised by Mohammed Skaf. Mohammed Skaf 120 At the initial hearing in this Court Mohammed Skaf pressed seven grounds of appeal. 121 One of them (Ground 2) was identical to Bilal Skaf's Ground 5. Another (Ground 9) was identical to Bilal Skaf's Ground 2. We have considered and rejected the arguments in support of these grounds in our reasons relating to Bilal Skaf's appeal. 122 The remaining grounds were confined to Mohammed Skaf's appeal, except for the ground relating to juror misconduct addressed below. 123 Before we address them, we reiterate the basis upon which the case against Mohammed Skaf went to the jury. 124 The count against Mohammed Skaf charged that he was an accessory before the fact to his brother's crime. 125 The jury were told that Mohammed Skaf had to be acquitted if his brother Bilal was acquitted on the charge relating to the sexual assault perpetrated by Bilal Skaf himself. 126 As the case was fought and went to the jury, the Crown had to prove that Mohammed Skaf knew that Bilal Skaf was intending to have sexual intercourse without consent and in company of at least one other person. In addition the Crown had to prove that he encouraged and assisted Bilal Skaf to carry out that crime. 127 The Crown case was that Mohammed Skaf's part in his brother's crime was … to entice the complainant to accompany him in a car, then to take her to Gosling Park, then to seek to induce her to engage in sexual activity and then, when she proved unwilling to do so, to persuade her to remain in the park until Bilal Skaf and the other men, with whom he had been in constant communication by mobile phone, arrived in the park to seize her. On the Crown case, his part in the crime was complete when he left her in the company of Ibrahim and then himself left the vicinity. (Directions of Law §6) 128 There was little or no dispute as to Mohammed Skaf's conduct. The critical issue was his state of knowledge and his intent in bringing the complainant to the park and leaving her (at least temporarily) shortly before she was sexually assaulted. 129 Before they could convict, the jury had to be satisfied to the criminal standard that Mohammed Skaf's intention was to make the complainant available to his brother and that he was doing this so that his brother could have non-consensual sexual intercourse. 130 The Crown case was circumstantial. Its key planks were: • The complainant had agreed to go with Mohammed Skaf for a drive to the city. Instead she was taken with two other men to a suburb and park that she was unfamiliar with. • The mobile phone calls passing between the brothers and the fact that a rendezvous was effected at the park indicated that Mohammed Skaf arranged for his brother to come to the park. • The implausible story about the $600 debt was followed up by an argument between Mohammed Skaf and his friend Ibrahim, which the complainant perceived to be feigned. • Mohammed Skaf walked away leaving the complainant in the company of Ibrahim (in the first instance at least). There was no apparent reason for this conduct beyond the doubtful $600 debt story. • Mohammed's Skaf's conduct after the sexual assault (discussed below) was said to indicate his consciousness of guilt. 131 It will be apparent from this summary that we would reject the Crown's submission that the proviso should be applied in the event that any of the grounds of appeal particular to Mohammed Skaf are upheld. The Crown case had considerable weight, but a conviction was by no means inevitable. The ERISP contained no admission of Mohammed Skaf having set up the complainant or being privy to his brother's intent to sexually assault. 132 With these preliminaries we turn to the remaining particular grounds of Mohammed Skaf's appeal. 133 It is convenient to address these grounds in a particular order. Mohammed Skaf Ground 8: The trial judge erred in failing to properly instruct the jury in relation to the appellant's refusal to answer questions in his record of interview 134 Mohammed Skaf was arrested on 14 March 2001. He was interviewed in the presence of his father and his solicitor. 135 The video and transcript of his ERISP were tendered by the Crown and admitted without objection (Exx C35, C36). This occurred almost at the end of the trial. The jury were invited to view the video in their room (Tr p276). They were given no directions at that stage as to how they should approach that task. 136 Mohammed Skaf was cautioned at the outset of the interview. He answered preliminary questions about his name, address and schooling. 137 Then commenced a series of questions about the alleged offence which, with few exceptions, the appellant declined to answer. In effect he exercised his right to silence although some answers were interspersed with assertions that he did not know anything about the matter generally or particular aspects of it. Thus, the opening questions and answers (after the preliminaries) were: Q24 OK. Mohammed, as I've already told you I'm investigating your involvement in the sexual assault upon [Ms D] at Gosling Park on the night of the 12th August 2000. Do you know anything at all about this matter? A. No. Q25 Do you wish to be interviewed about it? A. No. 138 Later he said "I don't know nothing about it. I don't want to get questioned about it, that's it" (Q & A 48). 139 The address of the Crown Prosecutor reveals that answers of the kind given to Q24 (which arguably contained admissions) were not treated by the Crown at trial as lies. Certainly no Edwards direction was sought in relation to any part of the ERISP (cf Edwards v The Queen (1993) 178 CLR 193). 140 The written Directions and the summing up addressed the appellant's silence at trial. But nothing was said to warn the jury not to draw adverse inferences from his refusal to answer only some of the questions in the record of interview. Nor was any such direction given at the time (very late in the trial) that the video and transcript of the ERISP were admitted into evidence without objection (Tr p276). 141 No directions were sought on these matters. 142 It was not open to the jury to draw an inference unfavourable to this appellant from his (selective) refusal to answer police questions (Evidence Act, s89). 143 In R v Reeves (1992) 29 NSWLR 109 Hunt CJ at CL said (at 115): However, where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given – as soon as the evidence is given and, if necessary, again in the summing up – to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty: R v Astill (Court of Criminal Appeal, 17 July 1992, unreported) at 9. It would usually be appropriate also to remind the jury that (if it be the fact) the accused had specifically been cautioned by the police that he was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal investigation procedures. 144 In the present case, there was not only an absence of these customary warnings about inferring guilt from silence in the face of police questioning. There were in fact positive directions to the jury to the effect that the record of interview was evidence in the case. Thus, at SU 39, his Honour told the jury: Although each accused gave no evidence, each was interviewed by the police, and what they say is evidence in each of their cases and must be considered by you. 145 Mohammed Skaf's Ground 3 (below) deals with a direction as to the use of a particular lie told in his ERISP. In the course of giving the direction adverse to the appellant's case that is the subject of that ground, Judge Finnane said (SU 45): Apart from denying everything and being largely non-responsive, as he was entitled to be, he utterly denied having spoken by telephone to Constable Adam Walsh. 146 In this Court the Crown points to the words "as he was entitled to be" and submits that this direction satisfied the obligation discussed by Hunt CJ at CL in Reeves. The Crown further invokes rule 4 in relation to the present ground of appeal. 147 In our view, the passing remark ("as he was entitled to be") did not satisfy the principles summarised in Reeves, but the absence of request for redirection leaves matters finely balanced, in light of r4. Nevertheless, this ground forms a backdrop to those addressed below. Taken together they explain why we have concluded that Mohammed Skaf is entitled to a new trial. Mohammed Skaf Ground 3: The learned trial judge erred in directing the jury that they could use evidence of lies allegedly told by the appellant to establish that the appellant had a tendency to act in the manner alleged by the Crown in the commission of the offence 148 On 14 March 2001 Mohammed Skaf telephoned the police service switchboard. He identified himself by providing his name, and by the content of the conversation. He asked to speak to Detective Peter Walke at the Bankstown Police. He was transferred to the Bankstown Police Station and spoke to another detective Adam Walsh. 149 Referring to the girl involved in his brother getting "locked up", Mohammed Skaf told Detective Walsh: the girl was my ex girlfriend…um, I've got her voice recorded … I've got her on video camera, I've got everything of her and you know that bullshit story that you fuckin' made up…. I've I promise to God, mate, youse are gunna get sued, mate. I've got the tapes. I've made six copies of these tapes. Are you listening? Tell him I've got six copies: one for him to shove up his arse, one for my barrister, one for the fuckin' court, one for every fuckin' Tom, Dick and Harry, mate. All I want to say, mate, is that I'm gunna fuckin' sue this mother-fucker. All right? You tell him that message. All right? Because I've got it recorded and that bullshit story of yours, oh my gosh, what's gunna happen, mate. I promise to God, mate, I've got her voice recorded from A to Z on video camera, you name it. All right? You tell him that… 150 Later he referred to the complainant by her given name. He asked the detective if he wanted to "meet up with me at court today". 151 Later parts of the phone call (which was recorded) suggest that Mohammed Skaf was making the call in the presence of others, including possibly his father who took over the conversation and who was (understandably) in an emotional state. 152 On one view this was a hamfisted attempt by Mohammed Skaf to bluff the police into dropping the prosecution of his recently arrested brother. The call represented an emotionally-charged, senseless, self-defeating and probably unlawful attempt by a seventeen year old boy to deflect the prosecution of his older brother Bilal who had been arrested the previous day. 153 Nothing in the conversation reveals that Mohammed Skaf perceived that he was himself at risk of being charged. In the circumstances, he would only have perceived such a risk if he was actually complicit in some way. Yet it would be circular to infer this in a situation where the content and context point towards him being motivated at least by the desire to assist his brother. 154 Later that day, after his own arrest, Mohammed Skaf participated in the ERISP to which reference has already been made. He was asked about the conversation with Constable Adam Walsh and details of that conversation were put to him (Q & A 60-66). He said "I don't know what you're on about" and denied that he had made the threats concerning the complainant. 155 These were obviously stupid lies. But did they betoken more? What light, if any, did they throw upon the issue of Mohammed Skaf's own guilt? In one sense the threat directed at the complainant was more serious than the denial in the ERISP that the conversation had taken place. Was it open to the jury to have regard to that threat? Was there a risk of miscarriage if they chose to do so without proper directions? 156 In her address to the jury, the Crown Prosecutor built up the Crown case against Mohammed Skaf by referring firstly to his invitation to the complainant for a date. She described his conduct in the following terms (Tr p326): This crime was always going to a sexual assault without consent in company. That was the whole plan, the whole scheme you might easily conclude. There was never going to be just Bilal Skaf and this was never going to be just some kind of blind date set up for Bilal Skaf. This was a well orchestrated plan, ….. 157 The prosecutor then referred to a series of "deceits" practised by Mohammed Skaf which would not have been embarked upon if this had been an innocent night out (Tr pp330-1). The deceits included turning up with two friends when he had said that he was coming by himself and his denial that his name was Mohammed. The prosecutor referred to the staged or feigned verbal argument between Mohammed Skaf and Ibrahim. 158 The prosecutor painted a picture of Mohammed Skaf as a deceitful and uncaring person. But, of present significance, she did not seek to build a case upon the threats contained in the phone call to Detective Walsh or the lie denying that the call had been made in the ERISP later that day. There was only a passing reference to the: … rather extraordinary phone call for a sixteen year old boy, saying or trying to say to Constable Walsh that he has videos of something or other that would prove that [Ms D] was a liar. Well, of course, when he was asked about that he was unable to produce anything of that kind. (Tr p350). [Mohammed was in fact 17 at the time of this phone call.] 159 The summing up contained the following direction (SU 45-6, emphasis added): In the case of Mohammed Skaf, he gave one interview and that is I think C35 and the transcript C36. Apart from denying everything and being largely non-responsive, as he was entitled to be, he utterly denied having spoken by telephone to Constable Adam Walsh. Well, you have got the transcript of that telephone call C28. His voice is identified and, indeed, he identifies himself on the telephone, tells the Constable who he is and makes it clear in quite strong terms what he is going to do to the Constable and, indeed, everyone else, going to sue them and do various other things. He denies making that call. That seems to be a false claim because he did make that call. The evidence is clear that he made that call. So you have got to say to yourself: Why does he make that false claim? What does this say about him? But he has given two versions. He has not sought to put forward anything of a positive nature. So, you cannot say credibility directly arises as it does with his brother. It may arise indirectly in this way. The Crown case is that he acted deceitfully. He tricked this girl into coming with him on this night. He then continued to trick her claiming he was going to a park to pick up money, claiming that she should stay with this man to collect the debt, persuaded her to stay, being promised to protect her. All these things, the Crown says, are deceits and deception of, well, a perpetrator who tells lies. I suppose you would have to look at that question when you think a person who tells lies might engage in deceit. However, of course, the fact that he tells lies to Constable Adam Walsh does not in itself prove that he was acting deceitfully on the night. His case is that he wasn't acting deceitfully. His case is that the Crown hasn't proved he had this intention. The matter doesn't depend on his credibility. It depends on whether the Crown satisfied you beyond reasonable doubt that he did have such an intention. 160 In our view this was a significant misdirection. Notwithstanding rule 4, we would uphold this ground of appeal. 161 The judge effectively invited the jury to consider the appellant's guilt on the offence charged by reference to the lack of credibility evidenced in his false denial (in the ERISP) of having made the phone call. And the judge linked this direction to the Crown case that the appellant "acted deceitfully" in tricking the complainant into coming with him on the night in question. The jury were invited to consider the matter before them on the basis that the appellant was "a person who tells lies". 162 This was in effect a direction to use the lie in the ERISP as tendency evidence, contrary to ss95, 97 and 101 of the Evidence Act. The Crown prosecutor had not raised this possibility in her address. Nor had the procedural and substantive safeguards in the Evidence Act been addressed or considered. And the probative value of the evidence did not substantially outweigh its prejudicial effect. 163 The direction that "the fact that he tells lies to Constable Adam Walsh does not in itself prove that he was acting deceitfully on the night" left as much harm as it removed. On one reading, it endorsed the use of the lie as a basis for inferring deceit, merely warning that it could not be used for that purpose unless supported by additional evidence. 164 We uphold this ground. Mohammed Skaf Ground 4: The learned trial judge erred in failing to direct the jury that they were not entitled to use evidence of the appellant's conduct after the alleged offence was committed to establish a consciousness of guilt on the part of the appellant 165 This Ground is related to the one just dealt with, but it covers a wider factual area. 166 As formulated, this ground is slightly overstated. But the nub of the complaint is clear. 167 The Crown prosecutor did not invite the jury to regard Mohammed Skaf's false denial in his ERISP of having spoken to Constable Walsh as evidence of guilt. However, the jury were invited to make such use of a phone call made on 13 March 2001 to the complainant's mobile, but received by Detective Anne Thoms, a police officer who posed as a friend of the complainant (Exx C15, C16). In this conversation Mohammed Skaf offered to send certain pictures to the complainant for her "to see if its him [Bilal] or not, cause now he's locked up cause of this shit". Mohammed also indicated some concern that he too might be charged, … "you know how coppers are they just want to put people into shit like that". 168 The prosecutor invited the jury to infer from this material that Mohammed Skaf (a) did not care that the complainant had been sexually assaulted by his brother; and (b) was a party to a plan to make telephone calls designed to intimidate the complainant and that these matters made it more likely that he was guilty of the offence charged (Tr pp352, 353). 169 This strikes us as something of a long bow. One view of the conversation is that Mohammed Skaf wanted to show the complainant some pictures referable to her identification of his brother. The conversation is not necessarily minatory in tone. In any event, the prosecutor's approach had to walk a very narrow line. It also called forth a need for careful directions to ensure that the jury did not slip into tendency reasoning. And, in the particular circumstances, it created the need for the jury to be warned against using the evidence as consciousness of guilt, without first considering other hypotheses such as rash conduct in aid of Mohammed's brother Bilal. 170 Unfortunately, the directions merely raised the possibility that lies and other discreditable conduct after the alleged offence might be taken into account by the jury. The directions failed to assist the jury as to how this should be done, beyond stating, in relation to the lie about phoning Constable Walsh: "Why does he make that false claim?" (SU 45) and in relation to the call to Detective Thoms: Was he doing that to assist his brother's case or to assist his, or to assist both? Why was he seeking to make contact with [Ms D]? (SU 51) 171 In light of Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234, there were substantial deficiencies in the assistance given to the jury in the tightly-balanced, mainly circumstantial case involving Mohammed Skaf. Even though the Crown did not invoke the lie as evidence of guilt (cf Dhanhoa v The Queen (2003) 77 ALJR 1433 at [29], [34], [58]) the trial judge opened up that possibility in his directions. Having done so, he should in the particular circumstance have proceeded to give the customary warnings on that topic. The Crown had raised the call to Detective Thoms as evidence of consciousness of guilt (and tendency also). This too called for careful directions to ensure that unfair and inappropriate reasoning did not take place. 172 This ground is upheld. Mohammed Skaf Ground 5: A miscarriage of justice was occasioned by the admission of evidence of the complainant to the effect that she believed the appellant was guilty of the offence charged. Mohammed Skaf Ground 7: The trial judge erred in failing to direct the jury to ignore the inadmissible evidence of the complainant to the effect that she believed the appellant was guilty of the offence charged. 173 When recounting the events at the park, before the assaults, the complainant gave evidence as to her impressions and beliefs. Sometimes she did so by way of a debatably non-responsive answer to a question about what happened. None of this evidence was objected to. 174 Thus, in response to a question about whether she knew the content of the phone calls made or received by the first Sam or Ibrahim, she said she did not, adding (Tr p59): So Ibrahim stayed with me and Sam and Michael went, and by this stage I had already, I'd worked out what was going on. I'd worked out that. Personally I didn't think there was any guy that owed Sam money …. 175 Later (at Tr p60) she included in an otherwise responsive answer about what happened: … and so things started to seem not right, things weren't right. 176 She also said that the argument between Ibrahim and Sam was "staged … in front of me" (Tr p60) and explained this conclusion as follows (Tr p61): I didn't believe anything they were saying. I believed they were just having their way with me. The way that Sam stayed in the car with me and then Ibrahim stayed in the car with me and were both really sleazy. I just assumed that it was, it just seemed all set up, it seemed like it was all organised what they were going to do. The argument didn't seem right, because at times he would give Sam a bit of a smile. Then, you know, they got angry with each other again and I said to Sam, I said: "Fine, well, I'm walking home" and I said that to him: "Fine, I'm walking home. You're not leaving me with these people" and he said: "This is a dangerous area, you never know what will happen". He said, "Stay here until I get back. Stay with Ibrahim until I get back". See also Tr p 144-5. 177 In giving evidence of Mohammed Skaf's phone call to her while she was waiting to be picked up by her boyfriend Zoltan after the assaults, the complainant said "And he acted like nothing happened, like he didn't know that anything happening, but I know that Sam knows – I know that he knew. I knew he organised it. It was just too obvious. It was just too obvious, he should have been smarter the way he organised things" (Tr p76). This portion of evidence was not objected to. Indeed, the complainant was later cross-examined about it (Tr pp145-6). She agreed it was an assumption on her part, adding (Tr p146): Things just weren't right. They weren't right and I knew just the way he left me so many times, the way he lied to me that he was coming by himself, just everything just convinced me and the way he kept leaving me with one person at the time and it took two people to get the money that Sam was owed. He didn't go the first time. I'm not stupid. I put it together myself and I still believe it to this day, they organised it. 178 The Crown prosecutor made several references to this evidence in final address. She read it to the jury and submitted "That much was clear to her … on that night because he knew before it happened what was going to happen and that is why he kept her to there to facilitate the rape by Bilal Skaf" (Tr p341). 179 In this Court, counsel for Mohammed Skaf accepted the admissibility of the complainant's impression about the verbal fight between him and Ibrahim being feigned. And it was recognised that the failure at trial to object to any of the other evidence about the complainant's impression and beliefs meant that rule 4 had to be overcome. 180 Mohammed Skaf did not press a ground of appeal suggesting that the prosecutor had acted improperly in leading or permitting this evidence or in relying upon it in her final address. But he presses the submission that the trial miscarried because of the use made of the complainant's evidence of her belief that Mohammed Skaf had organised her sexual assault by his brother. 181 The grounds pressed in relation to this material contend that the trial miscarried because the jury were presented with a block of compelling but inadmissible evidence from the complainant, effectively as to the ultimate issue. It was opinion evidence that was irrelevant and inadmissible (Evidence Act, s76; Smith v The Queen (2001) 206 CLR 650). 182 It is submitted that the judge should at least have directed the jury to disregard this evidence because it was irrelevant. Alternatively, careful directions were called for, if only because the charge against Mohammed Skaf required proof of advance knowledge that his brother's crime was planned. 183 The Crown invokes rule 4. It is further submitted that the complainant's impressions did no more than spell out that which was implicit in the totality of her evidence. 184 Alternatively, the Crown points to s78 of the Evidence Act which permits a lay person to give an opinion (provided it is relevant) if (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. This highly debatable proposition was not considered at trial and we refrain from expressing our final views on it. If admissibility on this basis is to be pressed at a new trial then close attention will need to be paid to s78(b) and its application to the particular facts and circumstances. Section 78 is also an unlikely candidate for allowing evidence to be given about the earlier-formed motives of an actor whose conduct is observed by a witness. On the other hand there is material about the complainant's perception of the appellant's motives at the time of the feigned argument with Ibrahim which could possibly be admissible pursuant to s78. Once again, it will require close attention to ensure that the putative relevance of such material is kept squarely in focus. 185 We have not found this ground of appeal easy to resolve. Strictly, it is unnecessary to do so because there must be a new trial for Mohammed Skaf in any event. We are confident that greater attention will be taken about this matter at that new trial. 186 If this ground stood alone, we would not uphold it. Senior counsel for Mohammed Skaf has not suggested that the principles in R v Birks (1990) 19 NSWLR 677 are engaged. No affidavit has been filed from trial counsel. There is the possibility that this evidence was allowed to run because defence counsel was content to have the complainant embrace explicitly that which she obviously embraced implicitly, in the hope that the jury might give the defence the benefit of a reasonable doubt because the Crown had "gone over the top". The Crown submitted in this Court that the opportunity to attack the complainant's opinion provided a platform to attack the Crown case. The significant possibility that the defence case at trial was conducted on this basis precludes a finding of miscarriage, leaving rule 4 in place (see TKWJ v R (2002) 193 ALR 7 at [27]). Bilal Skaf Ground 6, Mohammed Skaf Ground 10: Miscarriage by reason of juror misconduct 187 In light of the information referred to below, the Court gave leave to each appellant to add an additional ground of appeal. 188 Bilal Skaf's new ground (Ground 6) was that: The trial miscarried by reason of a juror attending the scene of the alleged crime and informing himself as to the state of the lighting at the scene of the alleged crime. 189 Mohammed Skaf's new ground (Ground 10) was that: The trial miscarried by reason of the conduct of two jurors prior to verdict. 190 At the close of the summing up, the jury retired to consider their verdict shortly after 10.00am on Wednesday 10 July 2002. At about 3.15pm a note was sent to the judge: Could we please go home at 3.00pm? A decision has not been reached. Can we come back tomorrow? 191 The judge told the jury that he found the note a bit puzzling. If the jury had not reached a decision, that suggested that it needed to keep deliberating. If the jury went home early, how could they keep deliberating? The judge asked whether there was some matter on which the jury needed assistance. 192 The foreman told the judge that "we are hoping to have the decision by tomorrow". Finnane DCJ asked why the jury wanted to leave an hour early. How would that help the jury get to a decision tomorrow? The foreman answered: There's a little bit of frustration. 193 The jury were released at 3.24pm. The three verdicts of guilty were announced at 11.49am the following day. 194 On about 24 February 2004 the Registrar of the Court of Criminal Appeal was notified of information indicative of possible juror misconduct. A solicitor, unconnected with the parties, had written to the Public Defender with information about a conversation with a man known to her who said he had been on a jury involving "the Lebanese guy" who got 55 years for rape. The conversation had given the solicitor the impression that the juror had taken into account information obtained when he "went to the park" that was not evidence in the trial. 195 The solicitor should be commended for her professional responsibility in bringing this matter to the attention of the proper authorities. 196 The Public Defender in turn passed the letter on to the Director of Public Prosecutions. The Acting Solicitor for Public Prosecutions forwarded it to the Registrar. A copy of the letter from the Acting Solicitor for Public Prosecutions was forwarded to representatives of the parties in this and related appeals and to the Sheriff of New South Wales. 197 This information was received at a time when the Court was about to deliver judgment in three appeals in each of which Bilal Skaf was an appellant and in each of which critical events had taken place in a park. 198 The appeals were listed for directions on 4 March 2004. The Court informed the parties about the communication received by the Registrar and that the Sheriff would be conducting further investigation. 199 The Court invited the assistance of the Solicitor General or Crown Advocate in relation to the issues involved in this new matter. We are grateful for the submissions subsequently provided by Mr Sexton SC SG and Mr Cogswell SC. 200 The information in the letter to the Registrar had no bearing on the issues raised in R v Tayyab Sheikh [2004] NSWCCA 38. Judgment in that matter was therefore handed down on 4 March 2004. When, subsequently, it became clear that the information had no bearing upon the appeals in R v Chami & Ors [2004] NSWCCA 36 and R v Bilal Skaf, Mohamed Ghanem and Belal Hajeid [2004] NSWCCA 74 the judgments in those appeals were handed down on 7 April 2004. 201 On 23 March 2004 the Sheriff reported to the Court the outcome of his inquiry. 202 The information provided by the Sheriff included a statement from the solicitor who had made the initial disclosure as well as two statements from "Juror 3074295". These statements in their original form were exhibited to an affidavit by Acting Chief Inspector Murray, the Sheriff's officer who conducted the investigation at the direction of the Sheriff. Annexed to the affidavit were statements from the solicitor who had made the initial disclosure and a statement by an person identified to the parties as "Juror No 3074295". It was the latter statement that provided the substantive material relevant to the issues raised by the new grounds of appeal. 203 The Court received written and oral submissions directed to the admissibility of the juror's statement and the substantive issues in the new grounds of appeal. The admissibility of the juror's statement 204 The juror said this about the visit to Gosling Park: 1. This Statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything, which I know to be false, or do not believe to be true. 2. I am 64 years of age. 3. I am a carer for my wife and have been for about 2½ years. Before that I worked as a studio manager. 4. I was the jury foreman for the Skaf trial. After all the evidence had been given, the jury were considering the verdict. We were doing this for about 9 days; I think we started this on 1 July 2003 [sic] . One afternoon, maybe the 10th of July, as the foreman, I asked the Judge if we could go home early, as there was a little bit of frustration between the jurors. I think it was the day before the verdict. He let us go home early at about 2-2:30pm. 5. I went home. I was thinking about the trial. I didn't say anything about the trial, not even my family. At about 7pm, I called one of the other jurors whose number I had. We had a discussion and both decided to visit the Gosling Park in the vicinity of Bankstown. I prefer not to divulge this person's name unless the court directs me to. 6. He came to my place here and both went to Gosling Park in my vehicle. We got there about 8.15pm. I parked on either Chiswick Road or Hillcrest Avenue where there was a parking area. In the park, there was a cricket ground and a picnic area with tables and stalls, a gazebo. I also saw two concrete tanks. 7. We had a look around, walked through the park; we walked together the whole time. There was some people there playing cricket and a few people playing soccer with each other near the car park. 8. The weather was calm, it was dark. It was a beautiful night; I had a light jacket on and was comfortable. It wasn't cold. 9. Where we walked is shown as a dotted line on the diagram (marked annexure "A") attached to this statement. I saw the lighting of the park. I saw that the lighting was very clear. I could easily see the other juror at all times. On two or three times at several different spots on the park, I don't recall exactly where but he and I separated a short distance from each other, say about 2-3 metres. I asked him "Can you see me clearly?" He said, "Yes". At other times he asked me the same question and I would answer. On each occasion, our answer was "yes". 10 We spent about 15 to 20 minutes there. We got back into the car and went back to my place. We arrived back about 8.45-9pm. The other juror left soon after we arrived back. 11. I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right. I wanted to be sure my decision was not in any doubt before the verdict. I did not tell anyone else in the jury about this visit. The only juror who knew about the visit was the one who was with me. 205 The diagram indicates the path followed by the two jurors. They walked back and forward across the park and near two tanks. The diagram depicts a row of four lights between the park and a "soccer ground". The jurors do not appear to have gone onto that ground. 206 The accuracy of the statement was not challenged in the appeal. The juror's reference to the jury "considering the verdict" for about 9 days needs to be read as a reference to the duration of the whole trial (which commenced on Monday 1 July 2002 and culminated in verdicts on Thursday 11 July 2002). 207 The appellants submitted that this evidence was admissible except for the last sentence. That sentence was said to contain inadmissible evidence as to the state of mind of other members of the jury. 208 The Crown submitted that what transpired between the jurors at the park related to their deliberations and was therefore inadmissible. The point was, we think, taken as regards the totality of the juror's statement; but it was particularly pressed as regards pars 9 and 11 (with the exception of the last two sentences in par 11). 209 The Solicitor General offered general assistance as to the identification of evidence regarding matters extrinsic to the jury's deliberations. He submitted that a portion of par 9 (commencing from "I saw that the lighting was very clear" to the end of the paragraph) and par 11 should be excluded. 210 Since as long ago as Lord Mansfield's judgment in Vaise v Delaval (1785) 1 TR 11, 99 ER 944 courts have refused to receive evidence from former jurors as to their deliberations in the jury room. That was a motion to set aside a verdict, upon an affidavit of two jurors who swore that a coin was tossed to break a deadlock. Lord Mansfield CJ said: The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means. 211 The principle is well established (see eg R v Rinaldi and Kessy (1993) 30 NSWLR 605 at 610-11, R v Mirza [2004] 2 WLR 201). The exclusionary rule is based on considerations of public policy that should inform decisions as to its scope and application (see generally R v Pan [2001] 2 SCR 344 at [48]-[52]). The exclusionary principle is based on the need to promote full and frank discussion amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisals, and (to a degree) to maintain public confidence in juries. 212 Consistent with this rationale, the rule of preclusion encompasses at least evidence about discussion amongst jurors in their deliberations as well as evidence from jurors as to their individual thought processes referable to the verdict in which they participated (cf Ellis v Deheer [1922] 2 KB 113 at 117-8, Mirza at 218 [41], 226 [76], 233 [99]). A very useful summation is offered by Arbour J in Pan (at 386 [77]): In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield's rule is as follows: statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors' minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict. 213 In Rinaldi, this Court said (at 613): That the community is intent on protecting jurors from harassment or indeed, the soliciting of information from them during their deliberations has been made explicit in the Jury Act 1977 , s68 and s68A. It is in the public interest to ensure that the word "deliberations" in those provisions should be given the widest possible meaning. Both the "spirit and letter" of these provisions need to be fully recognised and emphasised. 214 It is equally well established that there is no blanket exclusion of evidence of matters extrinsic to jury deliberations directed, nevertheless, at establishing miscarriage based on jury misconduct or the consideration of material not admitted into evidence (see eg R v Emmett (1988) 14 NSWLR 327, Mirza at 234-5 [102]-[107]). In R v Minarowska and Koziol (1995) 83 A Crim R 78 the authorities were reviewed by Gleeson CJ, who summarised them as follows (at 85): A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury, and evidence, sometimes described as relating to "extrinsic matters", which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury ( Rinaldi (1993) 30 NSWLR 605; 68 A Crim R 284), or that a sheriff's officer wrongly intruded into the jury's deliberations and expressed a view that the accused were guilty ( Emmett (1988) 14 NSWLR 327; 33 A Crim R 340), or that a jury bailiff suggested to a jury that an accused had previous convictions ( Brandon (1969) 53 Cr App R 466), or that a juror was drunk, or could not speak English, or refused to participate in deliberations ( Tuia [1994] 3 NZLR 553). 215 Recently, this Court set aside a conviction in light of evidence that jurors had conducted internet searches disclosing inadmissible and prejudicial material about the accused (R v K [2003] NSWCCA 406). Wood CJ at CL (with whose reasons Grove and Dunford JJ concurred) drew a distinction (at 13) between the material which related to the internet searches made by individual jurors and then communicated to the remaining jurors; and material relating to the use which was made of that information by the jurors, either individually or collectively, in coming to their verdict. 216 The case law reveals that the distinction between material extrinsic and intrinsic to deliberations may not always be easy to draw in practice. Questions might also arise as to whether the jury are deliberating at times and places other than when the jury as a whole has retired to consider their verdict. Sometimes distinctions are suggested between things said and things done or observed during deliberations. 217 These difficult questions are not thrown up in the present case. 218 The Crown and the Solicitor General submitted that there is no reason why deliberations need be confined to the jury room nor need to take place in the presence of all jurors. The Court was taken to the remarks of Bankes LJ in Ellis at 117-118 referring to the exclusion of evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. 219 This passage does not assist the argument, because it is obviously and expressly confined to deliberations involving the whole jury when they are "considering their verdict". In our view, it is entirely circular to reason from this to a proposition that the jury (or any group from the jury) are in such a position whenever they are together, even when doing something in relation to the trial. The law is not so unreal as to assume that if two jurors travel home by train together their discussions about the trial, even about its possible outcome are part of the deliberations of "the jury". 220 In R v Locchi (1991) 22 NSWLR 309, the jury had retired and commenced their deliberations. On a day when one of its number did not attend through illness the remaining jurors were directed by the trial judge that they were permitted to discuss the case if they wished, "provided that you do not come to any final conclusions until you are all together as a full jury". It is not known what the jury did during the absence of one of its number, who returned two days later. After further directions and a further two days of deliberations the jury returned verdicts of guilty. This Court rejected the argument that the trial had miscarried. Samuels JA said (at 315) that: … it is the experience of all those who have been involved in jury trials, particularly criminal trials where there are juries of twelve, that sometimes a juror is late and the other jurors spend some time together in the jury room. Always the jurors of necessity arrive at different times, so that assembling in sequence, in series as it were, in the jury room is routine. It can scarcely be presumed that as they come in, they do not talk about the case. So that it is very likely that in almost every trial there is some discussion about the case, not involving the whole of the jury. Similarly, even after retiring a jury now, by s54 of the Jury Act 1979 , is permitted, if the judge so orders, to separate; and it might very well be that two jurors might travel home together or three jurors or any number of jurors might stop at a hotel on the way and have a drink together and discuss the case. I do not think that any proposition could be framed which would turn discussion about the case between less than the full number of jurors into a miscarriage of justice. But it is unnecessary to express any general principle in this case and I do not attempt to do so. I exclude also the effect of any admonition by the judge that the jury should discuss the case only when they are all together. No such direction was given here. The question is whether what occurred in this case establishes a miscarriage of justice which requires the intervention of this Court. I do not think that it does. 221 Locchi provides no support for the notion that the activities of the two jurors in the present case formed part of the deliberations of the jury within the letter or spirit of Lord Mansfield's exclusionary rule. The English Court of Appeal decision of R v Young [1995] QB 324 is authority to the contrary insofar as it points to the location of the putative deliberations of part of the jury. Evidence was received that four members of the jury used a ouija board in the course of an overnight stay in a hotel, seeking guidance from the deceased murder victim as to key issues. The occasion was held to fall on the "extrinsic" side of the line and the evidence was admissible (see also Minarowski and Koziol at 86, Mirza at 219 [45], 235 [106]). 222 In R v Miah (1997) 2 Cr App R 12 at 18, the English Court of Appeal said that the reasoning in Ellis v Deheer must extend to everything said by one juror to another about the case from the moment the jury is empanelled, at least provided what is said is not overheard by anyone who is not a juror. The Court cited R v Andrew Brown (1907) 7 SR(NSW) 290. In our view, this overstates the position. 223 The Crown and the Solicitor General submitted that the location of the relevant event should not be decisive, particularly in an era when jurors are no longer closely sequestered. 224 We agree that "deliberations" may take place outside the jury box or jury room and that they may occur when less than the whole number of jurors are present. For example, deliberations are not interrupted because a juror goes to the toilet. There will be matters of degree and the line may not always be easy to draw. But there is no authority that we know of that suggests every discussion that takes place between a juror and a third party or between a handful of jurors represents deliberations whose nature cannot be examined because evidence will not be received from a juror or third party about what took place. The policies informing the preclusive rule must always be kept in mind. 225 The Solicitor General referred the Court to R v Herring NSWCCA unrep, 24 November 1998 where this Court (McInerney, Studdert and Simpson JJ) said (BC 9806198 at 107-8) that: References in authorities to deliberations of the jury are not confined only to such matters as are stated orally in the presence and hearing of the whole of the jury, but include the manner in which individual jurors, as well as the jury as a whole, arrive at a verdict. That is what this proposed evidence is about. 226 Herring was a case where the evidence ruled inadmissible was a solicitor's affidavit about a conversation with the jury foreman in a hotel shortly after the verdict was announced. The foreman said that, prior to the accused making his unsworn statement, "he had most of the female jurors on side". This illustrates that evidence as to the thought processes of individual jurors can be evidence of deliberations, but (unlike the present case) the evidence addressed the content of the expressed views of the "female jurors" as they presented during deliberations in the jury room. The present situation is quite distinguishable. 227 Recently, in Re Portillo [1997] 2 VR 723 Callaway JA said (at 726): The common law rule as to non-disclosure by a former juror of what occurred in the course of the jury's deliberations serves a valuable public purpose that has often been explained …. The better view that it is not confined to the jury room but extends to anything that may truly be described as deliberations by the jury: cf Re Mathews and Ford (1973) VR 199 at 209. References to the jury box or jury room are to be explained on the basis that that is where most or all deliberations by the whole jury take place (cf Ellis v Deheer [1922] 2 KB 113 at 117-8, 119-20 and 121 and R v Young at 331-2). We agree. 228 This passage correctly emphasises that the issue must be considered substantively, not formally; and by reference to the policies that inform the rule of preclusion. In Young, the nub of the reasoning was that the evidence related to events that occurred at a time when the jury were sent to the hotel to give them a break from their deliberations (see at 331-2). Conversely, there will be situations where evidence of things that happen in the jury room is evidence of matters extrinsic to the jury's deliberations (see Emmet at 333-4). 229 The evidence of Juror 3074295 as to what he and his fellow juror saw and did at Gosling Park related to events occurring after the jury had been sent out to consider their verdict. But on no account could they be considered part of the deliberations of the jury or even of the two jurors who went to the park. The discussion between the trial judge and the foreman recounted above indicates that the present jury were released from their deliberations when they were sent home early, albeit to the slight bemusement of the judge. This is not to suggest that any information improperly garnered by the two jurors was incapable of impacting upon their deliberations and, if communicated to their fellow jurors, upon the deliberations of the jury as a whole. (No one submitted that the verdict could stand if even one juror was privy to inadmissible material giving rise to a miscarriage.) 230 The portions of pars 9 and 11 of the juror's statement to which particular objection is taken by the Crown and the Solicitor General do not, in our view, offend the preclusive rule, although par 11 comes close to the line. No part of the juror's statement revealed what he or any other juror had said to each other in their deliberations earlier that day. Nor did it reveal the basis upon which the juror arrived at his verdict the following day. At its highest, it reveals his private thinking at the time of the visit to the park. The last sentence does not, in our view, assert anything about the state of mind of the other jurors referable to their verdict or deliberation processes. We later explain that no regard has been taken of any possibly reflective light that par 11 offers as regards the individual juror's deliberative processes. 231 A passage in the judgment of Jordan CJ R v Woolcott Forbes (1944) SR(NSW) 333 at 343 suggests that the Court may have regard to evidence from the juror as to the impact or otherwise of an extraneous intrusion upon the juror's decision-making. After the jury had reached a verdict of guilty, one of their number revealed to the others and subsequently to the court that he had been approached during the trial and offered a bribe if he was prepared to use his influence to sway the jury. The juryman told the man who approached him that he was not interested, and would not allow the matter to influence his decision one way or the other. A new trial was refused for reasons that are presently irrelevant (at 342-3), save that Jordan CJ indicated that there was nothing to suggest that the juryman allowed the incident to influence him. He remarked that: On the contrary, his attitude was that he would not allow it to influence him one way or the other. 232 From time to time trial judges who become aware of irrelevant material coming to the attention of jurors may question the jurors to satisfy themselves that the information (such as a newspaper report) was not seen by the juror or, if it was seen, had no impact on the fairness of the trial. 233 We do not think that this line of cases has any bearing on the present issue. None of them involve enquiries touching the deliberative phase of the jury process. In our view, a statement by a juror as to the positive or negative impact of extraneous material upon his or her deliberative processes would be inadmissible in accordance with the rule of preclusion discussed above. To the possible extent that par 11 of the juror's statement addresses the influence of his observations at the park upon his decision the next day to participate in a guilty verdict, we have excluded such information from our own deliberations. The nature of the irregularity 234 The material provided to the parties and thereafter tendered as evidence in the appeals were the statements of the solicitor and the juror taken by the Sheriff's officer. In each case the juror's identification details were removed. They were however, disclosed to the Sheriff and the Court. There is no doubt that the juror in question was a member of the jury that tried the present appellants, as was his companion at Gosling Park. 235 The juror's statement reveals that the two jurors engaged in an inspection and experiment of the lighting at the park with a view to considering how clearly a person could be recognised at night from close quarters (up to about 2-3 metres). This was relevant to the issue whether Bilal Skaf was the first assailant, a critical element of all three counts. 236 In our view it is unproductive to debate whether what happened was an "experiment" as well as an "inspection", although we think that it was both (cf Evidence Act 1995, s53). It is the potential impact of what actually happened, not its label, that is vital to this issue in the appeal. 237 If there had been an experiment in the course of jury deliberations there would have been a direct contravention of s53(4) of the Evidence Act, which provides: The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. However, the very basis upon which the juror's statement is admitted as evidence in this appeal cuts across the argument that the inspection and experiment formed part of the deliberations of the jury. 238 What is the legal characterisation of the material disclosed? 239 We put aside the issue whether the conduct of the jurors amounted to a contempt of court. That matter lies outside the questions for determination in these appeals. We mention it only to indicate, for the information of jurors in other trials, the potential seriousness with which the law views this type of misconduct. 240 It seems to us that what has been revealed in the present case does not amount in itself to a departure from fundamental requirements as to the procedure of a criminal trial before judge and jury. The matter is not to be viewed as if it were evidence that there were a thirteenth unsworn juror in the jury room or that the verdict proceeded from deliberations involving less than 12 persons moving towards a unanimous decision. 241 Rather, the characterisation of the proven incident is that some (at least) of the jury had regard to information that was not evidence in the trial, or otherwise properly put before them by the judge to the knowledge of the parties. Such information as the jurors obtained was not evidence and it was obtained in circumstances amounting to a want of procedural fairness (denial of natural justice) in that the accused were unable to test the material, comment upon it or call evidence to rebut or qualify it. The Court needs to weigh the possible prejudicial impact of this extrinsic information upon the minds and deliberations of (at least) the two jurors directly involved. 242 In R v K, this Court discussed its role in addressing an irregularity of this nature. After a review of the cases (which it is unnecessary to repeat) the Court said that the question to be decided was whether there had been a miscarriage of justice. As regards the type of situation dealt with in that case and this, there must be a new trial unless this Court can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred (see also R v Marsland NSWCCA 17 July 1991, R v Rudkowsky NSWCCA 15 December 1992). 243 In R v Domican (No 3) (1990) 46 A Crim R 428 the jury had before them six photographs which were not exhibits. An application to discharge the jury, when this fact was discovered almost at the end of the trial, was refused. Kirby ACJ described the photographs as "apparently innocuous". They appear to have been similar to others which were tendered and admitted in into evidence. The appeal against conviction was dismissed. The facts are far removed from the present case, but the following passage in the judgment of Kirby ACJ (Studdert and Campbell JJ agreeing) is of relevance to the present appeal, particularly in its discussion of the unreported New Zealand case of Gillespie NZCA, 7 February 1989. Kirby ACJ said (at 448): There is no doubt that the presence in the jury room of material which was not in evidence was an irregularity. Its importance in the context of the trial was a matter for the assessment of Roden J. This Court would only disturb that assessment where it was convinced that the judge had made a mistake or otherwise that a miscarriage of justice had occurred: see Ball [1961] SR(NSW) 37 at 40-41. See also Owen (unreported, Court of Criminal Appeal, NSW, 7 July 1988); Smithson (unreported, Court of Criminal Appeal, NSW, Maxwell, Carruthers and Campbell JJ, 29 September 1989). Not every irregularity will result in the quashing of a conviction: see, for example, Twiss [1918] 2 KB 853; Riley [1982] 1 NZLR 1 at 10. A conviction may be quashed where a jury has been shown to have gone outside the evidence in a way that may reasonably be suspected to cast doubt on the integrity of the verdict: see, for example, Bates [1985] 1 NZLR 326 at 328 and Gillespie (unreported, Court of Appeal, NZ, 7 February 1989). In the last-mentioned case, after the verdict, counsel became aware that the foreman of the jury had visited the place of the alleged crime to test the explanation given by the accused. Another juror had also later visited the scene to make his own inspections. These were duly reported to the fellow jurors. Richardson J, delivering the judgment of the court said, referring to Bates , that "the occasion would be rare indeed when the court could say that notwithstanding a jury's extrajudicial inquiry in a vital issue, the jury undoubtedly would have reached the same conclusion without it" (at p4). It was held that the jury should have kept itself to the photographs tendered in evidence. The conviction was quashed. The appellant urged that the present case was analogous. By the photographs found in the jury room, the jury had the equivalent of a further view outside the evidence. The jury's assessment of the photographs and what it made of them cannot be judged because of the confidentiality of the jury's deliberations. To that extent, I consider that Roden J was right to reject the application made at the trial that he should interrogate the jury either as to how it obtained the photographs or what it had made of them: see Chaouk [1986] VR 707 at 713; (1986) A Crim R 463 at 468-469; compare Emmett and Masland (1988) 14 NSWLR 327; 33 A Crim R 340. But the case falls far short of the equivalence to a view. It is not suggested that the photographs, of themselves, had any particular prejudicial effect. In these circumstances, I do not consider that his Honour's discretion, refusing to discharge the jury, miscarried. Fortified by hindsight, I believe that it would have been preferable for his Honour to have withdrawn the photographs from the jury room and not to have returned them to the jury. I also believe that he should have given a specific instruction that the non-exhibit photographs were to be entirely ignored. But the fact that these steps were not taken does not, in the circumstances, involve such a risk of miscarriage of justice as to require that the jury's verdict be quashed. As the New Zealand courts have said in Bates and Gillespie the extracurial information must be on a "vital" or at least important issue before discharge is required. It is not every irregularity that requires that drastic course. It was not required in this case. 244 In Bates, the accused was charged with possession of heroin. The central issue at the trial was the identity of the substance which was the subject matter of certain transactions and conversations recorded by the police pursuant to interception warrants. The actual substance was not found. The Crown contended that the substance was heroin, Bates maintained that it was a prescription drug called Ephedrine. Some of the jurors visited chemist shops in order to find out about the availability and price of Ephedrine. The conviction was set aside because of the juror misconduct. The subject matter of the inquiries was a central issue in the case. 245 The judgment of the Court of Appeal was delivered by Eichelbaum J (as he then was). His Honour referred to a statement about the test for miscarriage of justice depending upon whether there were reasonable grounds for suspecting that the verdict may have been affected by an extraneous infuence. In this context, Eichelbaum J said (at 329): On the present facts the yardstick of reasonable suspicion is amply satisfied. The jurors concerned would not have made the inquiries they did had they not thought the matter important; and having obtained the information there is we think at least reasonable suspicion that they acted upon it, notwithstanding the usual direction that they were to reach there verdict only upon evidence given in Court. 246 This decision was followed in the later New Zealand decision of Gillespie. A bag containing cannabis was found by the police in a park in Wellington. Police officers remained concealed at the scene and the accused was apprehended when he went to the particular spot. The accused's defence was that he was taking a shortcut through the park and that he had merely gone to the place in order to relieve himself. There was evidence that the foreman of the juror visited the park in order to check out if the track was a likely shortcut and if anyone would be likely to have gone to the spot to relieve himself. The Court of Appeal was satisfied that the foreman's enquiries may have influenced the verdict. 247 The Crown submitted that Gillespie is distinguishable from the present case in that the conduct of the foreman in Gillespie went to the central issue in the case and he had discussed his findings with the jury. The second matter is not however a point of distinction, because it is correctly common ground in this appeal that a new trial should be ordered if the decision of any one juror may have been the product of a material irregularity within the principles discussed in R v Kay. The impact of the irregularity 248 The submissions of the two appellants were generally to similar effect as regards the impact of the unauthorised view. Each submission confined itself to the issue whether Bilal Skaf was properly identified by the complainant as the man who first sexually assaulted her. 249 It was common ground that the impact of the juror's visit to the park had to be weighed against the issues fought at trial and the evidence led in relation to them. 250 It is also common ground that the principal issue in the trial was whether the complainant had correctly identified Bilal Skaf as the man who first sexually assaulted her at Gosling Park and who was present assisting when the second (unidentified) man did so. 251 The adequacy of the lighting where the alleged assaults took place was clearly relevant. Evidence was called by the Crown and presented by way of cross-examination of Crown witnesses on behalf of the accused which touched on this issue. 252 Bilal Skaf emphasised the following matters in the written and oral submissions on his behalf. 253 Bilal Skaf was a stranger to the complainant. The relevant events occurred around 10pm on 12 August 2002, when it was dark. 254 In the nearer field where the assault occurred the floodlights were off. In the further field there was a soccer game going on with people watching. The complainant gave evidence about the lighting (Tr pp116-7), although she could not be sure what the lighting was like (Tr p58). It was however sufficient, she said, for her to see "quite perfectly well", including faces (Tr p116). There was also lighting near the cement cylinders, because she could see faces clearly at that point. 255 Detailed evidence was given at trial from Sean Mooney, a maintenance and construction coordinator for Bankstown City Council. He described the lighting at Gosling Park in so far as he knew of it. He said that the council floodlights were not turned on at the time (Tr p286). There were however lights, controlled by Energy Australia, operating from sundown to sunrise in the street adjoined to the park and in the car park itself. There were also lights near the storage tank (Tr pp 286-7, Ex C38). 256 Bilal Skaf's case at trial was that he had been wrongly identified by the complainant. The lighting issue was treated as relevant, both in that evidence was called about it and that the directions to the jury included (SU 36): You take into account the opportunity she had for observing him. How long were they together on that night in that park. What was the lighting like? Was she able, as she said, to clearly see him? 257 The Crown prosecutor had put submissions at trial about the lighting (Tr pp328-9). 258 Mohammed Skaf adopted Bilal Skaf's submissions in this Court, adding some of his own. 259 He pointed out, correctly, that his appeal on this ground must be allowed if his brother's succeeds, because he was charged with being an accessory to his brother's offence. 260 In his submission, the jury foreman's statement revealed that two members of the jury engaged in a view and conducted experiments. This was a material irregularity. The jury had been instructed by the trial judge at the beginning of the trial that you cannot "go and do your own research" (Tr p30). The two jurors' disobedience of this instruction meant that they obtained and took into account information that was not evidence. Because this was not conveyed to the judge and parties no one had the opportunity to deal with the material, or to make submissions in respect of it, and the trial judge could give no directions about its use. Kozul v The Queen (1981) 147 CLR 221 at 227 was cited. 261 Each appellant submitted that it was not possible to exclude the possibility that the lighting conditions, at the time of the jurors' view was significantly different from the conditions at the time of the assault. 262 The appellants submitted that the very fact that the jurors thought it appropriate to go to the park points to the materiality of the lighting issue in their consideration of the Crown case. Cf the remarks of Eichelbaum J in Bates, quoted above. The appellants also rely on the timing of the view and the promptness of the guilty verdict that followed the next morning. Whatever the cause of the "frustration" mentioned by the foreman to Finnane DCJ on the afternoon of 10 July 2002, a clear consensus as to guilt emerged early the next day. 263 It is convenient, at this stage, to dispose of one of the Crown submissions that we think is quite untenable. The Crown invited the Court to infer from the juror's statement (if admissible) about having a duty to the court to be right (par 11) that the juror had already decided that Bilal Skaf was guilty. He merely wanted to be doubly certain that there was nothing upon inspection that would dispel that belief. This submission ignores the capacity of discussion amongst jurors to influence individual and collective decision-making. It does not grapple with the fact that the visit to Gosling Park preceded the culmination of jury deliberations. 264 It was common ground that the materiality had to be considered in light of the evidence and issues in the trial. 265 As to the factual issues, the Crown pointed to the following circumstances (Crown submission par 20): a. The appellant was face to face with the complainant throughout her ordeal. When he first met the complainant he opened the car door in which she sat and spoke to her (T62.32), grabbed her underneath her hair and in this fashion pulled her up a hill (T63.17) to a position behind four cement cylinders (T64.35). He pulled her pants off (T68.26) and inserted his penis in her vagina for "minutes. Five minutes, ten minutes" (T69.20). b. The complainant said, in the area of where her car was parked, "I could see – I could see faces and everything. There must have been a light around. I couldn't tell you where it was" (T116.18). c. The field across which she was dragged from the car had no lights on (T72.6). Neighbouring this field was a soccer field where a game was in progress "that was lit up" (T72.8)… "the whole field had lights on" (T116.46). d. Asked about the lighting as she journeyed across the field she said: "It wasn't the best light across, but as I said in the carpark, there must have been a light there. I could say that there was a light because I wouldn't have been able to see him as I did and over near the cement cylinders there must have been a light there, so I saw their faces very clearly" (T116.35). e. Asked where there was a light in the area of the cement cylinders she said: "Not a light shining directly on it, but there was a light, the lights from the field, I suppose, or the street lights, I don't know what it was but the area was lit up a bit. It wasn't like the darkest" (T117.2). f. Sean Mooney, from Bankstown City Council, gave evidence there were street lights on the opposite side of the street to the carpark and also there were individual lights for the carpark as well (T286.54). On Exhibit C37 (an aerial photograph of the area) he marked with a red arrow the position of the street lights. He further gave evidence the concrete cylinders were storage tanks for irrigation, there was a pump house adjacent to those tanks and there was a light pole approximately 15 metres from that pump house (T287.12) and no indication it was not operational. Exhibit C38 is a plan indicating the position of lights by reference to the light numbers (eg 6450 etc) referred to in his evidence. He also said there was a "considerable amount of street lighting in that vicinity" of the park (T287.20). g. A video of a walk-around by the complainant at Gosling Park showing the areas where the assaults occurred was admitted as Exhibit C6. The video shows that the location of these offences was close to the street and houses. 266 The Crown submitted that there will inevitably be circumstances where jurors have an intimate knowledge of a location where the crime was committed. Alternatively, a juror may quite properly observe an alleged crime scene when involved in a normal journey (eg in the case of a crime said to have occurred on the Harbour Bridge). In our view, these examples offer little assistance in dealing with this particular appeal. Here, the information gleaned by the jurors' visit was undoubtedly extrinsic (see R v Pan at [62]). The Court cannot escape the duty of weighing the impact of the particular irregularity by hypothesising alternative events. The decision as to whether there was a miscarriage does not turn upon the jurors' good intentions or the possibly accidental circumstances of an irregularity. 267 The Crown submitted (citing R v K at [77]) that the simple fact that the jurors went to the park for a private view, whilst clearly wrongful, did not of itself amount to a material irregularity. We agree. The issue of materiality depends on what was actually seen and done at the park. 268 The Crown submitted that the conditions experienced by the two jurors when they visited the park on the evening of 10 July 2002 were for all relevant purposes the same as the evening of the alleged offence of 12 August 2000. The alleged offences occurred on a clear night between 9.59pm and 10.37pm. The two jurors visited Gosling Park on a clear night between about 8.15pm and 8.35pm. Without objection, the Crown tendered further evidence of Sean Mooney and information obtained from the Bureau of Meteorology which effectively established the latter propositions. 269 The appellants, however, drew attention to the possibility that lighting conditions were markedly different when the jurors visited, because, if Juror 3074295 was ten minutes out in his estimated time of visiting Gosling Park, he would have been there when the floodlighting was switched on at the relevant part of the park. The upshot is, we think, that the possibility of lighting conditions having been different is one that cannot be excluded. The problem of an uncontrolled view and the issues of procedural fairness that it may generate remain live. 270 The central part of the Crown submission against these new grounds of appeal related to the question of materiality of the lighting issue as regards the accuracy of the complainant's identification of Bilal Skaf. 271 There was strong evidence supporting the accuracy of the complainant's identification of this appellant. The Crown offers the following summary (Crown submissions par 32): (a) He referred to himself as "Sam's older brother" (T64.8); (b) He referred to himself as "Sam's older brother Sam ". He used the name "Sam" when spoken to by a police officer Davie in June 1998 when he said his name was "Sam El Chamy"; (c) Miss D (the complainant), whilst not 100% sure, nonetheless selected his photograph on 8 November 2000; (d) Miss D identified him at Burwood Local Court on 15 February 2001 when she saw him in person; (e) Miss D noticed her assailant and driver of the van having a scar on his left eyebrow. She mentioned this in her statement to police on 22 September 2000. When Bilal Skaf was arrested on 13 March 2001 Detective Walsh noticed the scar. (f) He told police when arrested on 13 March 2001 he did not know what they were talking about. In a later ERISP on 3 April 2001 he said he was at home at the time of the offences, that his cousin Ali and "this Andre guy" had been at his house and left telling him they were going to Gosling Park. Ali Skaf and Andre Saadi gave evidence neither had been at his house or told him they had been at Gosling Park. The appellant said Ali Skaf told him he was at the park and had sex with the girl. (g) Ali Skaf denied saying this to the appellant. Although there was evidence suggesting Ali Skaf may have been an unreliable witness (eg seen, despite his denials, driving a white van), Miss D did not recognise Ali Ska whose photograph was included in a photo board; (h) Bilal Skaf and Mohammed Skaf telephoned each other on their mobile telephones 8 times between 7.58pm and 10.28pm; (i) The last call Bilal Skaf made to his brother was 9.27pm. (On the Crown case this last call was the one which Mohammed Skaf received when alone in the car with Miss D at Gosling Park carpark.) Vodafone tower coverage indicates it is likely, but not a certainty, that he was at home. The next telephone call he made was to Ibrahim and 9.59pm. It is likely he was not at home but made from an area of Vodafone mobile phone tower coverage which included Gosling park. 272 The Crown further points out that counsel for the appellant did not address the lighting issue in his final address to the jury. Rather he concentrated on the issue of delay in the complainant's later identification of Bilal Skaf and whether the displacement effect had played a part. 273 In our view there must, regrettably, be a new trial because of this ground. 274 The Court cannot be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. The juror treated what was seen and done at the park as information that he took into account in arriving at or confirming his conclusion that guilt had been established beyond reasonable doubt. The case is analogous to Gillespie. 275 Attempts to reconstruct material events or to conduct experiments are fraught with danger, even if conducted under the control of the court. Conditions may be different in perceptible and imperceptible ways. This is especially the case where there may be movement and potentially variable lighting conditions or perspectives of view (cf R v Quinn [1962] 2 QB 245 at 257, R v Neilan [1992] 1 VR 57 at 74-5). These dangers increase exponentially when a view, coupled with an experiment, takes place in private and where its impact comes to be assessed years after the event. 276 The misconduct of the jurors caused the trial to miscarry. 277 The law of evidence may be amended from time to time. But its essential function is constant and vital. In a criminal trial, guilt must be established beyond reasonable doubt based upon admissible evidence. The rules of evidence are the sieve through which information must pass before the jury is required or entitled to consider it. Parties cannot rely upon information that is not proved according to these rules. This is no mere technicality. The rules embody significant policies designed to achieve fairness and efficiency. The need to satisfy those rules in a criminal trial ensures that those policies are met and that all parties know what is being taken into account and are able to address its significance. Should juries be given additional directions? 278 At the directions hearing on 25 March 2004 the Court drew the attention of the parties to the recent House of Lords decision in R v Mirza and the English Practice Direction "Crown Court: Guidance to Jurors" [2004] 1 WLR 665. In Mirza the House of Lords confirmed (by majority) that the law of England should continue to adhere to the rule that the jury's deliberations remain confidential. Nevertheless, there were suggestions for improvements to the practice of empanelling juries. Lord Hope suggested (at 241 [126]): The system would be strengthened if jurors were told before the trial begins that they are under a duty to inform the court at once of any irregularity which occurs while they are deliberating. See also Lord Hobhouse at 248-250 [148]. 279 In this State it is customary for juries to be directed to decide the case only by reference to the evidence and not to discuss the issues for determination with strangers. 280 The introductory direction which is contained in par [1-510] of the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales goes some of the way to meet the problem which emerged in this case, as well as that encountered in R v K and R v Mirza, so far as it directs jurors, in substance: (a) to place out of their minds any publicity concerning the case and any reference to the accused, of which they may have become aware outside the evidence led in the trial; (b) to decide the case solely by reference to the evidence presented in open court and to the directions of law given by the trial judge; (c) not to use any material or research tools, such as the Internet, to access legal databases, earlier decisions or any other material of any kind relating to any matter connected with the trial; (d) not to bring computers or mobile phones to the jury room; (e) not to discuss the case with anyone other than with fellow jurors, and to do that in the privacy of the jury room; (f) to avoid speaking to any person in the precincts of the Court, (which presumably is to be understood as containing an exception in relation to the Sheriff's Officers and fellow jurors); and (g) to direct any query about the evidence or procedure solely to the trial judge, via a note given to the Sheriff's Officer. 281 Naturally, these suggested directions need to be moulded to the circumstances of particular trials. And sometimes it will be preferable if the information and directions are not delivered in a single block. 282 In general terms, these directions are adequate so far as they go, although they might be improved by adding a short explanation in relation to two aspects; namely that: (a) an additional reason for not undertaking external research into the law, or into the factual background is that it may risk taking the juror to legal principles that do not apply in New South Wales, or to some commentary or statement of fact which was either inaccurate, or incomplete at the time that it was made; and that (b) an additional reason for not discussing the case with anyone other than fellow jurors is that, almost inevitably, such persons will wish to make some contribution or observation, which is of no value since they will not have heard or seen the evidence, or received the directions which are binding upon them, and they will not be subject to the oath or affirmation to which jurors are subject. 283 The purpose of the explanations is to counter any concern that any mention of the possibility of such inquiries might act as an encouragement to undertake them. 284 To these directions we consider that it would now be useful to add instructions to the jury that: (a) they should not, either individually or as a group, make any private visit to the scene of the alleged offence, or attempt any private experiment concerning any aspect of the case, for the reason that to do so would change their role from that of impartial jurors to investigators, and lead to them taking into account material that was not properly placed before them as evidence, of which those representing the Crown and the accused would be unaware and unable to test, and which might require expertise in order to ensure that the inspection or experiment was properly conducted; (b) the only circumstances in which views or experiments are permitted, and are available by way of evidence, are those which occur in the presence of all jurors, the legal representatives of the parties, and the judge, and in circumstances where safeguards are taken to replicate the conditions, which were in existence at the time of the relevant events, and/or where, if there are any relevant differences in the crime scene or in the circumstances of the experiment, they can be pointed out to the jury in the course of the evidence; (c) the restriction concerning jurors making their own inquiries about any aspect of the case, inspecting the site, or carrying out experiments, extends not only to individual jurors but also requires that they do not cause or request anyone else to do any of those things; (d) in the event of it becoming apparent to any juror, in the course of the trial, that a fellow juror has made some independent inquiry in relation to any aspect of the case, including making an inquiry about the accused or the background to the offence, or making a private inspection or conducting a private experiment; or has caused anyone else to do any of those things; or has discussed the case with anyone other than remaining members of the jury, then that should be brought immediately to the attention of the presiding judge; (e) in the event of it becoming apparent to any juror in the course of the trial, that any matter which is not in evidence has found its way into the jury room, then that should similarly be brought to the attention of the trial judge; (f) the reason why it is necessary for any such matter to be brought to the immediate attention of the judge, is that, unless it is known before the end of the trial, then it may not be possible to put matters right, with the consequence that an injustice may occur, or that it may become necessary for there to be a discharge of the jury, and a retrial directed. 285 Finally, in the event of an amendment being made to the Jury Act, to create a specific offence, which might be based upon that contained in s 69A of the Jury Act 1995 (Qld), but expanded so as to include private inquiries, views and experiments conducted by jurors, then a warning to that effect should be added to that which is contained in the Bench Book direction, concerning the prohibition on jurors discussing their deliberations with non-jurors during the trial. 286 The Practice Direction which followed the decision in R v Mirza is expressed in somewhat more general terms, so far as it warns jurors that it is their duty to bring to attention "any behaviour among the jurors or by others affecting the jurors, that causes concern". We believe that the generality of this direction could cause difficulties in that it may lead to matters being brought to attention, which would involve inappropriate criticism of fellow jurors, including aspects of disagreement or expressions of forceful views of the kind which are understandable elements in jury discussions. We would prefer that the direction be expressed in more specific terms, so as to avoid uncertainty and so as not to be the occasion for the disclosure of jury deliberations. Disposition 287 For these reasons we uphold each appeal against conviction. The conviction and sentence is set aside. We order a new trial. Sentence adjustment 288 Bilal and Mohammed Skaf were sentenced on 10 October 2002. 289 In Bilal Skaf's situation the sentences related to guilty verdicts following three trials, namely: 1. Offences at Northcote Park Greenacre on 10 August 2000. These convictions were the subject of an unsuccessful appeal by Bilal Skaf in R v Bilal Skaf, Mohamed Ghanem, Belal Hajeid [2004] NSWCCA 74. 2. Offences at Gosling Park Greenacre on 12 August 2000. These convictions are the subject of the present appeal. 3. Offences at Bankstown and Chullora on 30 August 2000. These convictions were the subject of an unsuccessful appeal by Bilal Skaf in R v Mahmoud Chami, Mohammed Skaf, Mohamed Ghanem and Bilal Skaf [2004] NSWCCA 36. 290 It is not necessary to set out all of the detail of the sentences imposed referable to the various counts for which there were pleas and/or verdicts of guilty at each trial. 291 As regards Bilal Skaf's first trial there were various sentences, several of them concurrent, the total effect of which was that Bilal Skaf was sentenced for a period of 30 years imprisonment commencing on 12 February 2001 and concluding on 11 February 2031 with a non-parole period of 20 years commencing on 12 February 2001 and concluding on 11 February 2021. One sentence (referable to count 14) commences on 12 February 2011 and concludes on 11 February 2031 with a non-parole period of ten years concluding on 11 February 2021. 292 As regards the two convictions ensuing from the second trial (being the ones presently under appeal), Finnane DCJ imposed concurrent sentences of 20 years imprisonment. Those sentences were partially concurrent with and partially cumulative on the sentence imposed for count 14 in the first trial, with the result that the sentences commence on 12 February 2021 and conclude on 11 February 2041. A non-parole period of nine years commences on 12 February 2021, ie immediately after the concluding date of the non-parole period referable to count 14 in the first trial, and concludes on 11 February 2030. 293 As regards the third trial, the sentences imposed on Bilal Skaf were as follows: Count 3 : Seven years imprisonment to be served concurrently with the sentences for counts 4, 5, 6, 16 and 17. It commences on 12 February 2030 and concludes on 11 February 2037. It is a fixed term sentence. Counts 4 and 5 : In each case a sentence of two years imprisonment was imposed. These sentences will be concurrent with sentences for counts 3, 6, 16 and 17 and with each other. Each sentence commences on 12 February 2030 and concludes on 11 February 2032. Each sentence is a fixed term sentence. Count 6 : There was a sentence of 20 years imprisonment which will commence on 12 February 2030 and conclude on 11 February 2050. A non-parole period of seven years and six months will commence on 12 February 2030 and conclude on 11 August 2037. Count 10 : There was a sentence of 20 years imprisonment to commence on 12 February 2036 and conclude on 11 February 2056. There will be a non-parole period of four years commencing on 12 February 2036 and concluding on 11 February 2040, upon which date the offender may, if otherwise eligible, be released. He is then to be on supervised parole with the Probation and Parole Service for such part of the remainder of his sentence as they deem appropriate. Counts 16 and 17 : In respect of each offence a sentence of seven years imprisonment was imposed. These sentences are concurrent with one another and with the sentences for counts 3, 4, 5 and 6. Each sentence commences on 12 February 2030 and concludes on 11 February 2037. Each sentence is a fixed term sentence. 294 The upshot was that the head sentence imposed on Bilal Skaf will conclude on 11 February 2056 and his non-parole period will conclude on 11 February 2040. 295 Mohammed Skaf was sentenced in relation to his involvement in two sets of offences namely: 1. Offence at Gosling Park on 12 August 2000. This is the subject of the present appeal. 2. Offences at Bankstown and Chullora on 30 August 2000. 296 In relation to his conviction for the offence at Gosling Park that occurred on 12 August 2000 he was sentenced to 15 years imprisonment. The sentence commenced on 3 January 2001 and will conclude on 2 January 2016. There was a non-parole period of 9 years commencing on 3 January 2001 and concluding on 2 January 2010. 297 In relation to the various offences at places in Bankstown and Chullora that occurred on 30 August 2000 Finnane DCJ sentenced Mohammed Skaf as follows: Count 1: 5 years imprisonment to be served concurrently with the sentence for Count 2. Both of these sentences are partly cumulative with the sentence for the offence at Gosling Park committed on 12 August 2000 and with the sentences for Counts 14 and 15. The sentence will commence on 2 January 2010 and conclude on 1 January 2015. There will be a non-parole period of 3 years commencing on 2 January 2010 and concluding on 1 January 2013. Count 2: 17 years imprisonment to be served concurrently with the sentence for Count 1. Both of these sentences are partly cumulative with the sentence for the offence at Gosling Park committed on 12 August 2000 and with the sentences for Counts 14 and 15. The sentence will commence on 2 January 2010 and will conclude on 1 January 2027. There will be a non-parole period of 11 years commencing on 2 January 2010 and concluding on 1 January 2021. Count 14: 5 years imprisonment to be served concurrently with the sentence for Count 15. Both sentences are to be partly cumulative on the sentences for Counts 1 and 2. The sentence will commence on 1 January 2018 and will conclude on 31 December 2022. There will be a non-parole period of 3 years. That period will commence on 1 January 2018 and will conclude on 31 December 2020. Count 15: 15 years imprisonment to be served concurrently with the sentence for Count 14. Both sentences are to be partly cumulative on the sentences for Counts 1 and 2. The sentence will commence on 1 January 2018 and will conclude on 31 December 2032. There will be a non-parole period of 3 years and 2 days. That period will commence on 1 January 2018 and will conclude on 2 January 2021, on which date the offender, if otherwise eligible, is to be released on parole. He is then to submit to the guidance of the Probation and Parole Service for however long that Service should require. 298 The consequence of the orders made in the current appeals is that, if matters were left as they presently stood: • Bilal Skaf could be at liberty between 12 February 2021 (when his non-parole period referable to the second trial convictions expires) and 12 February 2030 (when his sentences referable to the third trial convictions commences; • Mohammed Skaf would be at liberty until 2 January 2010 when the sentences referable to the Bankstown and Chullora offences that occurred on 30 August 2000 are to commence. 299 Section 59 of the Crimes (Sentencing Procedure) Act 1999 permits a court that quashes a sentence of imprisonment on a person to vary the date of commencement of any other sentence that has been imposed on that person by that or any other court. The court is permitted to vary a sentence under this section on its own initiative. 300 It is obviously appropriate to exercise this power so as to meet and close the gaps in sentences that arise in consequence of the orders made in the present appeals. If the new trials we have ordered ensue and result in convictions, the sentencing judge(s) will be free to impose appropriate sentences that are wholly or partly concurrent with and/or cumulative upon the adjusted sentences we are about to impose. 301 Pursuant to this power, we vary the sentences imposed upon Bilal Skaf as regards the third trial by accelerating each date by nine years, the period taken up by the sentences referable to the second trial that are set aside by the orders made in these appeals. The upshot is that the sentences imposed upon Bilal Skaf that are set out in par 293 above are varied to be as follows: Count 3 : Seven years imprisonment is to be served concurrently with the sentences for counts 4, 5, 6, 16 and 17. It commences on 12 February 2021 and concludes on 11 February 2028. It is a fixed term sentence. Counts 4 and 5 : In each case a sentence of two years imprisonment is imposed. These sentences will be concurrent with sentences for counts 3, 6, 16 and 17 and with each other. Each sentence commences on 12 February 2021 and concludes on 11 February 2023. Each sentence is a fixed term sentence. Count 6 : A sentence of 20 years imprisonment is imposed which will commence on 12 February 2021 and conclude on 11 February 2041. A non-parole period of seven years and six months will commence on 12 February 2021 and conclude on 11 August 2028. Count 10 : A sentence of 20 years imprisonment is imposed, to commence on 12 February 2027 and conclude on 11 February 2047. There will be a non-parole period of four years commencing on 12 February 2027 and concluding on 11 February 2031, upon which date the offender may, if otherwise eligible, be released. He is then to be on supervised parole with the Probation and Parole Service for such part of the remainder of his sentence as they deem appropriate. Counts 16 and 17 : In respect of each offence a sentence of seven years imprisonment is imposed. These sentences are concurrent with one another and with the sentences for counts 3, 4, 5 and 6. Each sentence commences on 12 February 2021 and concludes on 11 February 2028. Each sentence is a fixed term sentence. 302 Pursuant to this same power, the Court orders that the sentences to be served by Mohamed Skaf in relation to the Bankstown and Chullora offences are varied so that the first of such sentences commences on 3 January 2001. Otherwise no variation to the substance of the sentences imposed by Finnane DCJ is made by these orders. The varied sentences referable to Counts 1, 2, 14 and 15 imposed on Mohamed Skaf are: Count 1: 5 years imprisonment to be served concurrently with the sentence for Count 2. Both of these sentences are partly cumulative with the sentences for Counts 14 and 15. The sentence commenced on 3 January 2001 and will conclude on 2 January 2006. There will be a non-parole period of 3 years commencing on 3 January 2001 and concluding on 2 January 2004. Count 2: 17 years imprisonment to be served concurrently with the sentence for Count 1. Both of these sentences are partly cumulative with the sentences for Counts 14 and 15. The sentence commenced on 3 January 2001 and will conclude on 2 January 2018. There will be a non-parole period of 11 years commencing on 3 January 2001 and concluding on 2 January 2012. Count 14: 5 years imprisonment to be served concurrently with the sentence for Count 15. Both sentences are to be partly cumulative on the sentences for Counts 1 and 2. The sentence will commence on 1 January 2010 and will conclude on 31 December 2015. There will be a non-parole period of 3 years. That period will commence on 1 January 2010 and will conclude on 31 December 2012. Count 15: 15 years imprisonment to be served concurrently with the sentence for Count 14. Both sentences are to be partly cumulative on the sentences for Counts 1 and 2. The sentence will commence on 1 January 2010 and will conclude on 31 December 2025. There will be a non-parole period of 3 years and 2 days. That period will commence on 1 January 2010 and will conclude on 2 January 2013, on which date the offender, if otherwise eligible, is to be released on parole. He is then to submit to the guidance of the Probation and Parole Service for however long that Service should require. 303 These orders are made subject to liberty to apply. The parties have not been heard on the adjustments and the possibility of clerical mistakes is a live one in matters of this nature. 304 These orders simply ensure that the sentences imposed by Finnane DCJ in reference to the offences for which the present appellants stand convicted shall be served, and shall be treated as having been served, from the date on which they first went into custody. 305 The appellants' right to prosecute their pending application for leave to appeal in relation to these sentences is unaffected by these orders. ********** Last Modified: 04/24/2008 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. 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