New South Wales Court of Criminal Appeal CITATION : REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 revised - 29/04/2004 HEARING DATE(S) : 8, 9 and 10 October 2003 JUDGMENT DATE : 7 April 2004 JUDGMENT OF : Mason P at 1; Wood CJ at CL at 1; Sully J at 1 DECISION : Each appeal against conviction dismissed. CATCHWORDS : Criminal appeal - kidnapping and sexual assault in company - separate trial applications - evidence of prior convictions - whether good character had been raised - identification evidence - directions on identification - whether defence submissions unsupported by evidence impacted upon fair trial for co-accused - judicial response thereto - whether warning about unreliability of evidence of co-accused appropriate - directions in relation to failure to testify - whether comment" infringed Evidence Act, s20(2) - whether address of counsel for one defendant caused co-accused's trial to miscarry - whether verdicts unreasonable - evidence that medical examination of complaints was "consistent" with their history of assaults. (D) Criminal Appeal Act 1912, s6 LEGISLATION CITED : Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2) Justices Act 1902 ss75B, 100AB Adler [2002] NSWCCA 180 Alexander v The Queen (1981) 145 CLR 395 Azzopardi v The Queen (2001) 205 CLR 50 Chami (2002) 128 A Crim R 428 Chen (2002) 130 A Crim R 300 Clarke (1997) 97 A Crim R 414 Darby v The Queen (1982) 148 CLR 668 Dhanhoa v The Queen (2003) 77 ALJR 1433, [2003] HCA 40 Domican v. The Queen (1992) 173 CLR 555 Doney v The Queen (1990) 171 CLR 207 Dyers v The Queen (2002) 210 CLR 285 Eastman v The Queen (1997) 158 ALR 107 Festa v The Queen (2001) 208 CLR 593 Gabriel v The Queen (1997) 76 FCR 279 Jones v Dunkel (1959) 101 CLR 298 Osland v The Queen (1998) 197 CLR 316 Papakosmas v The Queen (1999) 196 CLR 297 Pitkin v The Queen (1995) 130 ALR 35 R v Al Khair (NSWCCA 20.6.94 CASES CITED : R v Bartle & Ors [2003] NSWCCA 329 R v Birks (1990) 19 NSWLR 677 R v Clarke (2001) 123 A Crim R 506 R v Cook NSWCCA unrep, 24.8.98 R v Dann [2000] NSWCCA 185 R v Diez-Orozco [2003] NSWSC 1050 R v Eldridge [2002] NSWCCA 205 R v Fernando [1999] NSWCCA 66 R v Fuller (1994) 34 NSWLR 233 R v ITA [2003] NSWCCA 174 R v JGW [1999] NSWCCA 116 R v Nathan Lee NSWCCA, unreported, 5 May 1997 R v Osman, NSWCCA, 10 March 1998 R v Park [2003] NSWCCA 203 R v RTB [2002] NSWCCA 104 R v Turner (2000) 76 SASR 163 RPS v The Queen (2000) 199 CLR 620 Verma (1987) 30 A Crim R 441 Webb v The Queen, Hay v The Queen (1994) 181 CLR 41 Weissensteiner v The Queen (1993) 178 CLR 217 Williams v The Queen (2000) 119 A Crim R 490 PARTIES : Regina Bilal SKAF, Mohamed GHANEM, Belal HAJEID FILE NUMBER(S) : CCA 60032/02; 60174/03; 60380/02 Crown: D Frearson/ D Arnott COUNSEL : Appellant: (B. Skaf) A Cook Appellant: (M Ghanem) T Game SC/ D Johnson Appellant: (B Hajeid) S Odgers SC/ H Dhangie Crown: S Kavanagh (Director of Public Prosecutions) SOLICITORS : Appellant: (B Skaf) Galloways Solicitors Appellant: (M Ghanem) Murphys Solicitors Appellant: (B Hajeid) Ryan & Bossher LOWER COURT District Court JURISDICTION : LOWER COURT DC01/11/0750 FILE NUMBER(S) : DC01/11/0612 DC01/11/0749 LOWER COURT Finnane DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60032/02 CCA 60174/03 CCA 60380/02 DC 01/11/0750 DC 01/11/0612 DC 01/11/0749 MASON P WOOD CJ at CL SULLY J Wednesday 7 April 2004 Regina v Bilal SKAF Regina v Mohamed GHANEM Regina v Belal HAJEID 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 all Counts. The charges relate to events that happened in Northcote Park at Greenacre in the evening of 10 August 2000. At that time Bilal Skaf was aged 18, Mohamed Ghanem was 17 and Belal Hajeid was 18. All three lived at Greenacre and were friends. A joint indictment charged 14 offences alleged to have been committed upon two Year 12 students, Ms F and Ms P, who had met a group of eight males (one of whom offered to give them marijuana and lift home) at Chatswood shopping centre. Ms F and Ms P went with four of the males in a white van. One of these males was Bilal Skaf. Four other males followed in a red car. They included Ghanem and Hajeid. They all ended up at Northcote Park, where Ms F and Ms P were forced to participate in numerous acts of oral intercourse. After this the males left and Ms F and Ms P notified the police. GROUNDS OF APPEAL BILAL SKAF was convicted of 14 counts involving both Ms F and Ms P. Paragraphs 4 – 41 of this judgment outline the events giving rise to each of the counts. Skaf argued five grounds of appeal. Each ground fails. Ground 1 – Skaf argued that (some of) his criminal history should not have been admitted at trial and should not have been used to establish his credibility (or lack thereof). Judge Finnane ruled that there were convictions that could enable the jury to conclude that Skaf was a person of bad character and was dishonest (para 208). The judge also was required to rule on whether the evidence of his prior convictions bore upon Skaf's credibility. He was satisfied that the probative value of the evidence outweighed the danger of unfair prejudice (see para 210). The Judge ultimately did rule that the evidence was prejudical but that the issue was unfair prejudice (see para 228). The Court finds no appellable error in Judge Finnane's rulings. The ground fails (para 230). Ground 1(a) – Skaf argued Judge Finnane was wrong to not direct the jury as to the proper use of evidence of Skaf's bad character. However, Skaf's counsel effectively agreed (see para 237) with a proposed direction that the criminal history could be referred to on the basis that it went to Skaf's credit. There was no request by Skaf's cousel for a redirection of the jury. The Court finds that no miscarriage occurred (see paras 238 – 239). The ground fails. Ground 2 – Skaf argued that Dr Humphrey's expert opinion evidence should not have been admitted as evidence consistent with the histories given by Ms F and Ms P, who were examined by him. He said no 'abnormal findings' were revealed on physical examination. The Court finds that the doctor gave evidence in relation to Ms P which offended the Evidence Act (see para 297) and had the effect of bolstering Ms P's credibility by implying that an expert opinion in some way supported her evidence. The Court finds the doctor's evidence was neutral. The Court finds that this evidence should not have been led. If there is a Crown practice of leading such evidence whether or not the defence indicates it takes no point about the matter, it should stop (see para 298). However, the Court finds that this ground still fails (see para 299). Ground 3 – Skaf argued that cross-examination of him by Counsel caused a miscarriage of justice. Ghanem's counsel put questions to Skaf (see para 240) that in the absence of the jury he made a cutting of the throat gesture to Chami (the driver of the red car). The Court finds the questions relevant. It was being suggested that Skaf would go to great lengths to protect his brother Mohammed and his brother's friend Tayyab Sheikh. [Ghanem's counsel suggested but did not establish that Chami had nominated Skaf's brother and his friend Tayyab Sheikh as "two of the 8" people at Northcote Park (see para 90)]. The Court finds that Skaf is correct to submit that the question asked by Ghanem's counsel was in effect an allegation of serious misconduct. But it was an allegation that had a bearing on Skaf's credibility, a matter of vital concern to Ghanem (see para 247). The ground fails. Ground 3 (a) – Skaf argued that Judge Finnane was wrong to refuse to discharge the jury based on Ghanem's Counsel's address. He argued that Ghanem's Counsel invited the jury to conclude that Skaf had made threatening gestures to Chami. The Court finds that Judge Finanne was correct in concluding that there was no irremediable prejudice to Skaf. Judge Finnane noted that Ghanem's Counsel's submissions involved a logical fallacy, and that he would tell the jury this "in fairly strong terms". The Court finds that the Judge's decision to refuse a discharge was open to him. The ground fails. MOHAMED GHANEM was convicted of 10 charges involving Ms F and Ms P. Paragraphs 4 – 41 of this judgment outline the events giving rise to each count. Ghanem argued six grounds of appeal. Each ground fails. Ground 1 – Ghanem argued that it was wrong of Judge Finnane to admit evidence of Ms F's photoboard identification of Ghanem. The Court finds that Judge Finnane did not make a mistake when he decided to admit the evidence of Ms F's identification. The ground fails (see paras 117 – 127). Ground 2 – Ghanem and Hajeid argued that Judge Finnane made errors in direction (para 128—158). They argued that the Judge did not inform the jury about the reasons for caution concerning identification evidence and linking that caution to specifics of the trial. The ground fails. Ground 3 – Ghanem and Hajeid argued that Judge Finnane gave inadequate directions in relation to Skaf's evidence and that the Judge failed to give a warning as to its unreliability (para 159). The Court finds that the jury were obviously aware that Skaf's credibility was under serious attack from all quarters, and with good justification in light of the content of his two police interviews (ERISPs). There were frequent reminders during the summing up. The clearest indication that the jury viewed him as a man of little credibility lies in the verdicts they brought against him (para 163). Ghanem and Hajeid feared that the jury drew some support from Ms F and Ms P's evidence against them from its partial corroboration by Skaf. Ghanem argued that Judge Finnane should have told the jury that Skaf fell within a particular category and that they should use caution in deciding to accept his evidence for that reason (para 165). The Court finds no miscarriage stemmed from this unrequested warning. The ground fails. Ground 4 – Ghanem argued that the verdicts on Counts 2 (detain for advantage), 11 (physical assault – aiding and abetting) and 12 (sexual intercourse without consent, in company) were unreasonable and could not be supported on the evidence at trial. This is a complicated area of the appeal. Ghanem's submissions are at paragraphs 254. The appeal involves submissions about the directed verdicts (paras 255 – 261) and the indictment (now amended)(see para 261). The amended indictment led to the jury being told that the man with the plaited hair who slapped Ms P "was not on trial here". Ultimately, the Court finds this ground fails. Ground 5 – Ghanem and Hajeid argued that they should have had a separate trial. The Court finds that their trial did not miscarry because Judge Finnane refused to order a joint trial for them separate from Skaf's trial or to discharge the jury (see paras 111 – 116). The Court finds that the interest of justice in avoiding the risk of inconsistent verdicts and in having regard to the trauma involving Ms F and Ms P participating in separate trials (if that trauma could be avoided consistent with ensuring that each acscused received a fair trial) called for a joint trial of the several counts in the indictment (para 112). The ground fails. Ground 6 – Ghanem argued that Judge Finanne gave incorrect directions about Ghanem and Hajeid's failure to give evidence. They also argued that Judge Finnane gave incorrect directions that Tayyab Sheikh was mistaken for Hajeid (see paras 177 – 198). This is a long and quite complicated part of the appeal which cannot be satisfactorily summarised. The Court finds that Judge Finnane gave 'exemplary' directions. (para 197). The ground fails. BELAL HAJEID was convicted of nine counts involving Ms F and Ms P. Paragraphs 4 – 41 outline the events giving rise to each count. Hajeid argued seven grounds of appeal. Each ground fails. Ground 1 – Refusal to separate trial of Ghanem and Hajeid (see Ground 5 of Ghanem above) Ground 3 – Errors in direction (para 128 – 158) (see Ground 2 of Ghanem above) Ground 4 – Directions re: Skaf (para 159 – 176) (see Ground 3 of Ghanem above) Ground 5 and 5A – (see Ground 6 of Ghanem above) Ground 8(b) and 8(c) – Hajeid argued that his verdicts were unreasonable. Hajeid accepts that there was evidence that he was present at the park. Evidence of three phone calls from Skaf to Hajeid support the case that Hajeid was in the red car (see para 275). However, Hajeid submits that it was unreasonable to conclude beyond reasonable doubt that he was an accessory to the offences against Ms F (Counts 1, 4 – 9). The Court finds that there is sufficient evidence to sustain the convictions on the way the case was fought at trial (see para 277). FORMAL ORDER OF THE COURT Each appeal against conviction is dismissed. **** IN THE COURT OF CRIMINAL APPEAL CCA 60032/02 CCA 60174/03 CCA 60380/02 DC 01/11/0750 DC 01/11/0612 DC 01/11/0749 MASON P WOOD CJ at CL SULLY J Wednesday 7 April 2004 Regina v Bilal SKAF Regina v Mohamed GHANEM Regina v Belal HAJEID Judgment 1 THE COURT: The appellants challenge convictions following a trial in the District Court before Judge Finnane QC and a jury. 2 The charges relate to events that happened in a park at Greenacre in the evening of 10 August 2000. At that time the appellant Bilal Skaf was aged 18, the appellant Mohamed Ghanem was aged 17 and the appellant Belal Hajeid was aged 18. All three accused lived at Greenacre and were friends of each other. A joint indictment (as amended) charged 14 offences alleged to have been committed upon two young women, Ms F and Ms P. 3 In brief, the complainants were Year 12 students who were at Chatswood shopping centre. There they met a group of eight males one of whom offered to give them marijuana and a lift home. The complainants went with four of the males in a white van. One of these males was Skaf. Four other males followed in a red car. They included Ghanem and Hajeid, according to the disputed identifications of the complainants. They all ended up at Northcote Park Greenacre, where the complainants were forced to participate in numerous acts of oral intercourse. After this the males left and the complainants notified the police. The Crown case in detail 4 The Crown case, based on the evidence of the complainants as accepted by the jury, was as follows. 5 The complainants were approached at Chatswood at around 9pm by a group of four young males. One, who called himself Adam, offered Ms P a cigarette and a lift home. They exchanged names and there was talk of "going for a bong". Adam showed the girls a small plastic bag of marijuana. Ms P decided to go with the men. Ms F did not want to go with them but decided to stay with her friend. 6 During the conversation another four males joined them. They all walked to the car park where the two girls got into a white van with four of the males. Before they left the car park a red four-door Pulsar hatchback pulled up behind the van. It had four occupants. The men from the two vehicles exchanged words in a foreign language. Before driving off, one man in the red car (Hajeid, on the Crown case) yelled out to Ms F to catch her attention. He said to her "you're sexy.. speak to you later". 7 It is not in issue that the man sitting beside Ms P in the back of the van was the appellant Skaf. He gave the name of Adam, which was established to be a first name that he used in certain circumstances. 8 It was the Crown case that both Ghanem and Hajeid were in the red car. 9 Several mobile phone calls were made during the trip from Chatswood to Greenacre. Some were between occupants of the two vehicles, others between an occupant and a third person elsewhere. Evidence about the parties to these calls and their locations was part of the Crown case led at trial in support of the narratives of the two complainants. It will be necessary to return to the detail. 10 Police had set up a checkpoint with speed camera for cars travelling west along Parramatta Road at Glebe. A red Toyota Corolla hatchback was stopped at 9.50pm. The car contained four men of "Mediterranean" appearance. The driver who produced his licence was Mahmoud Chami. The police descriptions of two other passengers were capable of fitting Ghanem and Hajeid although there were discrepancies that were drawn to the jury's attention. A fourth occupant was described as obese in build. 11 The white van stopped at McDonalds at Stanmore to wait for the car. At that stage, the two men in the front of the van got out. So too did Ms F and the man who had been seated behind her who had made several unwanted advances to her prior to that stage of the journey. 12 "Adam" and Ms P remained in the van. He asked her "give me a head job". She said "No". 13 The man who had been seated behind Ms F made a similar proposition, outside the van. She said she "wasn't interested". This couple was then joined by the other two males who had also got out of the van. The three men in the presence of each other repeatedly asked Ms F for a "head job". She told them that "she didn't want to and … wasn't interested". The girls got back into the van, which was driven to Northcote Park, Greenacre. 14 Counts 1 and 2 were kidnapping charges involving Ms F and Ms P respectively. We shall return to them. 15 "Adam" (Skaf) grabbed Ms F's hand and headed towards an area in the park described as the pergola. He walked in front of her, pulling her along. He asked her for a "head job". She said "No" and told him that "I don't want to go, I don't want to do anything". Skaf led Ms F to some metal seats. He again asked for a "head job". When she refused, he told her that it was in her best interests to do it before the other car came, because he would tell them to leave her alone and not bash her. They would listen to him because he was the oldest. 16 At that point the car pulled up behind the van. "Adam" told Ms F to give him "a head job" before they came over. He pulled out his penis and motioned her with his hand on her shoulder to sit on the seat, from which position she fellated him. Count 3 charged Skaf with having sexual intercourse with Ms F, without her consent, knowing she was not consenting and in circumstances of aggravation, namely being in company with the three other males who had been in the white van. 17 Ms F stopped fellating Skaf when the males from the car got close to them. She stood up and walked towards the road where the vehicles were parked. She saw "four males from a vehicle [come] running towards me … one of them tackled me to the ground" (Tr p325). Some of the men started to kick her while she was still on the ground. She was helped to her feet by one of them. One of them then picked her up over his shoulder. She was screaming. He threw her into a bush. She then got up, crying, and walked over and sat on one of the metal seats. 18 Count 4 charged Skaf, Ghanem and Hajeid with assault in connection with the tackling of Ms F. The case left to the jury was that one of Ghanem, Hajeid and the two other men from the red car had tackled Ms F and that Skaf and his two co-accused (if not the tackler) had aided and abetted them by being present at the park ready to assist. The Crown case invited the jury to infer that Ghanem and Hajeid came in the red car. 19 At this stage "Adam" (Skaf) said to the others "look what you've done guys, you've made her cry". There were five men there at that stage, including Skaf. Skaf then came over to her and motioned the others away. They moved away a short distance to near the bushes into which the complainant had been thrown. Skaf then said to her "I told you what would happen. I warned you what they would do. So do it now… do you want to get bashed or not". Skaf then pulled down his pants and moved her head towards his penis whereupon Ms F again fellated him. He ejaculated into her mouth and she spat the semen onto the ground. He then walked away and other males then came over to her. 20 Count 5 charged Skaf, Ghanem and Hajeid with having sexual intercourse with Ms F, without her consent, knowing she was not consenting and in circumstances of aggravation, namely being in company with the other five men at the park. This count was left to the jury on the basis that Skaf had sexual intercourse, with the other accused aiding and abetting him. 21 Several men surrounded Ms F, all telling her to give them "head jobs". She started to cry again, saying that she wanted to go home. One (described as the "fat male") pulled out a knife, which one of his companions told him to put away. Ms F said that the "fat male" was one of the men she had seen at Chatswood and as an occupant of the Pulsar. 22 After this, one of the men claimed that he should be next because "I'm the one with the WRX". The other three men then walked away. The "WRX man" then told her "to give him a head job or he would bash" her. 23 Ms F then ran behind some seats. The fat man came running over and told her to give him a "head job". The WRX man walked away. The fat man spoke to her and then another man came over. The fat man went away. This other man threatened her with a bashing if she did not give him oral sex. He put on a condom. During his sexual intercourse he shouted out to others "she's not doing it right. This chick's shit at head jobs". 24 The fat man then ran over demanding a "head job". He raised his fist at Ms F and said "do you want me to do it 'cause I'll do it". Ms F was scared at this threat to bash her and she submitted to his demand for oral sex. Having achieved ejaculation he walked away saying "thanks for nothing you cheap slut". 25 This was part of a body of evidence indicating that the group involved in the successive acts of sexual intercourse with Ms F and Ms P remained in close vicinity or in earshot of each other while each "took his turn". No complaint is raised about the direction to the jury that the several perpetrators involved with Ms F would be aided and abetted by others who stood in the vicinity, speaking to her and each other, intending (in the words of his Honour's written direction to the jury) "to give aid or encouragement to the person actually committing the offence". It was of course essential to the Crown case concerning the assaults inflicted on Ms F after she had been tackled by one of the occupants of the red car that it be demonstrated that the appellants Skaf, Ghanem and Hajeid were involved as perpetrators or aiders and abetters in relation to each of the relevant counts. 26 Counts 6, 7 and 8 each charged the three appellants in identical terms. The charges were that they had sexual intercourse with Ms F, without her consent, knowing she was not consenting and in circumstances of aggravation, namely being in company with each other and four other males. Those counts went to the jury on the basis that the actual perpetrators were severally the WRX man, a man with a condom and the fat man. The three appellants were said to have aided and abetted each assault by their presence and willingness to assist if called upon. 27 Immediately after the fat male walked away, uttering his disgusting remark, Ms F was approached by the man who, on the Crown case, was Ghanem. Ms F described him as "the male with the pony tail … that I saw at Chatswood" (Tr p352). She told him that she didn't want to do any more and he told her that she was not leaving "until he got one". He told her that he would also bash her if she did not submit. She did. Count 9 was in similar terms to the earlier counts. It was left to the jury on the basis that Ghanem was the perpetrator with Skaf and Hajeid aiding and abetting. 28 Following conversations and incidents that are not of present relevance Ms F saw men get into the van and drive off. Shortly before this she observed her friend Ms P chasing a man. Another man (who had just robbed Ms F of her watch and phone) pushed Ms P over, before he ran towards the van. 29 Counts 10 to 14 involved Ms P. 30 Count 10 charged Skaf with sexual intercourse without consent with Ms P, in company. The charge was left to the jury on the basis that "another male person" was the actual perpetrator (SU 26, 45) with Skaf being there as an aider and abetter. This offence occurred after the arrival of the white van but before the arrival of the red car. When everyone got out of the van, a man described as having worn a "Champion jumper" and identified as Mohamed Sanoussi put Ms P's neck in a headlock and took her behind a toilet block. The man demanded a "head job" to which Ms P said "No". He then pushed her on to her knees by pushing down on her shoulders with his hands where she was forced to give him oral sex. The two other occupants of the white van were the persons present with Skaf and Sanoussi when this offence took place. 31 Ms P then went to the front of the toilet block at the park. The red car had arrived and parked near the van. About six men then stood around her all saying "give me a head job". She asked where her friend was and a thin man spoke to her. She described him as being about 19 years old and referred to by the others as "Sammy". The Crown says this man was Hajeid. Ms P had first seen this man at Chatswood and she described him as having short dark curly hair with blond streaks. She identified Hajeid as "Sammy" when she saw photo arrays in late 2000. "Sammy" grabbed Ms P's arm and took her behind the toilet block. Count 11 charged Skaf, Ghanem and Hajeid with this (physical) assault of Ms P. The count was left to the jury on the basis that Hajeid was the assailant, with the other appellants aiding and abetting. 32 "Sammy" demanded a "head job" to which Ms P said "No". She started to walk away. The man with whom she had first performed oral sex then walked towards her and grabbed the neck of her jumper breaking her necklace. "Sammy" then pulled her around the back of the toilet block, pushed her on to the ground on her knees and forced her head onto his penis. This incident was the basis of Count 12 which charged Skaf, Ghanem and Hajeid ("Sammy") with the sexual intercourse of Ms P, without her consent, in company with the other males at the park. 33 The written directions handed to the jury at the commencement of the summing up indicated that, in count 12, the sexual intercourse alleged was that of Hajeid, but that the other two were said to be guilty on the basis of aiding and abetting. 34 During this time the driver of the red car was telling "Sammy" to hurry up. 35 Ms P then walked to the front of the toilet block. About this time, the red car drove off. A man she described as fatter than the others, with short dark spiky hair, tackled her to the ground. 36 "Adam" (Skaf) then grabbed her arm and pulled her behind the toilet block. He demanded a "head job". He was at that time joined by two other men – one of whom had light brown hair plaited at the back which came to just under his collar. The man with the plait said "if you don't do it worse things will happen to you" and slapped her across the face. 37 Count 13 charged Skaf with this assault on the basis that he was present, aiding and assisting the actual assailant. 38 Skaf then pushed her on to her knees and pushed her head towards his penis, forcing her to engage in oral sex. Count 14 charged Skaf with sexual assault on Ms P without consent, in company. This went to the jury on the basis that Skaf ("Adam") was the actual perpetrator. 39 Ghanem was originally charged as the assailant with the plait who slapped Ms P in the face. Hajeid and Skaf were also charged as aiding and abetting this assault (count 18 of the original indictment). Ghanem and Hajeid were also charged as aiders and abetters in Skaf's sexual assault on Ms P (count 19 of the original indictment). There was a directed verdict on those counts in favour of those two accused which occurred in circumstances recounted in detail below. A fresh indictment was presented, containing the fourteen counts summarised in this section of our reasons. 40 Counts 1 and 2 charged each appellant with detaining Ms F (count 1) and Ms P (count 2) with intent to hold them for advantage to themselves and four other males. These kidnapping charges went to the jury on the basis that the offending conduct occurred after they arrived at the park: it was not alleged that the complainants were detained against their will when they were in the van. 41 The appellants were found guilty on each charge. Events prior to trial 42 Skaf participated in two records of interview. Each was tendered against him at the trial. 43 The first interview occurred on 6 December 2000. For the most part, Skaf exercised his right of silence in relation to questions about his involvement in the sexual assaults upon the complainants. Having answered four questions "no comment" he was asked whether he wished to participate in an interview or not. He answered "No. I haven't done nothing, mate, I don't know what you're talking about". 44 On 13 March 2001 Skaf was informed that the police had DNA evidence which linked him to items found at the park. He spoke to his barrister, contacted the police, and came for a lengthy second interview on 3 April 2001. What follows is a summary, re-arranged chronologically: • Skaf said that Mahmoud Chami had a four-door red Corolla and that he had met him at his house. His cousin Ali Skaf was also there, having driven his white van. Eight men went to Chatswood where they met the two girls. • Skaf named the others, apart from himself and his cousin, as the two Sanoussis, Ali Harris, Hajeid, Ghanem and Chami. He said that all of them went to the park, although he emphasised that anything that may have involved the others occurred after he had gone home. • He said that "we" came across two girls at Chatswood. The girls asked whether they had pot. His cousin, Ali Skaf, offered them marijuana "but youse got to look after us" . The girls go , "Yeah, why not" . The girls were also offered a lift home. He also thought that Hajeid had shown the girls pot "so they can come along" (p73). • The girls, the two Sanoussis, Ali Skaf and Skaf got into the van. The red car was occupied by Chami as driver, Harris, Ghanem and Hajeid. • Chami was stopped by traffic police. The van pulled into the Stanmore McDonalds. Skaf spoke to someone in the car by mobile telephone, "maybe Ghanem" (p47). Later he said that he spoke to Hajeid (pp89-90). • The van got to Northcote Park, 15 to 20 minutes before the car. One of the girls asked for the marijuana. Ali said "You gotta fix us up first … do my cousin first." . Skaf asked "the skinny one" if she wanted to have sex (meaning thereby vaginal sex) and she told him that she did not. He then said "what about a head job?" She started laughing and said "Yeah, I don't care, something like that. She goes, As long as you have protection as well" (p61). They had oral sex with Skaf using a condom. He threw the condom and a tissue he had used to wipe his penis on the ground. While this was happening "the other guys" (from the van) were standing about 40 metres away. It was dark but Skaf thought that they would have known what he was doing. • The other girl was "with someone else, I can't remember who she was with" (p64). This was behind the toilets. • Skaf said that his cousin Ali Skaf also took the fat girl over behind the toilets. Skaf said at one stage that he walked straight home "after Ali done what he done with her" (p5). Ali Skaf told him she had given him a head job behind the toilets. This was "just before I went" (p70). Later he said that he learnt this from a telephone call from Ali the next day (p71). • Chami arrived either just before or shortly after Skaf had sex (p65). Skaf spoke to Chami who was angry about "the fines, what happened to him" (when the police had stopped his car). He (Chami) took off home by himself, leaving his passengers Harris, Ghanem and Hajeid at the park. After Chami had left, Skaf spoke "to the boys as well" (p67) before he, Skaf "took off home as well" (ibid). The boys he was talking to included Ali who had previously gone off [for sex] with "the big one, the fat one, I'm not sure, I'm not positive" (p69). • A short time later Skaf took off home as well, as did Hajeid shortly after (p87). Skaf said that Belal Hajeid lived across the road from the park and that Hajeid went home when he did. He added "I don't know, I don't know whether he done something with her or not" (p6). • Skaf denied that he had used the named Adam that night. He said that Mohamed Sanoussi had introduced himself with that name "when he was sleeping with her in the back of the van, laying with her" (p76). Skaf admitted that he occasionally used the fake named Adam, corresponding with the fake licence be used to have [in the name of Adam Newlan], but he denied going around telling people that his name was Adam. • He denied that he had done anything to the other girl. He said that he was "the first one with that skinny one" (referring to Ms F), but he did not touch the other one or have anything to do with her (p80). • Skaf described his relationship with the other seven men, indicating that he had been to school with Hajeid and that he had known Ghanem for a couple of years. • Skaf said he did not see Hajeid or "no one" doing anything with the girls (p87). • The next day he phoned Ali and was told that "we didn't take 'em home" . Ali also told him that Mohamed Sanoussi kicked a girl and took her phone and money (pp5-6). Course of the trial 45 Each accused was separately represented. 46 Before the jury were empanelled counsel for Ghanem and Hajeid applied to be tried together but separately from Skaf. The court was informed about Skaf's records of interview and DNA evidence linking him with the scene of the crimes. There was no similar evidence concerning the other two accused, who had been identified by the complainants in circumstances that his Honour was told would be the subject of later, separate argument. It had been indicated by that stage that the Crown did not propose to adduce evidence from Chami. The applicants for the separate trial argued that there would be prejudice stemming from the inadmissible evidence contained in Skaf's second record of interview. The Crown prosecutor pointed out that Skaf did not actually implicate his co-accused beyond leaving them at the scene. The prosecutor also observed that Skaf's evidence did not put his co-accused with the complainants and that they could not be convicted merely on the basis of being at the park. 47 Judge Finnane indicated that he did not propose to separate the trials. He foreshadowed that he would give his reasons later, adding: All that I will say at this point is, that either counsel, or any counsel, can, at any time during the trial, make any application that seems to him or her should be made in relation to evidence. If I consider that the evidence against one of the accused is so tenuous that a jury properly instructed could not convict, I might well direct an acquittal. I am not prepared at this point to order a separate trial. 48 One of the challenges raised by Ghanem and Hajeid about the refusal to order separate trials is complaint about the paucity of these reasons. Alternatively, it is submitted that the reasons betray error because they indicate that his Honour confused the issue of a separate trial with the issue of a directed verdict. Neither complaint does justice to what his Honour said, or its context. He clearly intended at that stage to give reasons later. As it turned out he did not do so, possibly due to oversight or because the matter was overtaken by a later application (see below). The judge was not reminded of the oversight during the trial. The remark concerning the possibility of a directed verdict was entirely proper and in no way undercut or contradicted the distinct issue as to separate trials. 49 The jury had been empanelled and was waiting for the trial to begin. It was entirely understandable that his Honour deferred giving reasons at that stage. In any event, he was entitled to reserve and to formulate his reasons at greater leisure if he chose to do so. 50 Another complaint is the suggestion that the decision was vitiated because of failure to weigh the strength of the separate Crown cases and the related issues of prejudice. This is also misdirected in our view. For one thing, the applicants had foreshadowed that they would be making separate challenges to the admissibility of the complainants' identification evidence. This in fact occurred two days later. The other issues relating to the refusal to separate the trials will be addressed later in these reasons. 51 Not long after the opening address by the prosecutor and immediately before Ms F entered the witness box, counsel for Ghanem and Hajeid renewed their applications for a separate trial (Tr p254). Counsel emphasised the relative strengths of the Crown case against Skaf as opposed to the case against their clients. The application was dismissed brusquely: ... For the reasons I have given before I don't propose to separate the trials. The Crown case against Hajeid and Ghanem is as to joint criminal enterprise. I do not know what the strength of the case is against them. If in the end there is insufficient there I will tell the jury that. But at this stage I would not separate the trials. 52 This brevity is understandable. Ms F was about to be called to the stand to commence testimony which had been delayed for several days while interlocutory applications were dealt with. Applications to exclude identification evidence from the two complainants had been heard and determined two hearing days earlier. Some had succeeded, some had not. His Honour was obviously seized of the challenges that would be made at the trial concerning Ms F's identification of Ghanem and Ms P's identification of Hajeid. In the circumstances, it cannot be said that he gave no consideration to these matters. (Once again, we defer until later the consideration of whether the trial miscarried due to the ultimate refusal to separate Skaf from his co-accused.) 53 The reference to "joint criminal enterprise" was a shorthand expression that had previously been used in argument (cf Tr p254) to refer to the way in which the Crown prosecutor had opened the case. That opening relied upon accessorial liability. If there ever was any suggestion that the Crown case would be based upon pre-concert it was never pressed. This was confirmed before the final addresses and the summing up proceeded accordingly. 54 It appears that his Honour had forgotten that reasons for refusing separate trials had not been given earlier. Perhaps he thought that indications given during argument were sufficient. Once again nothing turns on this, given that it was entirely appropriate in the circumstances that Ms F should commence her testimony without further delay. 55 Ms F recounted the events of the drive to the park in the white van and the events involving her at the park as we have summarised them above. This included the evidence of the assault by Skaf near the pergola, followed by the incident in which one of the four men who got out of the car tackled her to the ground. She recounted the particular assaults involving the "WRX man", the man who used a condom and the "fat male". After the fat male walked away another man approached her and forced her to have oral sex. She referred to him as: "the male with the ponytail… the male that I saw at Chatswood....[ He]had the same jacket on and he looked like the same person that I saw at Chatswood". (Tr p352) 56 Ms F went to the police station on 8 November 2000. She was shown two photoboards, each containing 15 photographs. She identified a photograph of Skaf. (Evidence of this and the other photoboard identification involving each complainant was also given by the police officers involved. The jury had videotapes of the entire identification processes.) 57 Ms F returned to the police station the following day and was shown three more photoboards. As regards two of them she made no identifications and positively excluded a number of persons depicted. On the third photoboard she identified a photograph of Ghanem, putting a circle around that photograph. She said that she recognised the person as the one with the ponytail. The photoboard containing the circled photograph of Ghanem was admitted over objection and it became exhibit C7 (Tr p377). 58 Ms P gave evidence of the drive to the park. "Adam" offered her marijuana for oral sex when they were at McDonalds and also at the park. Ms P heard Adam telephone "Bill" (Tr pp535, 643). 59 Ms P recounted the assaults at the park, first at the hands of the man in the white Champion jumper who dragged her in a headlock to the toilet area; then (after the arrival of the red car) by "Sammy". During the latter incident, the driver of the red car was telling Sammy to hurry up (Tr p562). The red car drove away shortly after (Tr pp563, 617). Ms P had no idea how many people departed in it (Tr p619). 60 Then "the guy Adam who was originally with [Ms F]" grabbed Ms P and forced her to have oral sex. During this incident Adam answered a mobile phone call. Ms P said that two other men had walked behind the toilet block by that time. One of them had light brown hair and it was plaited at the back (Tr p567). 61 Ms P gave evidence about identifying "Adam" (Skaf) and "Sammy" (Hajeid) from photoboards. 62 The cross-examination of each complainant on behalf of Ghanem and Hajeid concentrated upon issues relating to identification. For obvious reasons, no version of events occurring at the park was put to the complainants by counsel representing these two accused. 63 Counsel representing Skaf at trial put to each of Ms F and Ms P that she had engaged in consensual oral sex with Skaf at the park. 64 There was evidence that the complainants made very early complaint generally consistent with their trial testimony. 65 Evidence from various police officers provided details of the layout of the park and the location of objects found there. These included the discovery of a condom and a tissue near the pergola and a liquid substance near the toilet. DNA evidence linked these three objects to Skaf. It was established that Skaf was told in general terms about the DNA linkage on 13 March 2001 (Tr p940). He gave his longer, incriminating record of interview on 3 April 2001. 66 The police evidence established that neither Ghanem nor Hajeid made any admissions when they were spoken to by the police. They provided buccal samples for DNA testing and permitted themselves to be photographed. The photograph of Ghanem used in the photoboard shown to the complainants was taken on 21 October 2000. The police had come to Ghanem's house to execute a search warrant. At that time Ghanem had his hair in a ponytail, but he loosened it immediately before being photographed. 67 Items located during the execution of a search warrant at Skaf's house established that he used the name "Adam Newlan". These included a driver's licence with Skaf's photograph. 68 There was evidence based upon telecommunications data that showed the approximate location of persons who made and received mobile telephone calls that evening. This was linked to evidence about the ownership and/or possession of those telephones. This telephone evidence had a dual function. It corroborated the complainants as to calls made during the journey and at the park. And it linked Ghanem to Skaf and Hajeid, both by showing that Skaf conversed with each of them during the trip from Chatswood and by showing that this occurred in the Ashfield area. This was vital and compelling evidence that tended to place Ghanem and Hajeid in the red car that proceeded along Parramatta Road until stopped for speeding at Glebe and thence to the park. 69 Ms F said that "Adam" used his mobile phone during the drive from Chatswood to Greenacre. One call involved him speaking to someone in the red car and telling him that the van was pulling over at McDonald's, Stanmore (Tr pp298, 303-4). Ms P said that Adam phoned "Bill" while stopped at McDonalds, Stanmore. Skaf gave evidence that he spoke by phone to "one of my other friends in the red car" (Tr p1061). He named Hajeid and said that they spoke twice to inquire about the police having stopped the red car and to confirm that it would meet them at the park. 70 There was significant corroboration of this oral evidence from the telecommunications data. 71 Exhibit C22, admitted without objection, showed that the SIM card of Skaf's mobile phone listed the mobiles of "Bill Hadjid" and Ghanem in its directory listing. Ghanem's and Hajeid's mobile phone listings also included Skaf's number. Chami's phone records also included Skaf and Ghanem as contacts. 72 Detective Porta gave evidence about information obtained as to the parties to calls made and received during the evening in question and the telephone transmission towers that were engaged. Exhibit C23 as explained by this witness (Tr pp889ff , 939ff) shows that: - Ghanem phoned Skaf at 2109hrs (picked up at Chatswood Mall tower), 2134hrs (picked up at Millers Point tower) and 2213hrs (picked up at Annandale tower). [The police stopped Chami's car at Glebe at about 2150hrs: see below.] - Skaf phoned Hajeid on three occasions between 2151hrs and 2208hrs, all of which were picked up by the Annandale tower. 73 [In light of this evidence, the direction that the case against Ghanem and Hajeid depended solely on identification evidence (SU 13) was particularly favourable.] 74 Mobile phone records also corroborated aspects of Ms P's evidence, including her evidence that Skaf answered a call from home while engaged in sexual intercourse with her at the park. 75 Sergeant Adams was performing speed enforcement duties at Parramatta Road, Glebe on the evening of 10 August 2000. At about 2150hrs officers stopped a red Toyota Corolla hatchback that was speeding. The driver produced a photo licence indicating that his name was Mahmoud Chami. There were three male passengers of "Mediterranean" appearance. The vehicle was searched, with nothing of concern being found in it. All passengers were requested to alight the vehicle to allow this to happen. 76 Sergeant Adams gave descriptions of the three occupants. One (Ghanem, on the Crown case) was described as a male about 22-23 years of age, 175 to 180 centimetres tall, thin to medium build. He had light brown hair with a fringe pulled back and plaited into a ponytail that was about 15 to 20 centimetres long (Tr pp818,820). The second passenger (Hajeid, on the Crown case) was described as being about 19 to 22 years of age, about 165 to 170 centimetres tall, of thin to medium build and with dark brown hair tightly curled and streaked slightly. The third passenger was described as being about 20-22 years of age, 165 to 170 centimetres in height, of large to obese build and with short black hair. The driver was issued with a traffic infringement notice and a defect notice. 77 Formal admissions were made at trial by Ghanem and Hajeid that they had been school friends together and that they had thereafter remained friends who socialised with each other. It was also admitted that each was acquainted with Skaf. 78 Skaf gave evidence at the trial. He denied that he was guilty of any of the charges. He said that eight men went to Chatswood: Chami, Ghanem, Hajeid and himself in the red car driven by Chami; Ali Skaf, Mohamed Harris and the two Sanoussi brothers in the white van driven by Ali Skaf. The initial contact with the two girls at Chatswood was made by Ali Skaf and Belal Hajeid. Skaf then introduced himself to them, saying that his name was Adam (Tr p1049). Ms P asked for marijuana and Hajeid produced some from his pocket. Ali Skaf asked the girls to come for a drive and to smoke some marijuana. 79 Skaf said that the girls wanted to stay together. They got into the white van with Ali Skaf, the two Sanoussis and Skaf. The other four men got into Chami's red car. Hajeid had tried to persuade them to go in the red car. Skaf sat next to Ms P and they began hugging, kissing and touching each other. This started before they crossed the Harbour Bridge. The red car was pulled over by the police and the white van drove into McDonald's at Stanmore. Everyone got out except Skaf and Ms P. Skaf telephoned Hajeid in the red car to inquire about what had happened when the red car had been pulled over by the police. Later Hajeid reported to Skaf by telephone that they had left the police and were on their way. The white van drove off after it had been agreed that it would go to the park. At this stage Skaf sat next to Ms F and the two of them started to get intimate, kissing and touching. Ms P was in the back with Mohamed Sanoussi. 80 When the van got to the park at Greenacre Ms P asked Ali Skaf for the marijuana and was told "you have to fix us up first " (p1070). Ali said to Ms F "you go off with my cousin and fix him up" (Tr p1071). Skaf said he walked hand-in-hand with Ms F across the park to the seats at the pergola area. She asked "whether she, she had to do, to do the guys....Do I have to do all those guys too?" (referring to the occupants of the van) (Tr p1075). Skaf said "No, that's entirely up to you, whatever makes you feel comfortable". He asked whether she wanted to have sex in the sense of penile-vaginal intercourse. She declined, but agreed to have oral sex. She asked him if he had a condom. He produced one. She started playing with his penis and then put the condom on his penis and gave him oral sex. He ejaculated into the condom which he removed with a tissue and threw on the ground. He then walked back to the van. 81 Skaf denied in terms Ms F's version of the forced sexual intercourse that took place between them. He was asked by the trial judge why he walked away, leaving Ms F there. What was he thinking? He said (Tr p1083): I was thinking - she mentioned to me after that she'd have to do the other boys. I'm saying, telling her: 'It's whatever you want as long as you feel comfortable'. She stayed waiting for some other guy to come along and do something with him. 82 Skaf said that his friend Ghanem was approaching as he was walking back to van. "I looked back and pointed out where she was" (Tr p1084). He became aware that the red car had arrived when he was with Ms F at the pergola and she was performing oral sex on him. 83 After he got back to his friends standing near the parked car and van, he asked Ali about the other girl (Ms P) and was told that she was behind the toilet block. She had been walking across the park at the same time as Skaf had walked to the pergola with Ms F (Tr p1087). She was with Mohamed Sanoussi at the time (Tr p1091). When Mohamed came back he told Skaf "she gave me a head job" (Tr p 1092). At one stage, Skaf called out to Sanoussi to find out how long he was going to be. Skaf then asked Ms P, near the toilet block, whether she would give him "a head job". She agreed and asked him to put on a condom which he did. Skaf's mobile phone rang while sex was taking place. It was a call from his brother asking where he was and how long he was going to be before getting home. He told his brother he would be home soon. He told Ms P to "keep going" while he attended to the telephone call. After she finished performing oral sex he wiped his penis and ejaculated onto the ground. He then walked over to his friends. These included his cousin Ali, Ghanem and Hajeid. He said goodbye and walked home. He assumed that his cousin Ali would take the girls home. 84 Skaf denied that he had tackled Ms P or dragged her behind the toilet block. 85 Skaf's evidence in chief was in serious conflict with much of the account he had given in the second ERISP, most notably because he now admitted having oral sex with Ms P and because he admitted to remaining at the park while Ali Skaf and Mohammed Sanoussi had oral sex with Ms P. 86 Skaf was first cross examined by Ms McSpedden, counsel for Ghanem. The opening volleys of this cross-examination are particularly relevant to the Skaf's grounds of appeal concerning the admission of evidence of his prior convictions. They are also relevant to certain directions later given by his Honour which the appellants Ghanem and Hajeid submit compromised their right of silence. 87 We set out the bulk of Ms McSpedden's brief, vigorous cross-examination of Skaf (Tr p1108): McSPEDDEN: Q. Mr Skaf, you're prepared to tell lies when it suits you, aren't you? A. No. Q. You initially were interviewed by police on 6 December 2000, is that right? A. That's right. Q. That was the first ERISP in which you participated? A. That's right. Q. At that time you didn't say anything to police about having had sexual intercourse with the two girls on the night in question, is that right? A. That's right. Q. On that night you said you didn't know anything about the events at the park on that night? A. Let me rephrase that to you: When I made that interview, I had called my solicitor and he had told me not to say anything. Do not say anything to them. So, when I didn't know anything about what youse are talking about, I was saying I didn't know anything about it just to get out of the mess I was in. And all I was thinking, I was going through stress, depression, I was angry. I just didn't want to say nothing to this. Those are the words that came out of my mouth at that stage. Q. But you did say something to them, didn't you? A. Yes, I did. Q. When you were advised not to say anything, to partake in an interview, you didn't say: "No, I do not wish to be interviewed", did you? A. No, I didn't say that. … McSPEDDEN: Q. It was an interview in which you say, although you'd been advised not to say anything to the police, you lied and said you didn't know anything about the girls in the park on the night in question? A. Excuse me, don't call me a liar. I did not lie. They're the words that came out of my mouth and they're the words out --- Q. You're saying they're the truth? A. What? Q. You're saying they're the truth? A. The first statement I made? Q. Yes. A. They're the words. You can play the tape and listen to it. They're the words I used to get out of this. I've never been charged with anything. They're the first charges I've ever had. Other than a driving offence. HEALEY: Can I just ask this: If one has reference – I take my learned friend to that question. McSPEDDEN: Q. You were asked these questions, I suggest, and you gave these answers, page 49 as it is recorded in the transcript: "Q. Okay. You've been identified as being one of the people involved in the sexual assault upon [Ms F]…" And you say: "A. Who? Q. Ms [F] and Ms [P] at Northcote Park Greenacre on 10 August where both girls were sexually assaulted by a number of males. What can you tell me about that?" And you say: "No comment". Then, I suggest to you, you were asked: "Q. Do you know anything about that sexual assault? A. No comment. Q. Do you know where you were on 10 August 2000? A. No comment. Q. Okay. Is it the case that you don't wish to be interviewed in relation to this matter as well? A. No comment mate. Q. Well, do you wish to participate in an interview or not? A. No. I haven't done nothing mate. I don't know what you're talking about." A. Exactly. I raped no girls. … McSPEDDEN: Q. And that wasn't true, was it, you did know something about the two girls in Northcote Park on that evening, didn't you. A. I didn't know anything about those two girls. I don't recall what I remember on that day. Q. You were prepared to give an answer that was convenient when you said: "I don't know nothing about it mate"? A. Yeah, I don't know nothing about it. Q. However, your memory improved when you went on legal advice on 3 April 2001 for the second interview, and in that interview you indicated that you'd sexual intercourse with consent with one of the girls, is that correct? A. Yes, that's right. Q. And that was because you knew when you made that interview that there had been a match in relation to your DNA with the DNA found at the scene? A. I didn't know they had DNA on me till that day. Q. Before the interview? A. I was going there to make an interview. I did not know they had DNA on me. And I was seeking legal advice about that when I got there. They told me they got DNA on me. That's when I knew they had DNA on me, when I was going down to make the interview. Q. And you made the admission that you did in the interview, about how you had sexual intercourse with one of the girls because you knew then that the DNA had been found? A. I was going there to make a statement and to tell them what happened. Not because I knew there was DNA on me. HIS HONOUR: Q. But you knew that before you made the statement? A. I knew there was DNA. They had told me. McSPEDDEN: Q. On your version, Mr Ghanem was at the park that night and he wore his hair in a plait that night, is that right? A. Mm hmm. HIS HONOUR: Q. Don't say "Mm hmm". Does that mean yes? A. Yes. Yes. Yes. … McSPEDDEN: Q. And what do you mean by a plait, that hair style you are referring to? A. A plait is when you get three pieces and you plait it (witness indicated). Q. Not like he's wearing his hair in the dock now? A. No, not like that. Q. You've been sitting next to him every day of this trial? A. Yes, I have. Q. And you have observed his hair tied back and then bunched up in a bunch, doubled up under? A. Yes. Q. You see, you say that Ali Skaf was at the park that night, don't you? A. Yes, I do. Q. And he's your cousin? A. That's right. Q. Do you also have a brother named Mohammed? A. Yes, I do. Q. And does Mohammed have a best friend called Tayyab, T-A-Y-Y-A-B, Sheikh, S-H-E-I-K-H? A. Yes. Q. I think you indicated that Mr Chami was at the park that night, is that right? A. Yeah, that's right. Q. And it had been his red car that had gone to Chatswood? A. Yeah, that's right. Q. Now, I want to suggest to you very clearly that Mr Ghanem was not at Northcote Park on that night? A. That's not true. Q. You see, early in this trial on a day when some legal argument was taking place, when the jury was not present, Mr Chami came into the Court room and you saw him, didn't you. A. Yes, I did. Q. When you saw him, as he was in the Court, in the body of the Court, walking into the Court --- A. Yeah. Q. -- you looked across to him from where you sat in the dock and you drew your finger under your chin in a gesture like I'm making now (as indicated), as if to indicate a cutting of a throat, didn't you? A. No, I don't recall that. Q. Do you not recall or do you say you didn't do it? A. No, I didn't do that. Q You knew when you did that, you knew that Mr Chami had previously been interviewed by police in relation to this matter, didn't you? OBJECTION. HEALEY: He has not agreed that he did that and knew it at the time with the situation my friends' putting. McSPEDDEN: I will rephrase the question. HIS HONOUR: I think that's correct. McSPEDDEN: Q. When you saw Mr Chami in the Court on that day, you knew that on a previous occasion he had been interviewed by police in relation to this matter, didn't you? A. Yes, I did. Q. And you knew that he had told police that of the eight people, Tayyab Sheikh and Mohammed Skaf were two of the eight? A. No, that's not right. HIS HONOUR: Q. I'm sorry? A. That's not right. It's not true. They, they --- Q. You may be at cross purposes. She's not actually putting to you whether that's true or not. What she's putting to you is that Mr Chami had made a statement claiming that and you knew Mr Chami had made a statement claiming that. She's not saying it is true at this point. She may later. At this point she is asking did you know Mr Chami had made that claim? A. I didn't. I didn't know that Mahmoud Chami said that Tayyab and Mohammed was there. Q. Sorry? A. I didn't know that Chami had said that in that statement. McSPEDDEN: Q. I suggest to you that you did know that and you made that gesture at Mr Chami because of your feelings about him nominating your brother? A. That's not true. Q. You are prepared to nominate Mr Ghanem as being at the scene rather than somebody else you are protecting, isn't that the case? A. That's not true. Q. Haven't you said to Mr Ghanem during the conduct of this trial: "If I go down, I'll take you down with me"? A. No, that's not true. Q. Mr Ghanem on that night at Chatswood didn't have his hair in a plait? A. Yes, he did. Q. Mr Ghanem wears his hair bunched up as he's worn it everyday during the conduct of this trial and as you saw it in the interview? A. He wasn't afraid to release his hair and have it as he used to have it. Q. And you are prepared to wrongly name Mr Ghanem as being present at the part that night in order to --- A. He was at the park. Q. Implicate somebody else? A. He was there. Q. Thank you. A. Thank you. 88 Pausing here, it may be observed that counsel: (1) suggested that Skaf told a lie in his first ERISP when he said that he did not know anything about the events that took place in the park on the night in question; (2) suggested that the change of stance between the first and second ERISPs was prompted by Skaf's knowledge that the police had found DNA material linking him to the scene; and (3) established that Chami had been present in court in the absence of the jury earlier in the trial and that Skaf knew at the time that he had been interviewed by the police. 89 It was properly open to the jury to accept these three matters. Skaf did not agree with suggestions (1) and (2), but his denials were in the teeth of the evidence and can only have (properly) undermined his credibility before the jury. Proposition (3) was admitted by Skaf. 90 Ms McSpedden also suggested (but did not establish) that Chami had nominated Skaf's brother Mohammed and his friend Tayyab Sheikh as "two of the 8" people at the park. It was further put to Skaf that he had wrongly named Ghanem as being at the park in order to "implicate" (sic, obviously the cross-examiner meant to say "exculpate") somebody else. The cross-examiner's suggestion that Skaf had made the threatening gesture to Chami was also denied by Skaf. This cross-examination, the use made of it in final address by Ms McSpedden, and the trial judge's response are the contextual backdrop to various grounds of appeal that will later be addressed. 91 For the present, it is pertinent to observe that what was not put to Skaf in cross-examination by Ghanem's counsel included: (1) that Skaf's evidence about Ghanem being with the group at Chatswood and in the red car was untrue; (2) that Chami had, when allegedly including Mohammed Skaf and Tayyab Sheikh, excluded Ghanem from the group at the park or even from the passengers in his car when it left Chatswood; (3) that, to Skaf's knowledge, his brother Mohammed and/or his brother's friend Sheikh were at the park; (4) that Skaf's evidence as to his friendship with Ghanem was false; or (5) that Skaf would have some reason to implicate Ghanem even if he was concerned to exculpate his brother and his brother's friend. 92 [We have not overlooked that it was put to Skaf that he said to Ghanem during the trial "if I go down, I'll take you down with me". Skaf denied this. It should also be remembered that Skaf first named Ghanem as a passenger in the red car and at the park in his second ERISP.] 93 Skaf was next cross-examined by Ms Langley, who represented Hajeid. It was put to Skaf that he was prepared to tell lies if it suited him. [This line of questioning was well open in light of the changes between the first and second ERISPs and between the second ERISP and the trial testimony.] 94 It was suggested that Hajeid was not in the group that went in the cars from Skaf's home to Chatswood. It was suggested that the nickname of Tayyab Sheikh, his brother's friend, was "Sam" or "Sammy". Skaf denied these propositions. Skaf was challenged as to the evidence he gave about Hajeid having spoken to the girls at Chatswood. He adhered to his testimony. He denied that he had said a number of times during the trial that if he went down he would take Hajeid down with him. He repeated his evidence about his mobile phone calls with Hajeid during the journey from Chatswood. He said that he was sure that he spoke to Hajeid twice that night. Skaf said that Hajeid did not leave the park in the red car, he walked home, which was about half a minute's walk away. 95 In his cross-examination, the Crown prosecutor also put to Skaf that he had not told the truth at his first interview with the police. He got the witness to repeat his testimony about having had consensual oral sex with Ms F near the pergola and Ms P near the toilets. Skaf was then confronted with why he had not told the police about the second incident (with Ms P) at the longer interview on 3 April 2001. He said "I didn't want to open more doors. I was in enough trouble with one girl. I didn't want to get involved with the other one." (Tr p1141). It was then put to him that he was lying when he said that the sex with Ms P was consensual. He agreed that he had lied about Ms P when speaking to the police, but adhered to his evidence that he had consensual sex with her. 96 The further hearing of the trial was interrupted for a period. Upon resumption, there was debate in the absence of the jury about the prosecution being able to cross-examine Skaf concerning his criminal history. It will be necessary to return to this issue in relation to one of the grounds of appeal raised by Skaf. Judge Finnane ruled that Skaf could be cross-examined about two of the five matters, confined to those that bore upon his honesty and credibility. 97 After the cross-examination resumed Skaf volunteered that he had used the named Adam when he first met the girls at Chatswood. 98 There was further cross-examination directed at Skaf's willingness to tell lies. He was then taken to the evidence given under cross-examination by Ms McSpedden, who had put to him that he had told lies at the first police interview. His attention was drawn particularly to the answer which included the words "I've never been charged with anything. They're the first charges I've ever had. Other than a driving offence." The cross-examination that followed is relevant to Skaf's ground of appeal concerning the wrongful admission of evidence of his earlier convictions. In essence, he was confronted with material about recent convictions and he denied any memory of them. The Crown was permitted to prove the convictions in reply. The use made of this material is a ground of appeal by Skaf. 99 Skaf denied having made threats to his two co-accused and he generally denied having had sex with either complainant against her will. 100 In re-examination Skaf reconfirmed that Ghanem had a "plait in a ponytail" (Tr p 1195) on the night of the incident. He also denied that his brother Mohammed Skaf or his brother's friend Tayyab Sheikh were at the park. He identified their photographs on the photoboards that had been shown to the complainants but not identified by the complainants as persons whom they remembered having been involved in the assaults. 101 Skaf was the only person who gave evidence in his case. No evidence was called in the cases of his co-accused. 102 Counsel for Hajeid and Ghanem devoted much of their closing addresses to emphasising the difficulties of the Crown case against their respective clients, dependent as it was upon the photoboard identifications of the complainants. There were, however aspects of the two addresses that have particular relevance to issues in the appeal. 103 In her address, counsel for Hajeid, Ms Langley took the jury to the photoboard in which Ms P had identified Hajeid. Counsel reminded the jury that she had put to Skaf in cross-examination that Tayyab Sheikh was also known as Sam or Sammy. Counsel invited the jury to compare the photographs of Hajeid and of Sheikh, observing that Sheikh had short, dark, curly hair with blond streaks (which had been Ms P's description of the person she described as Sammy). 104 Counsel for Ghanem, Ms McSpedden, reminded the jury that the Crown had opened the trial on the basis that Ghanem was the man who slapped Ms P behind the toilet block; and that he had been present, aiding and assisting at the time when Skaf sexually assaulted her in the same area. The original indictment had charged Ghanem accordingly in its 18th and 19th counts. There had been a directed verdict in favour of those two accused (see Tr p 1022-1023) in circumstances to which we shall return in addressing Ghanem's challenge to the verdicts as unreasonable. A fresh indictment had then been presented, containing the fourteen counts summarised earlier in these reasons. Counsel for Ghanem invoked these matters in support of the wider challenge to Ms P's identification of her client. We imply no criticism in this observation. The same argument forms one strand of submissions in this Court by Ghanem's senior counsel. 105 Counsel suggested to the jury that Ms P had been mistaken in her identification of Ghanem. She also raised the possibility that Ghanem might have been in the group of people at Chatswood, but that he was not the man at the park with the plaited hair. 106 Ms McSpedden then attacked Skaf's evidence which had stated that Ghanem was at the park. Unlike her predecessor, counsel for Hajeid, Ms McSpedden did not concentrate upon Skaf's lies in the contradictory accounts he gave to the police and at the trial. Ms McSpedden made a more direct attack on Skaf. It is necessary to set it out, because of its bearing upon several of the grounds of appeal. Ms McSpedden said (Tr p1270-1): No other evidence in respect of Mr Ghanem, apart from what Mr Skaf says, and you will recall the cross-examination. I put to Mr Skaf in particular the gestures of threat he had made to a man called Chami, when Chami walked into a courtroom on an occasion when you members of the jury were not in court. I suggested to him the reason for that attitude being that he knew that Mr Chami had implicated his brother, Mohamed Skaf, and his cousin, Tayyab Sheikh, to the police in relation to this matter, and suggested that he was scripting in Mr Ghanem in order to protect another person. I also put to him he had threatened Mr Ghanem that he would drag him down. I suggest you wouldn't believe anything that Mr Skaf says about his version of what occurred at the park. 107 This submission should not have been made. There was no evidence that Skaf had made the threatening gesture to Chami. Ms McSpedden had put to Skaf that this had occurred, but he had denied it and there was no other evidence on the matter. The impropriety was compounded when counsel put to the jury the equally unsubstantiated submission that "the reason for that attitude" (ie the threatening gesture and what it indicated) was that Skaf "knew" that Chami had implicated Skaf's brother and his cousin Mr Sheikh. There was no evidence of this either. The improper submission was further compounded by reminding the jury that counsel had also put to Skaf that he had threatened Ghanem that he would drag him down. The question had been put, but the suggestion had been denied. 108 It was not open to counsel to make this attack in this form. 109 Immediately after these addresses, counsel for Skaf sought the discharge of the jury in respect of his client on the basis that blame was being attributed to him on the basis of no evidence. Mr Healey, representing Skaf, objected to counsel's reliance upon unanswered questions put to his client. His Honour declined to discharge the jury, but indicated that he would tell the jury "in fairly strong terms" that the questions were evidence of nothing (see Tr p1274 and judgment of 18 December 2001 at p2). 110 There was also discussion with counsel about the appropriate response to Ms McSpedden's submissions, on the basis that they were not supported by any evidence, something that was not in dispute (see Tr pp1273ff). His Honour understandably decided that some directions had to be given to the jury while Ms McSpedden's submissions were fresh in their mind and before counsel for Skaf was called on to make his final address. This is the context in which the first directions were given about which the appellants Ghanem and Hajeid complain in their grounds of appeal concerning their right of silence and the Crown's onus of proof (discussed below). Refusal to separate trials of Ghanem and Hajeid (Hajeid Ground 1; Ghanem Ground 5) 111 The trials of Ghanem and Hajeid did not miscarry in consequence of Judge Finnane's refusals either to order a joint trial for them separate from Skaf's trial or to discharge the jury. The relevant principles are well-known (see R v Fernando [1999] NSWCCA 66. See also Darby v The Queen (1982) 148 CLR 668, Chami (2002) 128 A Crim R 428, which are the authorities relied upon by the appellants). 112 The interests of justice in avoiding the risk of inconsistent verdicts and in having regard to the trauma involved in the complainants participating in separate trials (if that trauma could be avoided consistent with ensuring that each accused received a fair trial) called for a joint trial of the several counts in the indictment. The offences charged were (with minimal exceptions) conduct in which the three appellants were involved either as perpetrators or aiders and abettors of each other and/or third persons. The key witnesses were the complainants who gave narratives linking the three accused in a composite set of events occurring at the same time and the same place. It was in the interests of the several accused and of justice generally that the testing by cross-examination of the complainants on several different issues could be taken into account in the overall assessment of their credibility. 113 The jury were directed that Skaf's out of court admissions could not be used against his co-offenders (SU 15). They were also told that each charge was to be dealt with separately and that a verdict of guilty against one accused did not necessarily mean all were guilty (SU 4, 41). 114 The principal matter raised by Ghanem and Hajeid concerns the imbalance between the Crown case against Skaf and the case against his two co-accused. Ghanem and Hajeid point to the contestable identification evidence against them as compared with the overwhelming and undisputed evidence that Skaf was at the park for at least some of the time. 115 It is not suggested, nor could it be, that merely because Skaf's second record of interview stated that Ghanem and Hajeid were at the park meant that the jury were incapable of complying with the trial judge's repeated directions that they should not use this evidence otherwise than in their assessment of the case against Skaf. This ERISP material remains relevant to the issue of separate trials, but its significance should not be exaggerated. For one thing, Skaf's admissions did no more than place Ghanem and Hajeid in the red car and at the park. The jury would have to accept the testimony of the complainants, including their identification evidence, before they could convict Ghanem or Hajeid of the charges laid against them. Directions to that effect were given (SU 14). There was also the compelling circumstantial evidence of the phone calls between Ghanem and Skaf and between Hajeid and Skaf at locations and times that was used to show that Ghanem and Hajeid were in the red car between Chatswood and Annandale. 116 The task of an appellate court is to consider whether the trial miscarried in light of everything that transpired (Verma (1987) 30 A Crim R 441). In this regard, it is relevant that Skaf entered the witness box and gave evidence that was consistent with his record of interview (at least as regards the limited role he attributed to Ghanem and Hajeid). Counsel for those two co-accused took up the opportunity to cross examine him, indeed with such vigour as to be the basis of some of Skaf's own grounds of appeal. Senior counsel for Ghanem and Hajeid in this Court urge us to recognise that this merely demonstrates the inherent problem of this particular joint trial. Conscious of the need to avoid circularity of reasoning in this regard, we are nevertheless unpersuaded of any error or ensuing miscarriage as regards the joint trials. Wrongful admission of Ms F's photoboard identification of Ghanem (Ghanem Ground 1) 117 An application was made before the trial commenced for Ms F to be cross-examined on the voir dire concerning her identification of Ghanem. Its refusal is not a matter of appeal. In her later evidence before the jury, Ms F described the part played by the man whom the Crown alleged was Ghanem (see the above summary relating to the various counts involving Ghanem). Ghanem was one of the eight males who spoke to the two girls at Chatswood and who got into the "small red car [that] drove up behind the van" (Tr p265). Ms F said that the one of the males in the red car had a ponytail and she estimated his age to be about 21. The hair was shaved underneath, like an undercut. She estimated the ponytail to be about 20 to 25 centimetres long. As indicated previously, evidence as to Ms F's identification of Ghanem (from herself, the police and as shown in a video) was admitted over objection. 118 The objection had been based on the inherent unfairness of the identification process because of the lapse of time and the nature of the photos contained on the particular photoboard. However, the weight of the objection needs to be considered in the context of the total evidence of the identification processes involving Ms F. This includes the identification process that occurred the previous day in which she had identified Skaf from a different photoboard and the evidence about the occasions when no photoboard identification occurred. The issue should also be considered on the basis that the jury were to have placed before them videotapes and transcripts of the entire identification processes (save for portions edited out due to rulings favourable to the accused). 119 Ghanem submits that the photoboard and the video of Ms F identifying his photograph ought to have been excluded under ss137, 138 or 135 of the Evidence Act 1995. The complainant had described the person she saw at Chatswood and at the park as having a ponytail with hair tied back, not plaited, and 20 to 25 centimetres in length. Only eight of the 15 photographs shown on the particular photoboard with Ghanem's picture showed persons who had hair that was shoulder length or longer. No photograph depicted any person wearing his hair in a ponytail or a plaited ponytail (not even Ghanem's, it should be added). The photograph of the appellant was said to be distinctive when compared to the other photographs because of the greater length of hair visible compared with that shown in the other photographs. 120 It is submitted that the complainant later confirmed in cross-examination that it was the difference in the hair of the photograph of Ghanem, compared to the other photographs on the board, that caused the photograph to stand out. This submission is not in fact supported by the passage cited (Tr p460) or by Tr p467 which is probably intended to have been cited. 121 A second basis of objection was that Ghanem's photograph was in the same position on the board and had the same number (14) as the photograph of Skaf that the complainant had identified on the previous day from a different photoboard. This is unfortunate, but it was not suggested at trial or on appeal that there had been any misconduct on the part of the police. Nor was it put to the complainant that this factor had influenced her in making the identification. We therefore put this matter aside. 122 Thirdly, Ghanem points to differences between Ms F's description of the man with the ponytail and Sergeant Adams' recollection of the man with a ponytail in the red car he stopped for speeding at Glebe. We do not consider these differences to be significant and certainly not destructive of the admissibility of Ms F's evidence. 123 In our view, the trial judge has not been shown to have erred in his decision to admit the evidence of Ghanem's identification. There is nothing particularly distinctive about Ghanem's appearance on the photoboard apart from the fact that his long hair is showing. (He had opted to be photographed in this way.) The videotape of the identification enabled the jury to assess the whole process on that day and the day before it. There were, as His Honour observed, a number of other men depicted on the photoboard whose hair was long enough to have been put in a ponytail. 124 In R v Nathan Lee (NSWCCA, unreported, 5 May 1997) Cole JA (with whom Dowd and Sperling JJ agreed on this matter) said: It is not a satisfactory basis of challenge to identification evidence to seek to render it tenuous by seeking to exclude from the array of photographs produced all those with a feature or features different to the precise description previously given to police. Whilst the photographs must bear a relationship to the description given, it is always a matter of judgment whether they constitute an appropriate and sufficient panel from which any selection may be made. We agree. 125 The circumstances of Ms F's identification and the possibilities of mistake on her part were matters to be explored in cross-examination calling forth a need for proper directions. But the decision to admit the evidence of the positive identification of the appellant did not miscarry. This ground of appeal must be rejected. 126 So too must the submission that the trial miscarried because the identification evidence was not excluded in light of the cross-examination of Ms F. It should be added that no such request was made at trial. 127 It was common ground that s115 of the Evidence Act did not preclude the admission of the evidence. No question of an identification parade arose in this trial. Errors in directions on identification evidence (Ghanem Ground 2; Hajeid Ground 3) 128 Section 116 of the Evidence Act requires the trial judge to inform the jury that there is a special need for caution before accepting identification evidence; and of the reasons for that need for caution, both generally and in the circumstances of the case. 129 At the time when Ms F gave her evidence of Ghanem's photoboard identification the jury were told (Tr p379): ... you've always got to be careful in evaluating identification evidence. In evaluating evidence of identification you will have to have regard to such things as the opportunity the person had of observing the person who is identified and that takes into account things like lighting, the length of time the person identified was in the company of the person who was doing the identification, opportunity to observe, accuracy of observation, the circumstances in which any identification is made, did the person who identified have the capacity at the time to form a clear judgment, did that person have an opportunity to have a clear view, the reliability of the witness doing the identifying. All those are matters. They are not the only matters that you look at, but you certainly look at those matters. There are many cases where people have been wrongly identified, sometimes as a matter of enormous certainty by someone who has claimed to have had a great deal of opportunity to observe and it's been shown that that person is wrong. I'm passing no judgment in saying this. I'm merely saying you have to exercise great caution. You have to look at it carefully and you have to evaluate those matters and you have to be aware that the experience of the Courts over centuries is that people often mistakenly identify the wrong person. 130 In the Summing Up, the judge gave the following warning (SU 10-12): Just before we adjourn, the Crown case has been disputed by Messrs Ghanem and Hajeid particularly in relation to identification. I will come back to the cases against them in detail, but largely, in a broad sort of a way, you might think they do not dispute that each of the complainants was the subject of sexual intercourse without consent in the park, nor do they dispute any of the other charges. In a general sense they don't dispute these things happened but they do dispute that they were there, that they had anything to do with it. So each of Messrs Ghanem and Hajeid have, through their counsel, put to you that they were not there. Now if they were not there they could not possibly be guilty of anything. Let me make that a clear proposition. Unless they were there they could not be guilty. Firstly, it is said against each of them that each of them committed direct offences against [Ms P and [Ms F], and I will get to the detail of that later, and it is said that they are guilty because, being there with others who were committing offences, they were present aiding and abetting and encouraging these others to commit offences. If they were not at the park on the night they could not commit the offence, any offences. If you have a reasonable doubt as to whether they were there, you are not convinced beyond a reasonable doubt that they were there or you are so uncertain you are not really sure, then they must be acquitted of all charges, because only if they were there could they be convicted. The evidence against them that implicates them in the charges is evidence of identification, and I have to warn you that there are many many cases, unfortunately, where people have been wrongly identified, sometimes by people who state the identification with utter certainty, "I have no doubt whatever that is the man or that is the woman, I would remember their faces forever, it is imprinted on my mind", you will hear those sorts of expressions. And, long experience in the courts teaches that it is very very common for people to make mistaken identifications. Counsel have pointed out to you how often is it that you could approach someone in the street and think it is someone you know well and then at the last minute realize it's not, even though you think they look exactly the same. So a person, a witness can give perfectly honest evidence, completely honest evidence but be mistaken. You have to look very carefully at the evidence of identification. The evidence of identification is given by [Ms F] and by [Ms P]. In the case of Mr Ghanem and in the case of Mr Hajeid that evidence of identification is not supported by anything else, there is nothing else to link those two people to what occurred in the park. You have to consider anxiously when you are looking at that evidence whether it is reliable evidence, there is no suggestion the persons concerned were not being truthful, is it reliable, is it a proper basis for it to be concluded that a citizen is guilty of serious criminal offences? If having given the matter anxious consideration you are uncertain, then you should give the benefit of that uncertainty to the accused and the accused are entitled to be acquitted. On the other hand, if having considered the evidence of identification you consider it is reliable, you then go on to consider the other matters in the case. 131 The appellants could not and do not suggest that there was an inadequate informing and warning of the jury as regards identification evidence generally. Their complaint is that the judge did not inform the jury about the reasons for caution in the circumstances of the particular case. In other words, he failed to link the general warning to the particular issues confronting the jury. 132 In R v Eldridge [2002] NSWCCA 205 James J (with whom Heydon JA and Kirby J agreed) said (at [42]-[44]): [42] … In sum, what was put was that in order for his Honour to comply with s.116 of the Evidence Act, it was incumbent on him to direct the jury concerning the absence from the evidence of matters said to be important or possible inconsistencies between witnesses on such matters and to describe those matters as "weaknesses in identification". Section 116 contains no such express requirement. Section 116 reads as follows:- "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." [43] However, in Domican v. The Queen (1992) 173 CLR 555, the High Court in reference to the warning required under the common law held at 561-562:- "The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." [44] Assuming, but not deciding, that the requirements of s.116 correspond entirely with those of Domican (supra), that decision does not require the judge to lend the judicial office to a characterisation of matters of evidence as showing weaknesses in fact. For a judge to do would be to intrude into the realm of the jury. It requires the jury to be instructed on matters of significance which the jury might consider might undermine reliability as the closing sentence of the passage cited makes clear. (See also Festa v The Queen (2001) 208 CLR 593, Gleeson CJ at [26], McHugh J at [80], Kirby J at [173] and [176] and Hayne J at [217-219].) 133 It is not necessary for a judge to lend judicial authority to every argument available to defence counsel on the evidence. Nor is it necessary for the judge to draw attention to every disparity in observed physical features of the alleged offender as noted by different witnesses (R v Cook NSWCCA, unrep, 24.8.98, Eldridge at [56]). 134 The general submission that the judge failed to relate the warning about identification evidence to the facts of the case must be rejected. His Honour said (SU 13-14): In the case of the other two accused it is purely identification evidence. In considering that identification evidence you must consider all of the circumstances in which the identification is made. You have the videos again to look at if you wish to. You have to consider the opportunity that each of them had to observe these persons on the night. You have to consider whether in fact either of them identified or had sufficient opportunity to clearly identify them at Chatswood for a start, being the first place they saw them, and then later at Northcote Park, being the second place. In between times on the evidence Messrs Ghanem and Hajeid were not in the van. Hence the opportunity to observe them was in two locations. Did they have sufficient opportunity, what did they observe? You look at things like the lighting in both places and what they were doing at the time. Were they looking at them, were they distracted, could they be confusing them with somebody else? There were eight men on this night involved in the incident on the evidence. Could they have been confusing them with one of the other eight or with some other person? [Ms P] referred to a friend of hers. Is that a sound basis for identifying a person; I have a friend who looks just like that therefore that is him? Think about it. That may be in a particular case and then again it may be a very good example how difficult it can be to be certain about identification. In relation to the events at Chatswood counsel for Messrs Ghanem and Hajeid put to you things like did they have any particular reason to observe either of them, what were they doing at the time, were they talking to other people? Was their attention diverted by Mr Skaf, were they really talking to him and not noticing the others? What was so significant about them anyway? Was there any particular reason for remembering two people out of eight? You have to consider that this case involves not only Messrs Skaf, Ghanem and Hajeid on the Crown case having sexual intercourse without consent, but other persons, other men who are unidentified, they could not identify anybody else. Then you look at things like the description and the photographs that were identified. You weigh up all these things and consider in the end, are you satisfied beyond reasonable doubt that the identification has been a proper one. If you are, you should then go on to consider the next aspects of [the] case. If you are not, you should think no more about the case because unless each of them is identified to your satisfaction then each of them is entitled to be acquitted. 135 When the judge was separately considering the identification issues involving Ghanem and Hajeid, he reiterated them in detail and in strong terms, albeit without repeating the word "warning". The jury were reminded to look at the video recording of Ms F's identification of Ghanem and were asked to consider it in the context of the occasions when she identified nobody (SU 56-7). 136 As regards Ghanem, the judge said (SU 57-8): In relation to Mr Ghanem, she was asked why she placed the circle around the number 14 and she said she recognised him on the night she was assaulted. "He was the one with the pony tail". She said "I saw him at Chatswood and the park". Well now, that is evidence that that was Mr Ghanem. You can look at the way in which she gave it to the police. You can compare what she said to the police and the way she did it by looking at the video with what she said in the witness box. You can decide for yourself whether she was certain in identifying or doing it hesitantly, looking carefully at it. There is evidence that Mr Ghanem wore a pony tail on other occasions. There was a search of the premises he lived at. You have been shown a video which is in evidence which has no sound on it showing police going through these premises and Mr Ghanem, as I remember him first of all appearing with a big hood on his head and a cap. He wears that for some time. Eventually he takes it off and you see what looks like a pony tail. That is hair tied up at the back with a rubber band or string or something around it. The photograph taken, his hair was hanging loose. In court he appears to be wearing much the same form of hair style. That is her identification. You have to look at her evidence and the opportunity she had for making the observations. It has been put on behalf of Mr Ghanem that she had very little opportunity, that he was only there briefly at Chatswood in her vision. The park itself was dark. How could you be certain of it. She never met him before. You have seen him sitting here. You can form your own opinion of how he looks. You may think he is a very distinctive looking man and he wears his hair style in a very distinctive way. Was he wearing it that way on the night? That is a matter for you to decide. Did she, having regard to the meeting in the park, the lighting at Chatswood, her opportunity to observe, distractions, really clearly identify. It has been put to you and you should think about that, that by the time it is said Mr Ghanem actually sexually assaulted her quite a few other men had sexually assaulted her. She had been crying. On her own evidence she was crying. She was upset. She may well have been very confused. She has given evidence that suggests that confusion. Was she with one man after another coming to her, as she described, was she really in a position to clearly identify any. Think carefully about it, as I said to you identification has always brought with it peril. People have been wrongly identified in the past by people who are utterly certain and yet sometimes years later are shown to be wrong. You should convict someone based on identification only if you are satisfied beyond reasonable doubt that the identification is accurate, that the person who gives the identification was reliable and accurate, had the opportunity to observe, did observe and what she has told you is accurate. As I said, there is no attack on the truthfulness as such. 137 His Honour reiterated Ms McSpedden's submissions, on behalf of Ghanem, in relation to the identification issues (SU 62, 63). 138 Ghanem accepts that the trial judge informed the jury of the special need for caution before accepting identification, and generally of the reasons for that need. He submits nevertheless that the judge erred in failing to inform the jury why there was a special need in the circumstances of this case. 139 The submissions implicitly accept that the judge gave directions that included the need for careful evaluation in a number of specifics related to the particular facts. The submissions seek to build an appeal on additional matters, some of which were addressed at trial, others of which were not the subject of complaint at trial. 140 The arguments developed by Ghanem in the written and oral submissions focused upon (a) the evidence given by a police officer, Sergeant Adams who had stopped the red vehicle on Parramatta Road; (b) certain evidence of Ms P; (c) the ramifications stemming from the possibility that Ms F was mistaken in saying that the long-haired man who assaulted her had a pony tail, not a plait and (d) a displacement effect. 141 As to (a), Sergeant Adams described each of the occupants of that vehicle, according to his recollection as prompted several weeks after the event. He described one of the occupants as being of Caucasian appearance with his hair in a plaited ponytail. It is submitted that the contrast between this description and Ms F's description of the man with a (mere) ponytail should have been spelt out to the jury in the summing up. In fact it was. Judge Finnane reminded the jury (at the request of Ms McSpedden) of the description given by the police officer who stopped the red car at Glebe. It was to the effect that one of the occupants had plaited hair and not a pony tail flowing (SU 67). Rule 4 should apply to the uncertain extent that any more should have been said. 142 As to (b) and (c), Ghanem's complaint is that Ms P gave evidence of a man with a plaited pony tail assaulting her and sexually assaulting her after the occupants of the red car had left the park. We deal with this issue later, where we consider the submission that the judge should have reminded the jury in the summing up about the basis for having directed a verdict in Ghanem's favour as regards counts 18 and 19 of the old indictment. For the moment, we point out that there was a direction on this matter at SU 49. And we add that the complaint raised first on appeal that the summing up was defective for not spelling out particular possibilities concerning the different pictures on the photoboard containing Ghanem's photograph is in our view meritless. 143 Issue (c) is Ghanem's complaint about the difficulties associated with photoboard identifications and the risk of the "displacement effect" where a witness subconsciously permits a photograph to displace his or her memory of the offender, leading to a false identification at a later identification parade (Alexander v The Queen (1981) 145 CLR 395 at 409, Clarke (1997) 97 A Crim R 414 at 429). This was not the situation that arose in the present case. No identification parade was offered either before or after the photoboards were shown to the witness. The photograph identified was incontrovertibly that of Ghanem. 144 Two photoboards, each containing 15 pictures were examined on 8 November, the occasion when Skaf was identified. Three photoboards of similar content were examined on 9 November, when Ghanem was identified. On the latter occasion Ms F said "he actually, like he had his hair tied back the night he assaulted me but I recognise the face. But he also made me give him oral sex." The complainant was asked about this evidence in re-examination. She said that "he was the face I saw at Chatswood and at the park" (Tr p505). Earlier, in cross-examination, Ms F denied the possibility that she had seen the man identified at Chatswood but not at Greenacre (Tr p466). Ms F acknowledged that photograph 14 on Ex C7 was the only picture of a man with long hair out loose, but she denied that she picked that photograph because it stood out as being a bit different from all the others (Tr p 467). Over half of the men shown on that photoboard had longish hair, albeit not visibly as long as Ghanem's (for some of them the hair was pulled back in such a way that it was not possible to determine its length). 145 Ghanem relies heavily on Clarke (1997) 97 A Crim R 414 at 429-30 as to the appropriate form of directions that should have been given. 146 There was evidence, including videotape evidence, that Ms P made photo identifications of "Adam" (Skaf) on 16 November 2000 and of Hajeid on 8 December 2000. It is the latter identification that is relevant as regards Hajeid's ground of appeal on this topic. The transcript of the video identification (omitting preliminaries) shows Ms P identifying Hajeid's photograph after having been asked to indicate "if you are able to positively identify any person whose image is in this presentation". She said "Yep, number 6" on the basis that she recognised the person identified on the basis that he was one of the group that approached the girls at Chatswood and who had made her give him oral sex at the park at Greenacre. She said that he was the man referred to as Sammy and he had travelled in the red car. His hair and his mouth were particular features about his face that stood out. She said that "he reminded me of a friend and so that's, like he was similar to someone that I knew, so, I recognise him.... Like, cause when I met him, he reminded me of my friend and there's just something about... ". This was evidence of a positive identification. 147 Ms P gave evidence about this identification, linking the identified person with the man called Sammy about whom she had earlier given evidence concerning an act of forced oral sex that took place near the toilet at the park. She said that the photograph "looks like Sammy", an expression that she explained in the following terms: "well, he's got the same features as Sammy did but I can't say, like, people look different when you see them in person." (Tr p577 ). Asked what she meant by this, she said: "Well, it looks like him as far as I can tell". (Tr p578) 148 In cross-examination Ms P agreed that she had given a description of Sammy as having curly hair with blond streaks. She also agreed that the photograph she had identified (ie Hajeid's photo) did not have blond streaks (Tr p664). That was as far as the cross-examination took the challenge in relation to the photoboard identification. 149 The crown prosecutor reexamined and elicited the following (Tr pp664-5): Q. Why did you pick the photo? A. Because it looks like Sammy. Q. What do you mean by that? OBJECTION (LANGLEY) QUESTION ALLOWED A. Because on the night at Chatswood I remember he looks like someone I knew, reminded me of someone I knew already, and that is how I could remember him. Q. And what was it about the photograph which you have circled that caused you to circle it? A. I just looked at the photo and then I pictured the night and that is who it looks like. Q. Excuse me? HIS HONOUR: She said, "I just looked at the photograph, I pictured the night, and that is who it looks like." CROWN PROSECUTOR: Like who? A. Sammy, it looks like Sammy. Q. And what, if anything, is there that effects on your view that it looks like Sammy if there are no blond streaks in the hair? A. What do you mean? Q. What difference does it make that there is or isn't blond streaks, in the photograph? A. It doesn't make a difference. Q. Why not? A. Because it looks like him, his face. Q. What bits? HIS HONOUR: She said "His face". CROWN PROSECUTOR: Q. Of his face, what bits? HIS HONOUR: Mr Crown, I think we have gone into this enough. 150 As regards Hajeid, the abovementioned warnings and directions were supplemented with the following (SU 58-59): In relation to Mr Hajeid , again, the major case or the most important element of the case against him is identification. Again you will be able to look at the video cassette and see how certainly it was that Miss P… identified him. Look carefully at both these pieces of evidence, the video concerning both women. See how they approach the task when looking at the photo boards. In her evidence in this court she said when shown the photo board that had Mr Hajeid on it, "It looks like Sammy, it has the same features as Sammy did but I can't say, like people look different when you see them in person, it looks like him as far as I can tell." In the video she was asked by the police "please indicate if you are able positively to identify any persons, images in this presentation" and her answer was "yep, number six". She was asked by the Crown in evidence "why did you say that". She said "because I think it is him". Now again, Mr Hajeid 's counsel, Ms Langley, criticised this identification evidence and invited you to look very carefully at it. "Is it sufficient"? "Are the circumstances sufficient"? There is evidence that he was the one who asked [Ms P] to get in the car at Chatswood. Is that something that draws attention to him. But certainly, from the time he got into the car and indeed by the time Ghanem got into the car they were not seen again by either of these women until they got to Northcote Park and you have to take into account that both of them were seen only after many other events, of a sexual nature, had occurred to both women. 151 Later, when summing up Hajeid's case his Honour said (SU 62): [Ms Langley, counsel for Hajeid ] says you wouldn't believe a word Mr Skaf says because he is a liar and I have explained to you before why she says that. Miss F… did not identify Mr Hajeid . Why is that if he was there? Why would she not identify Mr Hajeid and the other one would? She says the claim by Mr Skaf in the witness box that he rang Mr Hajeid is just false. There is nothing to support it, he is just doing it to make life difficult for Mr Hajeid . She said as far as Mr Hajeid is concerned, Miss P… had little opportunity to observe him. She had no reason to memorise the faces of any of the men. She was just someone who was going forward, together with Miss F…, to have a lot of fun. She had no more than six or seven minutes to observe Mr Hajeid , and at the time she was distracted by other events at Chatswood. Mr Hajeid was not in the white van, there were no lights in the park. The park was dark. On the video it took her 29 seconds to identify Mr Hajeid . You look at it. I didn't bother counting it myself, but the seconds were shown on the screen, you can certainly count it up, if you want. She says suspicion is not enough, certainty is needed. These things are true and you consider what she has said. 152 Hajeid's submissions concerning the directions about Ms P's identification of him as "Sammy" commence with the complaint that this evidence should not have been characterised as "identification evidence", but was properly to be seen as "resemblance" evidence (cf Pitkin v The Queen (1995) 130 ALR 35, R v Cook NSWCCA unrep, 24.8.98). Strictly speaking, this is a submission touching the admissibility of the evidence and not the directions that should have accompanied it. In any event, we cannot accept this characterisation of the complainant's evidence set out above. 153 Pitkin was quite unlike the present case. No question of excluding evidence arose. At issue was whether a conviction was "unsafe and unsatisfactory". The conviction rested on the fact that a witness who had seen the offender identified three photographs of the appellant with the comment "This looks like the person". The High Court held that this was consistent with an absence of positive identification and therefore incapable of sustaining the conviction. By contrast, Ms P's identification was clear and specific, being bolstered and not undermined by her explanation about Hajeid reminding her of a friend. 154 Cook was a case where the identification was explained contemporaneously on the basis that "He looked extremely like the person that was in the car". No objection was taken at trial and r4 was applied in the dismissal of the appeal. The conviction in Cook was not "unsafe or unsatisfactory", for reasons that cast no useful light in the present appeal. 155 Hajeid also submits that the directions were inadequate because they provided no assistance on how the jury should approach evidence that the appellant "looks like" the alleged offender. It is submitted that the judge should, at a minimum, have noted that the evidence was (or could reasonably be regarded as) evidence of resemblance only; that the jury should be careful before inferring that it was a positive identification; that even if it was a positive identification that they must still approach it with care; and that there may be many people who "look like" the offender, particularly given the general nature of the description of the offender. R v Turner (2000) 76 SASR 163 at [16]-[20], [36]-[40] and [101]-[102] is cited, but examination of those passages discloses that there is no similarity between the facts of that case and the present appeal. 156 The summing up made clear to the jury that they had to be satisfied that a positive identification had been made and that they had to consider general and particular issues requiring care in their evaluation. The directions are not to be faulted for additional factual arguments that might have been canvassed but which were not the subject of any requested redirection. 157 Nor were the jury misdirected, as Hajeid submits, when invited to look carefully at the video of the photographic identification process to "see how certainly it was that [Ms P] identified him" (SU 58). It would have been unrealistic and wrong to instruct the jury to consider only the complainant's evidence at trial as to her thought processes then or at the earlier time of the photoboard identification. No such direction was ever sought, for the good reason (we assume) that none was needed as to how the jury should go about their task of weighing these two items in evidence. The "real" evidence embodied in the video provided the more accurate window into what actually happened at the moment of identification, supplemented as it was by the complainant's later testimonial commentary and the opportunity to cross-examine generally. Jurors are capable of weighing this sort of material without special assistance unless the situation raises particular problems likely to be beyond the lay capacity to reason and assess evidence. 158 The directions are also challenged for having failed to refer to the evidence of Skaf and for having failed to give a warning about the risk of Skaf having made a mistaken identification. We deal with this aspect of the identification directions below. Directions re Skaf; Failure to give warning about Skaf's evidence (Ghanem Ground 3; Hajeid Ground 4) 159 Ghanem and Hajeid submit that the trial judge gave inadequate directions in relation to Skaf's evidence and that he failed to give a warning as to its unreliability. 160 Skaf's sworn evidence implicated his co-accused, to a degree. He did not say that they committed any offences or even that they had sexual relations with the complainants. Nevertheless, he placed them in the scene at Chatswood, in the red car as it proceeded on its interrupted journey from Chatswood to Greenacre, and among those who got out of the car when it arrived at the park. Skaf also said that Ghanem had plaited hair at the park (Tr p 1104) and he adhered to this in cross-examination (Tr pp1112, 1113). 161 As indicated above, Skaf was vigorously cross-examined by counsel for his co-accused who also addressed the jury that he was a liar with a motive to implicate them as part of a scheme to exculpate his brother and his brother's friend. 162 Skaf fell within s165(1)(d) of the Evidence Act, but there was no request for a warning in terms of subsection (2) thereof. The appellants submit nevertheless that the judge had a duty to warn the jury in light of Webb v The Queen, Hay v The Queen (1994) 181 CLR 41. Reliance is also placed on Chen (2002) 130 A Crim R 300 at 324 [58]. The Crown cites R v JGW [1999] NSWCCA 116 at [62] and R v Clarke (2001) 123 A Crim R 506 at 526-9 as to the fact that a warning was not requested indicating strongly that the summing up was not defective (at least if there was experienced trial counsel). 163 The jury were obviously aware that Skaf's credibility was under serious attack from all quarters, and with good justification in light of the content of his two ERISPs. There were frequent reminders during the summing up. The clearest indication that the jury viewed him as a man of little credibility lies in the verdicts they brought in against him. 164 The appellants Ghanem and Hajeid fear that the jury drew some support for the complainants' evidence against them from its partial corroboration by Skaf. This is indeed possible and it therefore forms the background against which these grounds of appeal come to be addressed. The jury had been given conventional directions as to their capacity to accept part of a witness's evidence. 165 The nub of the complaint formulated on appeal is that the trial judge should have told the jury that Skaf fell within "a particular category" (of suspect witness) (Ghanem submissions, par 46) and that they should use caution in deciding to accept his evidence for that reason. 166 In our view, no miscarriage stemmed from the absence of this unrequested warning. This was not a case in which an accomplice had made admissions out of court that were unable to be tested in court (contrast Williams v The Queen (2000) 119 A Crim R 490). Nor was Skaf the common type of co-accused who had something to gain by implicating accomplices (such as occurs with an indemnified Crown witness). It is true that these appellants suggested that Skaf was concerned to protect his brother and his brother's friend Sheikh. But as we point out elsewhere, this defence lacked any evidentiary basis. More to the point, nothing was shown at trial or on appeal to explain how implicating Ghanem and Hajeid assisted in some scheme on Skaf's part to get his brother and his brother's friend off the hook. On all versions, there were eight young men in the two vehicles and at the park. 167 Nor was this a case where Skaf's evidence stood alone. At its highest, it added weight to the evidence of the complainants. 168 It may not be conclusive, but it is nevertheless significant in considering whether there was a miscarriage, to note that neither appellant made the request contemplated by s165(2). One suspects that no warning was thought necessary because the attack on Skaf's credibility was so patent. That attack came from both the Crown and the co-accused. There would also have been real difficulty in formulating the missing explanation that the appellants now contend should have been given as the focus of the judicial warning. There was simply no evidence to support the theory that Skaf was seeking to protect his brother and his brother's friend. What was the judge to say in these circumstances? What could have been hypothesised about Skaf having a false motive to implicate his co-accused in a manner that was both fair to Skaf and consistent with the evidence? It is difficult to see how naming Ghanem and Hajeid enhanced Skaf's credibility, as Ghanem and Hajeid now submit. 169 Skaf's evidence about the presence of Ghanem and Hajeid did not have the effect of downplaying Skaf's own role or increasing that of the others (contrast R v Diez-Orozco, [2003] NSWSC 1050 at [14]). To have suggested or even hinted otherwise would have been unfair to Skaf without materially advancing the legitimate interests of his co-accused. 170 Webb's and Hay's Case does not assist the appellants. A man (Webb) and woman (Hay) were charged with the murder of a man with whom they had been drinking. Hay gave evidence that although she was involved in the violence against the deceased, it was Webb that delivered the fatal blow. Webb did not give evidence. The judge warned the jury that, for the purpose only of determining Webb's guilt, they should treat Hay's evidence as that of an accomplice, and should not rely on it in the absence of corroboration or unless they were convinced it was reliable. The High Court held that this accomplice warning had not prejudiced Hay's defence. The balance between the interests of Webb and Hay was appropriately maintained. The leading judgment on this issue was given by Toohey J, who pointed out (at 95) that Hay was, on her own evidence, clearly an accomplice to the killing of the deceased. The directions confined the warning to the use which might be made of Hay's evidence to convict Webb (see also Deane J at 81). 171 The judgments in Webb and Hay stressed that the need for and terms of an appropriate warning in such a case had to be determined with reference to the particular facts. These principles do not assist Ghanem and Hajeid, who did not seek the warning they now invoke. 172 Hay's situation was also different to that of Ghanem and Hajeid in that a warning in Webb's interest was required because Hay was obviously inculpating Webb by exculpating herself. She was clearly an accomplice who had much to gain by implicating her co-accused (see per Brennan J, dissenting at 64-5). Skaf's naming of his co-accused was not of that character. 173 One passage in the summing up is raised as a matter of particular concern by Ghanem. His Honour said (SU 64): Their presence, their proved presence would of course create great difficulties for them, if you considered that the other evidence was established. So if you considered that Mr Skaf correctly put them in the park, even if you did not accept the identification evidence of Ms F… and Ms P…, you could accept evidence that they were there. You could also accept that they were there, having got there in a red car, because of the evidence of Mr Skaf again that they arrived in the same red car that they had been in at Chatswood. If you accept Mr Skaf's evidence, even if you do not accept the identification evidence, then the other evidence still stands against them that they were there. 174 Ghanem submits that this indicated to the jury that they could convict him based on Skaf's evidence, even if they rejected the identification evidence of Ms F. This is a forced reading of a passage that was not the subject of any requested redirection. At its highest, the direction informed the jury that Skaf's evidence of identification of his co-accused was in fact evidence. In the opening sentence of the passage complained of and elsewhere in the summing up, the jury were told that they could not convict without accepting the identification evidence of the complainants (see SU 12, 13-14, 58-9). It is inconceivable that the jury would have done otherwise. 175 Hajeid's submissions generally followed that of his fellow appellant in this regard. One particular submission, namely that there was error in failing to give a warning regarding the possibility that Skaf was mistaken in identifying Hajeid, is quite absurd in the circumstances. The two men were friends from their schooldays, well known to each other. Their telephone numbers were coded into each other's mobile phones and they spoke to each other on the night in question when the cars stopped in the Annandale area. Dhanhoa v The Queen (2003) 77 ALJR 1433, [2003] HCA 40 is a welcome reaffirmation that the Evidence Act is to be applied as a working tool in the context of the adversary system. To suggest that Skaf's role of co-accused was sufficient in itself (by analogy to s165(1)(d)) to call forth a duty to give an unrequested warning about the risk of him making a mistaken identification is quite fanciful. Skaf may have been lying when he implicated his co-accused to the extent that he did, but he could not have been mistaken and no such suggestion had been put to him in cross-examination. The logic of the argument would require such a warning to be given if one brother testified against another about the latter's role in a joint criminal enterprise. 176 The failure to give these unrequested directions did not lead to a miscarriage of justice. Rule 4 should be applied in relation to this particular complaint and these two grounds of appeal generally (see generally Papakosmas v The Queen (1999) 196 CLR 297 at 319, R v ITA [2003] NSWCCA 174). Directions in relation to the failure of Ghanem and Hajeid to testify; directions in relation to the possibility that Tayyab Sheikh was mistaken for Hajeid (Ghanem Ground 6; Hajeid Grounds 5 and 5A) 177 Section 20(2) of the Evidence Act permits a judge to comment on a failure of an accused to give evidence. What is not permitted is for the judge to "suggest" that the accused failed to give evidence because he or she was guilty, or believed that he or she was, guilty of the offence charged. 178 These grounds of appeal relate to certain directions given to the jury before the summing up and between the addresses by counsel for Ghanem and Skaf. The directions arose out of what we have characterised as the improper remarks made in the final address by counsel for Ghanem. Final addresses for the accused were given in the order: Hajeid, Ghanem and Skaf. 179 Ms P had identified Hajeid as the man called "Sammy" who had assaulted her at the park. Counsel for Ghanem suggested to Skaf in cross examination that he was seeking to protect his brother and his brother's friend Tayyab Sheikh by implicating Ghanem. This in turn was linked to the allegation that Skaf had made the threatening gesture towards Chami because he knew that Chami had nominated Mohammed Skaf and Tayyab Sheikh among those present at the park (Tr pp1112-3). Counsel for Hajeid cross-examined Skaf and put to him that a friend of his brother was known as "Sam" or "Sammy" (Tr p1120). Skaf had denied all of these matters and there was no further evidence on them. 180 Notwithstanding, these matters were raised in final addresses on behalf of Hajeid and Ghanem, culminating in Ms McSpedden's broadside attack on Skaf's credibility based upon reminding the jury of her cross-examination of Skaf in which she put these matters to him. 181 As indicated above, counsel for Skaf promptly sought a discharge of the jury; alternatively, protective directions before he commenced his address. He was concerned to have the poison removed quickly from the jury's mind and he had a legitimate interest to know what would be said on the topic in case he might have to address it in his own submissions. There was more than a suggestion that he would make his own comment about the failure of Skaf's co-accused to give evidence unless the judge took matters in hand. 182 In this context his Honour gave the directions now objected to by Ghanem and Hajeid. The full passage is set out below, with emphasis upon the portions of which Hajeid and Ghanem complain on appeal. His Honour said (Tr p1291): HIS HONOUR: Ladies and gentlemen, before Mr Healey starts, I want to say something. In submissions that were just put to you, submissions were made about possibilities. Mrs Langley put to you in the context that in her submission to Mr Skaf was a liar, that Mr Skaf had denied Tayyab Sheikh was Sammy. Indeed, that was so, he was cross-examined and the question was put to him; "you know Tayyab Sheikh to be Sammy". And he denied Tayyab Sheikh was Sammy. It was put Mr Skaf is a liar. So it was put to you as a possibility Mr Skaf being a liar that it may be that Tayyab Sheikh was Sammy and there was a wrongful identification. Can I just say this: That submission is not founded on any fact. If a witness has a proposition put to him and denies it, then unless other evidence is called there is no evidence to support it and it is illogical, absolutely illogical to say that because someone isn't telling the truth about some matter generally, because he denies something, that proves it is true. It is illogical and wrong. The only way which it could have been established that Mr Tayyab Sheikh was known as Sammy would have been the calling of evidence to establish that fact; none was called. You can conclude, therefore, there is no evidence whatsoever that Mr Tayyab Sheikh is Sammy. Similarly the possibility raised that Mr Sheikh may, indeed, have been at the park is supported by no evidence. Mr Skaf denies it, whether he be regarded by you as lacking credibility, there is no evidence he was there. Evidence could have been called to establish that, if it was a matter of importance, but none was called, therefore it can be concluded that there is no evidence that Mr Sheikh was at the park. That proposition was also referred to by Miss McSpedden in her address, that was the claim that Tayyab Sheikh may have been the assailant. And it was put in the context that in her submission Mr Skaf is an undoubted liar therefore it was said you could consider that as an issue. I tell you now there is no issue for you to consider on that. There is no evidence whatsoever that Mr Tayyab Sheikh was at the park. There was no evidence that Mr Tayyab Sheikh had anything to do with any of the events on this night. And if the persons who wish to assert that was so, Mr Ghanem and Mr Hajeid, wish to establish as a fact that he was there and that he had, they could have given evidence or they could have called him. No evidence was called, therefore you can conclude there is no such evidence that Mr Sheikh was at the park. You thereafter should disregard those possibilities, there being no basis in evidence for those possibilities. I say this now because Mr Healey has to address you and therefore I have given you that ruling. I direct you on those matters and he need not. If he wishes to go over it he may but he need not deal with these matters because they are matters that are irrelevant. The evidence as to Sammy is the evidence of the trial. The only evidence given as to Sammy was given by Miss P..... and it was given in the trial. There is no other evidence to suggest anybody else was Sammy. I will have something to say later on about Mr Skaf and his credibility. That is all I wish to say this at this point. Remove altogether from your minds the notion that you have to consider possibilities based on no evidence. In general terms I can tell you, and it applies to anything said in the trial, if there is any matter of importance that is not the subject of evidence, then you can draw no conclusion about it. It would be unfair to do so. You are not permitted to speculate. The only evidence as to who was at the park is the evidence given in this trial. HEALEY [counsel for Skaf] : Your Honour, there are just two issues on which I invite your Honour to address the jury on the same basis as part of your all encompassing direction. That is the suggestion that Mr Skaf said words to this effect to his co-accused, "If I go down you are coming with me", that the jury only has Mr Skaf's denials in respect of that. And secondly, that was put by Miss Langley, and secondly my learned friend Miss McSpeddon spoke about the threats to Mr Chami and that Mr Skaf said Mr Ghanem was there to protect another person. HIS HONOUR: In evidence in the trial when Mr Skaf was being cross-examined it was put to him by Ms McSpedden that during a hearing that occurred in your absence, a hearing that concerned the admissibility of evidence, a Mr Chami came into the courtroom to give evidence at that hearing. And it was put to him that Mr Skaf looked across to him from where he sat in the dock and drew his finger under his chin, in this fashion that I am indicating to you now from left to right, to indicate that the cutting of a throat. And Mr Skaf said, "No, I don't recall it". The question was put, "You don't recall it, or you say you didn't do it?" and he answered, "I didn't do that". It was put that Mr Chami had told police that Tayyab Sheikh and Mohammed Skaf were two people of the eight at the park. Mr Skaf denied that proposition that Mr Chami said that. And it was put to him that in these terms "You are prepared to nominate Mr Ghanem being at the scene rather than somebody else you are protecting, isn't that the case?" And he said, "That is not true". Now, members of the jury, if Mr Skaf moved his hand across his throat in a way that suggested he would cut the throat of a potential witness, he would in fact be committing a serious crime. He would be attempting by intimidation to prevent a witness from giving evidence. That was a crime known as the perversion of the course of justice. Mr Skaf has denied doing any such thing. I might say the hearing was before me. There is no evidence in this trial that he did any such thing. And yet there are people present at the trial who were here during that session of evidence. Those people include counsel, solicitors for the parties, and the two accused other than Mr Skaf. As well as that there have been people in the gallery, all witnessing what occurred during that time. Not one person has been called to substantiate the claim that Mr Skaf sought to intimidate a witness in a hearing before me or by threatening that he would cut his throat. And you are entitled to conclude from the absence of the calling of any evidence that indeed there is no evidence whatsoever that any such thing occurred. Had there been evidence of such a thing occurring it no doubt would have been called. Similarly, it is said a threat was made to Mr Ghanem. If such a threat was made, Mr Ghanem could have given evidence of that threat. If that was important to his case. It must have been important to his case, because his counsel suggested to Mr Skaf that the threat had been made. Mr Skaf denied making any such threat. Mr Ghanem did not give evidence that any such threat was made. You can therefore conclude that there is no evidence of any such threat and no such threat was made indeed, because if it had been, evidence would have been given. Counsel operate on instructions from their clients. The client gives instructions that something happened. Counsel acts on the assumption it did happen. It carries the consequence that if it is to have any weight before a jury, evidence has to be given to support it, none was given. Therefore you must disregard any suggestions of these matters that I mentioned bearing on Mr Skaf's credibility. There is no evidence that Mr Skaf threatened anybody. There is no evidence that Tayyab Sheikh was at the park or was involved in any way. And another person that was mentioned in this context was Mohammed Skaf who is a brother of Mr Skaf. There is no evidence Mr Mohammed Skaf was at the park or any way involved although you were referred by Miss Langley to a photograph this morning which is a photograph of Tayyab Sheikh which shows somebody with curly sort of hair and streaks. There is absolutely no evidence that that person was the person known as Sammy. So you must disregard those submissions in the absence of any evidence to support them and you must draw the conclusion that Mr Skaf made no threats and those persons were not present. McSPEDDEN: In that last set of directions to the jury Your Honour indicated to the jury that they would be entitled to positive conclude that no such threat, that was the threat in terms of Mr Chami, was in fact made. I would ask your Honour to withdraw that observation. In my submission what the jury is entitled to conclude is that there is no evidence in the trial to conclude that such a threat was made --- HIS HONOUR: I decline to withdraw that. If a positive assertion is made that a particular event has occurred by the person who could give evidence about it and that person refuses or declines to give any evidence about it then the jury can conclude the event did not occur. 183 In the first bolded section, the judge inferred that Ghanem as well as Hajeid had suggested that Sheikh was at the park. Strictly speaking this was wrong, because the highest that Ghanem's counsel went was to suggest that Skaf was motivated to lie because he knew that another person (Chami) had implicated Sheikh in a statement to police. The two matters were different, but the distinction is a fine one in the context. If the particular factual error was perceived at trial it was allowed to pass without a request for redirection. Even if this was not a deliberate stance it is difficult to see what difference the factual correction would have made beyond drawing further attention to the matter. Rule 4 should be applied as regards this criticism. 184 In this Court Ghanem and Hajeid submit that the bolded portions involved an impermissible comment upon their failure to testify. They take no point about the balance of the direction, which was an emphatic statement to the jury about the absence of evidence to support the defence hypotheses concerning Mohammed Skaf and Tayyab Sheikh being in the park, or Skaf having threatened Chami when the latter came to court. 185 It was submitted that these directions breached fundamental accusatorial principles (RPS v The Queen (2000) 199 CLR 620, Azzopardi v The Queen (2001) 205 CLR 50, Dyers v The Queen (2002) 210 CLR 285). They invited the jury to conclude that certain events did not occur and to reason towards that conclusion by an impermissible manner. 186 The "events" were that Tayyab Sheikh and Mohmmed Skaf were at the park and that Sheikh's nickname was Sammy. There was no evidence of this and the judge was admittedly entitled to tell as much to the jury in emphatic terms. It would also have been open to Skaf to have gone further and suggested that his co-accused had not given evidence because they believed that they were guilty of the offence concerned (cf s20(2)). Skaf's counsel was foreshadowing that he would weigh in strongly in his address unless the judge gave an adequate protective direction. 187 In light of these considerations it is difficult to see that any miscarriage resulted. But the prior question is whether the judge's remarks contained the suggestion prohibited by s20(2). 188 The directions given in the general summing up that followed Skaf's counsel's address were exemplary as regards the Crown's onus. The jury were told that there was no onus on the accused to prove anything (SU 2). His Honour also said (SU 15-16): The other two accused exercised a right to give no evidence, that is their entitlement. They also exercised a right to call no evidence, that is their entitlement. I have already commented on one aspect of the exercise of that right. That was to say Mr Skaf was attacked and a possible scenario was suggested where other persons were present in the park and one was said to have been Sammy. Hence it was put Mr Hajeid was not Sammy, it may have been somebody else who was Sammy. I have commented on the fact that as they called no evidence about that, they gave no evidence, those were clearly just assertions about which there is no evidence. You can not hold it against them that they have given no evidence. All you can say is that by giving no evidence they put nothing forward to you to assist you in the case. They have relied on what emerges from the Crown case and what criticisms can be made of it. 189 This exemplary direction elicited no request for redirection. It also neutralised any sting from the earlier direction. We reject the submission that the jury were being reminded of the stronger terms of the direction given the previous day in the interlude between the addresses for Ghanem and Skaf. 190 Hajeid submits that merely because there is no direct evidence of a hypothesis consistent with innocence does not mean that the jury may disregard the possibility. Accordingly, Judge Finnane should not have told the jury to disregard the possibility that Tayyab Sheikh was at the park. R v Al Khair (NSWCCA 20.6.94). R v Osman, NSWCCA, 10 March 1998 and Adler [2002] NSWCCA 180 are cited. It is submitted that the defence was entitled to put forward the hypothesis that the appellant had been mistaken for another man. However, the hypothesis being addressed by counsel at trial went much further, and it rested upon an evidentiary basis that was wholly absent. In any event, this particular submission does not really address the s20(2) issue, because the appellants accept that it was open to the judge to instruct the jury that there was no evidence of the Tayyab Sheikh hypothesis. 191 The three cases cited all deal with a situation where the evidence is "susceptible of a reasonable explanation other than that the accused committed the crime" (Al Khair at p38 per Priestley JA, Gleeson CJ and Wood J concurring). This Court has recently emphasised that a hypothesis must be both "reasonable and available on the evidence" (R v Park [2003] NSWCCA 203 at [56] per Shaw J, Ipp JA and Buddin J agreeing). Since there was no evidence and since counsel's submission was quite improper, it was well open to the trial judge to make the comment – so long as the prohibition in s20(2) was not breached (another matter entirely). 192 The two appellants submit that the direction invited the jury to draw an adverse inference from the failure of the defence to call evidence on the issue, thereby contravening Dyers. There was in terms no direction along the lines of Jones v Dunkel (1959) 101 CLR 298. Nevertheless, this was not a case in which the facts were peculiarly within the knowledge of the accused, sufficient to attract the reasoning in Weissensteiner v The Queen (1993) 178 CLR 217 as explained in Azzopardi at 74 [64]. It follows that the general rule applied, prohibiting a direction that the accused would be expected to give evidence personally or call others to give evidence (see Dyers at 291[5], 305[52], 328[121]). 193 Ghanem and Hajeid also submit that the direction was unfair because it was capable of being seen by the jury as judicial criticism of the manner in which they had each conducted their case at trial. In a sense it obviously was, but the thrust of the submission was that the criticism was unjustified and that the jury were being invited to reason that Ghanem and Hajeid were guilty of the offences charged because they failed to adduce evidence in support of the hypotheses raised by their counsel in the addresses. 194 These appellants also submit that the reference to counsel operating on instruction from clients carried a suggestion that the client told lies to his counsel (cf R v Birks (1990) 19 NSWLR 677 at 690-2, 702-3). We do not agree. If this inference had been conveyed in the atmosphere of the trial, one would have expected counsel to have raised this particular complaint at the time. 195 In our view, the direction given to the jury shortly before counsel for Skaf addressed did not offend s20(2) or otherwise cause the trial to miscarry. The context was specific and confined to scotching the improper suggestion raised in counsel's address. The directions given at that stage of the trial and the terms that were used would not have suggested anything to the jury beyond despatching from their minds the Mohamed Skaf/Tayyab Sheikh hypothesis and the unproven springboard upon which it had been raised. In other words, the comment did not suggest that the defendants had failed to give evidence on the hypothesis raised by their counsel because the defendants were, or believed that they were, guilty of the offence charged. 196 Hajeid submits that the real sting in the tail was the direction that, in the absence of evidence to support the submissions of counsel, the jury "must draw the conclusion that …. those persons [Mohammed Skaf and Tayyab Sheikh] were not present" (Tr p1294). This "bottom line" as it were is unfortunately expressed in the form of a direction to find a fact, but it does not infringe s20(2). It is really just an emphatic direction that the jury rely on the evidence and only the evidence. The submissions of counsel with their illogical hypotheses erected upon Skaf's denials were not to be used as a substitute for evidence. There was no evidence about these two men being in the park, end of question. This did not suggest anything about the appellant's guilt or his belief as to guilt. 197 The exemplary direction in the summing up did not only omit any problems associated with the earlier direction. It corrected the earlier direction by instructing the jury not to hold it against the appellants that they gave no evidence on the issue that their counsel had sought to raise. 198 We therefore reject these grounds. Wrongful admission of evidence of Skaf's convictions (Skaf Ground 1) 199 As indicated above, the Crown Prosecutor was given leave to cross-examine Skaf as to those of his prior criminal convictions that the judge considered went to his credibility. And, when Skaf did not admit them (professing lack of memory) the Crown was permitted to prove the convictions in reply. 200 The full context in which Skaf gave the evidence found to have raised his good character has been set out above. We shall briefly recapitulate. 201 Skaf was being cross-examined by counsel for Ghanem, who was putting to him that he was a liar. This was based mainly upon the change of stance between the first and second ERISPs. 202 In the first record of interview Skaf generally declined to answer any questions directed specifically at the complainants' allegations. But, towards the end he said: "I haven't done nothing, mate, I don't know what you're talking about". In our view, Ghanem's counsel was entitled to see this answer as going beyond invoking the right to silence and to cross-examine Skaf on the basis that he lied in the first ERISP. (That is not to say that Skaf was disentitled from putting a different interpretation on the matter, particularly as he was being assailed for having given a knowingly false answer. This in effect was what Skaf was endeavouring to do at the critical point of the cross-examination.) 203 There was the following exchange in response to questions putting to Skaf that he had lied at the first interview (Tr p1109, emphasis added): McSPEDDEN: Q. It was an interview in which you say, although you'd been advised not to say anything to the police, you lied and said you didn't know anything about the girls in the park on the night in question? A. Excuse me, don't call me a liar. I did not lie. They're the words that came out of my mouth and they're the words out --- Q. You're saying they're the truth? A. What? Q. You're saying they're the truth? A. The first statement I made? Q. Yes. A. They're the words. You can play the tape and listen to it. They're the words I used to get out of this. I've never been charged with anything. They're the first charges I've ever had. Other than a driving offence. 204 At this stage the prosecutor applied for leave to cross-examine Skaf about a number of convictions, relying upon ss110 and 112 of the Evidence Act. (Tr p1153). 205 It was common ground that Skaf had "blurted out" his assertion that he had never been charged with anything other than a driving offence (see Tr p1154. See also SU 53). Thereafter the paths diverged. The Crown urged that the witness gave a non-responsive answer with intent to convey to the jury that he was both a person of good character and inexperienced in his dealings with the police. The prosecution argued that it should therefore be permitted to show that Skaf was in truth a person of bad character and that his refusal to admit the offences reflected adversely on his credit (Tr p1154). The defence submitted that the answer did not involve a "bold statement of character as such". The witness was doing no more than entering into an argument with the cross-examiner. Alternatively, s192(2)(b), (c) and (d) were invoked. 206 At trial, counsel for Ghanem and Hajeid indicated that they supported the Crown in this matter. 207 The trial judge gave the prosecutor the leave sought. In his reasons, his Honour summarised the exhibit tendered by the Crown on the voir dire and held that it established that Skaf had not told the truth in saying that he had not been charged with anything. The exhibit revealed five quite recent, separate matters involving charges laid against Skaf and resulting in what may neutrally be termed adverse outcomes. These were: (i) "Findings of guilt" made at the Bidura Children's' Court on 23 September 1997 for driving a conveyance taken without the owner's consent and driving without a licence; (ii) A charge of larceny at the Bankstown Local Court on 8 October 1998 resulting in a fine; (iii) An appearance at the Downing Centre Local Court on 2 December 1998 for a series of driving offences, the most serious of which was driving in a manner dangerous to the public. These resulted in a fine and disqualification from driving; (iv) An appearance at the Lidcombe Children's' Court on 12 November 1998 for maliciously destroying or damaging property; (v) An appearance on 20 July 2001 at the Bankstown Local Court for shoplifting goods said to be valued at $2,000. 208 Judge Finnane held that there were convictions which could enable the jury to conclude that (a) Skaf was a person of bad character and (b) he was dishonest. We read his Honour as indicating that the dishonesty stemmed in part from Skaf's false assertion in his evidence that he had never been charged with anything. The witness' honesty bore heavily as an issue in the case and it affected both the Crown and the co-accused. 209 The reasons make it plain that his Honour appreciated that leave had been sought and that it could be given on terms, taking into account the matters specified in s192(2) of the Evidence Act. His Honour also considered whether he was required to refuse to admit the evidence on the ground that its probative value was outweighed by the danger of unfair prejudice (s137). 210 His Honour placed particular weight on the fact that Skaf's honesty was a critical matter in the trial. It was critical both as regards the Crown case and as regards the case of the other accused who were partially implicated by Skaf's sworn evidence. Judge Finnane concluded that the evidence was important because it bore upon Skaf's credibility. He was satisfied that its probative value outweighed the danger of unfair prejudice. Pursuant to s192 the Crown was directed to limit its cross-examination to the matters at the Bankstown Local Court and the Lidcombe Children's Court. It is apparent that this was done because Skaf had admitted to having had a driving offence and because the matters on which cross-examination was permitted were seen as being capable of affecting his credibility. 211 No submission had raised the fact that Skaf was a minor when some of the adverse matters occurred. The failure to consider such a possibility cannot be regarded as vitiating the judgment referable to s137, particularly since all of the events had taken place within approximately three years of the trial. 212 Skaf's cross-examination resumed. Some time later the prosecutor asked him whether he remembered being charged at Bankstown Local Court with larceny and being fined $450 plus court costs of $51. It was not put to him that there had been a conviction, simply that the charge had been found proven (Tr p1175). Skaf said that he did not remember that charge at all. Nor did he remember being in the Lidcombe Children's' Court in relation to a matter of maliciously destroying or damaging property. Skaf was asked whether he remembered a court appearance at the Bankstown Local Court on 20 July 2000 on the shoplifting charges. He said he could remember that (Tr p1177), but he adhered to his earlier evidence that he did not remember the earlier charges. 213 The Crown then sought and was given leave to prove three matters (Tr 1201). The evidence was led in such a way as to avoid disclosure of anything suggesting that Skaf had given a false name or address when charged. A police officer gave evidence concerning the criminal history of Skaf obtained from computer records. The officer stated that the database showed records of a "conviction" for larceny at Bankstown Local Court on 8 October 1998, resulting in a fine of $450 plus court costs; an "entry" showing that proceedings at the Lidcombe Children's Court on 12 November 1998 for the offence of maliciously destroying or damaging property had resulted in a fine of $300; and a "conviction" on 20 July 2000 at the Bankstown Local Court for the offence of shoplifting of property to a value of less than $2000, resulting in a fine of $350 plus court costs. 214 The orders made by the Bankstown Local Court were referred to as "convictions" without objection, but this label was not given to the "outcome" of the Children's Court proceedings. This complied with an earlier direction by Finnane DCJ (see Tr p1200) and was not the subject of any objection at trial. 215 This Court has received affidavit evidence from the appellants and the Crown in relation to the matters that were put to Skaf in cross-examination and proved through the evidence of the police officer called in the case in reply. This material does not cast any doubt on the fact that Skaf was dealt with by various courts as established at the trial. 216 The new evidence casts some additional light on the issues. It shows firstly that the convictions or orders resulted from the process known as court attendance notices (cf Justices Act 1902, s100AB). Secondly, it shows that Skaf was taken to a police station, photographed and fingerprinted in relation to the three matters put to the jury. Thirdly, it shows that the matters were disposed of in the absence of the defendant, who did not appear (cf s75B). Fourthly, it shows in the case of the proceedings at Bankstown Local Court that Skaf had given a false address and, in one case, a false name ("Adam Newlan") when first apprehended, and that the court attendance notices had been framed accordingly. Fifthly, the Court Attendance Notices issued to "Bilal Charmy" and "Adam Gihad Newlan" were proved to have been handed to Bilal Skaf. This proof came in the form of police evidence plus signed acknowledgements of receipt (see Additional Crown Submissions §§34-41). 217 This material obviously cuts both ways. 218 In this Court, Skaf submits that the rebuttal evidence did not disclose the fact that he had been "charged" as opposed to being summonsed or made the subject of a court attendance notice. In our view this is a distinction without a relevant difference. The material relied upon by the Crown in support of the application for leave to cross-examine had referred to s75B of the Justices Act. It appears that everyone involved in the trial overlooked the import of that provision (cf Tr p1154). 219 Skaf also argues, as we understand it, that the recording of the false address would tend to explain why he was genuinely ignorant of the outcomes and fines, because any notification thereof would not have got back to him. 220 The Crown for its part points to the evidence of the false addresses and false names as indicating why Skaf may have lied when professing ignorance of these matters when cross-examined about them. The likelihood that this was so is increased in light of the evidence that the court attendance notices were sent out after Skaf had been taken to a police station, photographed and fingerprinted on two of the occasions. These are not experiences likely to have been forgotten. (It should be said at the outset that nothing was ever conveyed to the jury about these aspects of the convictions. All that was put in cross-examination and established in evidence was that Skaf had been dealt with for these offences at the places, dates and in the manner indicated.) 221 The primary and logically anterior submission in this Court is that Skaf had not "adduced" evidence to prove good character, with the consequence that s110(2) was not engaged. Unless it was, the Court would not need to consider issues arising under ss137 and 192. 222 Little attention was paid to this threshold issue at trial. There is no doubt that the prosecutor invoked s110(2) and that the Crown recognized that leave was required before that aspect of the cross-examination could proceed. There were submissions in the most general terms about the matter, but the point was taken on Skaf's behalf that good character had not been raised (Tr pp1154-5) In granting leave, the judge implicitly accepted that the threshold was passed, but his reasons concentrate on ss137 and 192. Skaf submits that the reasoning is flawed because it does not address the s110 threshold. 223 Skaf submits that his assertion that he had not been "charged" with any offence apart from a driving offence did not raise character, intentionally or otherwise. To say that someone has not been "charged" is not to assert that he or she is a person unlikely thereby to have committed the subject offence. Skaf further submits that good character was not raised deliberately (citing Gabriel v The Queen (1997) 76 FCR 279 and R v Fuller (1994) 34 NSWLR 233). At most, he was endeavouring to explain why lack of experience led to the form of the answers he gave at his first ERISP. 224 In our view, these submissions do not do justice to the answer that Skaf gave, or the context in which it was given. Skaf may well have been intending to assert his inexperience in dealing with the police, but the words he used went beyond this. Implicitly but clearly, they asserted that his only adverse dealings with the police involved a single driving offence. Not everyone who is charged is found guilty, but to say that someone has not even been charged (when that word is used, as it was here, generically) is to assert that nothing has even occurred to set in train the wheels of a prosecution. In Finnane DCJ's words, Skaf had "put forward that he [had] no previous untoward brushes with the law" (Reasons, 17 December 2001, p4). 225 Skaf was doing more than asserting that his inexperience in dealing with the police was the explanation for his coy answers at the first ERISP. He was asserting among other things that he should not be viewed as a liar, because of his general good character. His answer was evidence "adduced to prove" good character generally, whether or not he blurted the answer out without much thought. This was the trial judge's implicit assessment in his judgment of 17 December 2001. His Honour was well placed to form this view in the atmosphere of the trial. It is the conclusion we would also draw from reading the transcript. The suggestion that he had lied in his first ERISP had been put much earlier to him. It would not have been a surprise to him that the cross-examiner was labouring the point. 226 The principles were discussed recently by this Court in R v Bartle & Ors [2003] NSWCCA 329 at [115]-[146]. At [145]-[146] Mason P and Barr J indicated (obiter) that s110 required proof of a subjective intent to raise good character before it could be held that evidence had been "adduced by a defendant to prove … good character". This can occur in cross-examination, if there is a non-responsive answer that amounts to more than an emphatic denial of guilt. Skaf's answer in the present case satisfied these criteria, in our view. 227 The evidence being admissible, did the judge err in failing to exclude it because its probative value was outweighed by the danger of unfair prejudice to Skaf (cf s137) or in failing to restrict the Crown in its use (cf s192)? The former consideration involves a balancing as distinct from a discretionary analysis, with the focus being upon "unfair" prejudice. The latter consideration involves the exercise of discretion, with consequential impact as regards appellate review. 228 We do not consider that Judge Finnane erred in the manner he addressed these issues. He referred to each section in terms. He concluded that the evidence was important, effectively because Skaf's credibility was important. His Honour confined himself to the issue of fairness to Skaf, taking into account that evidence about his honesty generally affected the Crown and the other accused "in a way which perhaps is a little unusual". The judge observed that the evidence was prejudicial, correctly noting that the issue was unfair prejudice. He concluded that the probative value outweighed the question of unfair prejudice. 229 The use of the material was limited pursuant to s192. The driving offence, the Bidura Childrens' Court and Downing Centre Local Court matters were excluded. The reason appears to be that Skaf had admitted to having had a driving offence, with the result that there was no cause to rebut a (dishonest) denial. 230 We detect no appealable error in this analysis. This ground fails. We next address the related issue of the directions referable to this material. Directions about proper use of evidence about Skaf's character (Skaf Ground 1(a)) 231 Skaf submits that the judge erred in failing to direct the jury as to the proper use of the evidence of bad character that had been adduced. This ground was added during the hearing of the appeal. 232 Judge Finnane gave the following direction in the summing up (SU 52-53): You must take into account the fact that he has given that evidence. During the course of that evidence he said when being pressed in cross-examination that he had never been charged with anything. As it turned out he has been charged with two offences of dishonesty, stealing and another offence of malicious damage to property. What use can you make of that information? Well you can use it in a number of ways. The first thing is it does impinge or affect credibility. He says "I am someone to be believed" and if you believe him or if you have a reasonable doubt even that he might be telling the truth you would be bound to give him the benefit of that doubt. If a person is shown to be a thief you might think little reliance in general terms to be placed on his words. Thieves by the very definition are not honest, but, of course, it is a matter for you to assess. We do not know the circumstances of these convictions; one was for shoplifting and the other was stealing. He was fined in each matter by a Magistrate at a Local Court. You can take that into account when you are assessing credibility and so, does this, in my opinion affect his credibility? Does it make his evidence less believable? Does it mean I believe nothing of what he says? Before you come to the conclusion you believe nothing of what he says you should look at all the evidence and weigh up carefully his words. Counsel for Messrs Ghanem and Hajeid have both pressed upon you that you should reject him as a liar and believe nothing of what he says. If you believe nothing of what he says then his evidence that they were both there, of course, is something you would reject. That is why they invite you to take that course. However, you do not have to reject everything he says. You can look at what he says and you can accept some things and reject other things. You can look indeed at why he might make false claims. It has been said that he in his second record of interview did not mention Miss P…. Well, you look at the document, you consider for yourselves is it the case he did not mention her or is it a case where he said things to the police which on a reading of it would suggest that he had nothing whatever to do with her, thus was he creating a false picture deliberately to the police? He has said yes he did tell lies to the police and he did it because, to use his words, "He was in enough shit" and he did not want to mention somebody else. Well, ladies and gentlemen, that may be why he said it. That answer itself may cause you to think twice about accepting him as a credible witness, that answer itself. On the other hand, you may think that is why he said it. I'll still look at his evidence. He blurted out that he had no charges. Why did he say it? You might think because he was in a bit of a corner and he wanted to make himself look a bit better than perhaps he was looking at the time. 233 The judge's statement that the information could be used "in a number of ways" is unfortunate; as is his statement that the "first thing" was as regards Skaf's credibility. The jury were not instructed as to any way they might or might not use this evidence other than as touching Skaf's credibility. Nor were they instructed not to use it by engaging in propensity reasoning, ie proceeding from the supposition that if Skaf had committed crimes of dishonesty this increased the probability that he committed the offences charged (cf Eastman v The Queen (1997) 158 ALR 107 at 154). 234 This is the gravamen of the present ground of appeal. 235 As to the last point, we think it is highly unlikely that the jury would have engaged in such reasoning process. The nature of the earlier offences was completely different to the offences charged. 236 There is one matter relevant to this lately added ground of appeal to which the Court's attention was not drawn during submissions. We referred earlier to the unfortunate and improper submission concerning Skaf made by counsel representing Ghanem at trial. This was when she suggested to the jury in final address that Skaf had made the threatening gesture to Chami and that he had done so in connection with Chami having implicated Skaf's brother and his brother's friend Tayyab Sheikh. Counsel for Skaf (Mr Healey) was to give the next and third address to the jury. He sought and obtained the directions that were given at that stage in the trial and about which the appellants Ghanem and Hajeid complain in other grounds of their respective appeals. 237 In the submissions leading up to those directions that took place in the absence of the jury there was incidental discussion about the issue of lies (Tr p1279ff). The prosecutor indicated that he did not seek a direction that lies could be used as corroboration as to guilt. The Crown sought to rely upon Skaf's lies only as going to his credit. In this context there was the following exchange (Tr p1280-1): HIS HONOUR: That's what I would have thought. Certainly it goes to his credit. CROWN PROSECUTOR: That's all the Crown seeks. HIS HONOUR: It must go to his credit. HEALEY: It does and within the confines of what is said in the High Court. HIS HONOUR: It goes to that. It goes to whether they believe him. They have also got to consider that anybody who tells lies in the witness box – certainly it goes to that. The other thing is his criminal record. It seems to me again the first thing is he raises what appears to be a false proposition that he has never had any previous charges. So there is a lie told in the witness box. That may have been blurted out without thinking. If they came to the conclusion that he was deliberately stating that, then there is a lie. Secondly, his criminal record establishes he had been dealt with by the Court for offences by Bankstown Local Court and Lidcombe Children's Court for offences that could be regarded as ones of dishonesty. If a person is dishonest, then you are less likely to be able to believe what he says. HEALEY: Dishonesty can have another meaning. Dishonest in relation to taking people's property. HIS HONOUR: Would you believe the word of a thief? I would find it very difficult to believe what somebody, who was a thief, said about something because stealing is a fairly conscious act of dishonesty. Therefore, they can take that into account in deciding how they weigh up this credibility. I don't propose to go on to say it shows something about bad character because I think that gets into a very complicated area and I don't want to say anything about character, merely to say it is an issue of credit. HEALEY: I certainly would not embrace your Honour to say anything more than that. HIS HONOUR: That is all I would be saying. I am not going to go on and say for the purposes of discussing with you, I am raising what can flow. I am not going to say to them that any person who steals cannot be believed. All I would say is that they have to look at it, look at the question of whether his credit is affected by that. If it is, that may bear on whether they accept his explanations. If they do not accept his explanations as being true, then he is in a bit of hot water. HEALEY: If one deals with it on the issue that if they do establish it is a lie, one really has to look at whether that compounds him on the issue of guilt. HIS HONOUR: I think it is more credibility. He has given evidence. HEALEY: Surely the issues relating to his criminal history cannot have any bearing upon the issues of guilt in this trial. HIS HONOUR: They don't. They have an issue bearing on his credibility. They don't act to corroborate the evidence against him or make the case against him stronger. Rather, they damage his credibility. He comes before the Court as someone who on occasions steals and he come to Court as someone who on occasions tells lies, and the propositions put to him by the Crown and by the other accused counsel that he has lied in the witness box. There is a very live issue and in considering if they do not just have the answers, they have these two other pieces of evidence. HEALEY: The Crown at least had some material to work with. HIS HONOUR: You're quite right. 238 This passage reveals Skaf's counsel effectively agreeing with a proposed direction that the criminal history could be referred to on the basis that it went to his credit. 239 When this is coupled with the absence of any request for redirection of the jury along the lines that they should not use the evidence about Skaf's convictions to reason towards a finding of guilt in the proceedings before them, it is apparent that no miscarriage occurred. To have solemnly told the jury that convictions for offences of dishonesty did not establish a propensity for sexual assault would have been a most obvious proposition. The cross-examination of Skaf by Ghanem's counsel caused a miscarriage of justice (Skaf Ground 3) 240 This relates to the following portion of Ms McSpedden's cross-examination of Skaf (Tr p1112): Q. You see, early in this trial on a day when some legal argument was taking place, when the jury was not present, Mr Chami came into the Court room and you saw him, didn't you. A. Yes, I did. Q. When you saw him, as he was in the Court, in the body of the Court, walking into the Court --- A. Yeah. Q. -- you looked across to him from where you sat in the dock and you drew your finger under your chin in a gesture like I'm making now (as indicated), as if to indicate a cutting of a throat, didn't you? A. No, I don't recall that. Q. Do you not recall or do you say you didn't do it? A. No, I didn't do that. 241 Skaf submits that the questions should not have been put and that a miscarriage resulted from them. 242 In our view, the questions were relevant and this explains why they were not objected to at trial. It was being suggested on behalf of Ghanem that Skaf would go to extreme lengths to protect his brother Mohammed and his brother's friend Tayyab Sheikh. 243 Chami had been called on a voir dire by the Crown but was not later called to give evidence in the trial. The jury had no information as to what evidence he might have been going to give. It was put to Skaf by Ghanem's counsel that Chami had nominated to the police that Skaf's brother had been present in the park at the relevant time. Skaf had denied that he had been aware of any such allegation by Chami. The cross-examination set out above suggested that he had made the threatening gesture at Chami because of hostility towards him for having nominated his brother and/or to deter him from persisting in any intention to give such evidence to the jury. The full context of this material has been set out above. 244 It is submitted in the appeal that the cross-examiner's question was in effect an allegation of serious misconduct (of a criminal nature) extraneous to the events which were the subject of the trial. So much may be accepted, but it does not follow that the questions were irrelevant or improper. The questions went to more than Skaf's credit (cf s104(2)). They were part of an attempt to suggest that Skaf had wrongly implicated Ghanem in order to exculpate his brother and his brother's friend. We have already discussed that scenario. The particular defence argument was lacking in logic and (ultimately) evidence, but it was open to counsel to attempt to mount it. 245 The questions may also have been admissible in rebuttal of the good character that Skaf had raised shortly before (see Skaf Ground 1), although leave was required before cross-examination could proceed on this basis. 246 No objection was taken to these questions. 247 Skaf is correct to submit that the question asked by Ms McSpedden was in effect an allegation of serious misconduct. But it was an allegation that had a bearing on Skaf's credibility, a matter of vital concern to Ms McSpedden's client. There is no basis for thinking, nor is any submission raised, that Ms McSpedden had not satisfied the ethical restraints on counsel putting such a serious matter to a witness. 248 This ground fails. Error in refusing to discharge the jury as a result of Ghanem's counsel's address inviting the jury to conclude had made threatening gestures to Chami (Skaf ground 3a) 249 It was a different matter when Ms McSpedden addressed the jury and referred to her cross-examination of Skaf about the threatening gesture to Chami, when Skaf had denied making that gesture and when there was no other evidence on the topic. 250 We have already indicated our views as to the impropriety of this portion of counsel's address. And we have considered its impact on a fair trial for Ghanem and Hajeid. 251 The present ground complains about the Judge's refusal to discharge the jury in light of that address. The circumstances have been discussed above. 252 Judge Finnane did not err in concluding that there was no irremediable prejudice to Skaf. He noted that the submissions of Ghanem's counsel involved a logical fallacy, and said that he would tell the jury this "in fairly strong terms". The decision to refuse Skaf a discharge of the jury was well open to the trial judge. This ground fails. Verdicts on counts 2, 11 and 12 unreasonable (Ghanem Ground 4) 253 Ghanem submits that the verdicts of guilty in respect of counts 2, 11 and 12 are unreasonable and cannot be supported having regard to the evidence. These are the offences involving him and Ms P. 254 The submission proceeds as follows: Ms P did not identify Ghanem as one of the persons at the park. Her evidence of the sexual assault that was relied upon to support count 12 related to something that occurred behind the toilet block in which she and "Sammy" (Hajeid) were the only persons (immediately) present (Tr pp656, 620). It was dark at the time. Ms F gave no evidence as to the location within Northcote Park of the person referred to as the man with the ponytail, nor as to what that person was doing, at the time of the assaults relied upon to support counts 11 and 12. Mere presence at the park would be insufficient to support the conviction of the appellant (Osland v The Queen (1998) 197 CLR 316 at 342). Ms P said that she was slapped in the face by a man with a plait and that Bilal Skaf's sexual assault occurred after the slapping. But this was after the red car had left. Ms F said that the man she identified as Ghanem had his hair in a ponytail, not a plait. Ghanem received directed verdicts in relation to the counts involving those assaults that were the subjects of Counts 13 and 14 in the amended indictment. In these circumstances, the verdicts of guilty in relation to the counts concerning Ghanem's involvement in offences against Ms P were unreasonable and such that they cannot be supported having regard to the evidence. 255 It is necessary to look closely at the way that directed verdicts on the original indictment came about. The Crown case had closed and an application on behalf of Hajeid for a directed verdict had been rejected. Much of the next day was taken up with discussion in the absence of the jury about the nature of the Crown case in light of the evidence that had emerged (Tr p998ff). Judge Finnane was anxious to understand how the counts in the original indictment were to go to the jury. 256 In the original indictment, count 18 charged each of the three appellants with the assault upon Ms P when the long-haired man slapped her; and count 19 charged each with sexual assault in circumstances of aggravation when Skaf had forced oral sex with Ms P behind the toilet block. 257 During the discussion about the nature of the Crown case Ms McSpedden and Ms Langley asked for the withdrawal of counts 18 and 19 as regards their clients on the basis that the red car had departed the scene by that stage. The implicit reasoning was that the men who came in the red car left in it (Tr p1010-1011). Ms McSpedden submitted that Ms P's evidence was that the red car left prior to the man with the plait assaulting her, and that the sexual assault involving Adam (Skaf) occurred later. Ms Langley adopted this submission (Tr p1011) and she added that Ms P had not identified the man with the plaited hair as Ghanem. Ms Langley also submitted that there was no evidence that Ghanem was in the park after the red car had driven off. 258 Judge Finnane asked the prosecutor for his submissions in relation to counts 18 and 19. His Honour asked whether Ghanem and Hajeid could be responsible for further acts after they had left the park, in a context where the Crown case on accessorial liability was being put on the basis of presence ready to assist as distinct from pre-concerted plan to assault. The prosecutor said that he did not seek to change horses midstream or to argue a case against Ghanem and Hajeid that did not involve them arriving in the red car. The prosecutor indicated that he did not seek to persuade Finnane DCJ to leave old counts 18 and 19 to the jury on the basis of Ghanem and Hajeid being at the park at the time, adding that it was mere assumption that those two accused got in the red car and left (Tr p1014). Since, however the Crown would have to establish beyond reasonable doubt that the only available inference was that they did not leave in the red car, the Crown accepted that counts 18 and 19 would not be pressed on the basis that Ghanem and Hajeid were involved as the perpetrator of the face slapping (Ghanem), the aider and abettor thereof (Hajeid) or as persons aiding and abetting Skaf in his sexual assault of Ms P in company behind the toilet block. 259 In light of Doney v The Queen (1990) 171 CLR 207 these directed verdicts must be viewed as based upon a generous concession by the Crown. They cannot be treated as based upon the absence of evidence or even on a ruling to that effect, and then used as a springboard for a different attack. 260 Arrangements were made for directed verdicts on some of the charges in the original indictment (see Tr p1017ff). This included directed verdicts in favour of Ghanem and Hajeid as regards old counts 18 and 19 in light of the discussion set out above. Judge Finnane told the jury (Tr pp1021-1022): Now in relation to 18 and 19. Count 18 is a slapping across the face by someone who is described as man with the plaited hair. There has been evidence against Mr Ghanem that he was the man with the pony tail and he has been identified as the man with the pony tail. However Ms [P] did not identify him in any way whatsoever, Miss [F] did. This unknown person with a plait, on the evidence, could not have been Mr Ghanem. The reason I say that, members of the jury, is that there is evidence that the accused Hajeid, count number 16, [this became count 12 in the amended indictment] sexually assaulted Miss [P]. The evidence shows that immediately after that he departed from the park. At the time he was committing this assault others in the red car were yelling out to him to hurry up, the car motor was running, he hurried up, he finished, he went to the car, the car left. That was the red car that brought Messrs Ghanem and Hajeid to the park, so it left. On the evidence, then, at the time this slapping across the face occurred, Messrs Ghanem and Hajeid had left. Therefore they could not be party to an assault by someone who remained, they just weren't there. The case against Mr Skaf though remains because he remained, and the assault is clearly related to some sexual purpose. She was slapped across the fact by the man with the plait for the purpose of encouraging her to give oral sex, which then followed with the man Mr Skaf, known to her as Adam. So, in number 19 also, there is a clear case against Mr Skaf. She has identified him as having sexual intercourse with her without consent but at that point the red car had gone, so the other two on trial here were not there. Others were, but we don't know who they were. So they could not be guilty of those offences because they were not there. 261 The directed verdicts were pronounced by the jury and the indictment was later amended to its current form. 262 The jury were later told that the man with the plaited hair who slapped Ms P across the face was "not on trial here" (SU 19. See also SU 26, 48-9). 263 It is possible that the jury were mystified by this. We certainly are. Our reading of the evidence does not accord with what was put by trial counsel for Ghanem and Hajeid (and accepted by the judge) about Ghanem and Hajeid having left the park in the red car immediately after "Sammy's" sexual assault of Ms P. Ms P had not numbered or identified the men who left in the red car (see Tr pp562-3). She said that she had no idea how many people departed in the red car (Tr p619). There was evidence that both Ghanem and Hajeid lived within easy walking distance of the park (Ex C23), so it was wrong to assume readily that if they came in the red car from Chatswood to Greenacre, they would have got in it again after the events that took place. Ms P had also given evidence that she was tackled by someone after Adam had sexually assaulted her (Tr pp568-9, 659) and at a time when "most, all the guys start running towards the car" (Tr p568). She later agreed that the number could have been 4, 5 or 6 (Tr p659). 264 This said, the Crown submissions in this Court go some distance towards accepting Ghanem's starting position. The Crown has indicated that it became the Crown case at trial that the person who assaulted Ms P after the red car left was a different man to that seen in the red car by police, who was Ghanem. Whilst the police description was a little different to that given by Ms F, the jury were entitled to conclude that either the police officer was mistaken as to the plait or that Ghanem had loosened his hair by the time he came to assault Ms F (Crown Submissions §93). In oral submissions for the Crown on appeal, Dr Power SC adhered to the position that Ghanem and Hajeid left in the red car, with the consequence that Ms P was hit by another man - the ninth man, for want of a better description (CCA Tr p86). 265 In these circumstances, it is appropriate to look at the issue through this prism that remains common ground (much as we doubt it). Does it undermine the verdicts against Ghanem referable to Ms P that were based upon events that preceded the departure of the red car? 266 We think not. 267 It remained open to convict Ghanem on the counts dealing with matters before the red car departed having regard to: - the identification evidence involving Ms F (who identified Ghanem) - Not every witness drew a sharp distinction between a ponytail or a plait in describing the hair of the driver of the red car. Alternatively, there was a level of confusion, which the jury were required to address in deciding whether the case against Ghanem was proved beyond reasonable doubt. Cf Skaf's evidence that Ghanem's hair was plaited at Tr p1113 and 1195. Ms P's evidence was that the driver of the red car was "the one with the pony tail and with the plait" (Tr p636). - the telephone data as to Ghanem phoning Skaf on three occasions, picked up at the Chatswood Mall tower (2109 hrs), the Millers Point tower (2134 hrs) and the Annandale tower (2213 hrs). - the evidence of Sergeant Adams - the evidence of Ms F that the four men who ran at her, with one of them tackling her, were from the red car - Skaf's evidence placing Ghanem at the park, coupled with lack of any proven motive to falsely implicate his friend. 268 It is to be remembered that the issue confronting this Court is whether the verdicts were "unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act 1912, s6). Some of Ghanem's submissions read as though there is a question of inconsistent verdicts as between the directed verdict in his favour on counts 18 and 19 of the original indictment and the jury's verdicts of guilty on counts 2, 11 and 12. 269 The directed verdicts that in our view Ghanem and Hajeid were fortunate to obtain meant that counts 13 and 14 went to the jury against Skaf only. Yet count 13 involved Skaf being present when a long-haired male slapped Ms P on the face, and count 14 involved Skaf sexually assaulting Ms P in the presence of others, including a long-haired male. These offences occurred after the red car had left the scene. 270 Judge Finnane gave the following explanation to the jury (SU 48-50): We then come to count 13. I have touched on this already. This is a count against Mr Skaf only. On the evidence the red car left, on the evidence, as Sammy was having sex with [Ms P] the others in the group were yelling out for him to hurry up and get going, they had to go. And she could hear the red car's motor being revved up and he finished and that car left. So then a male described as the male with plaited hair was there with Mr Skaf. Now, Mr Skaf has given evidence that he had a sexual intercourse with [Ms P]. And this is the only count which alleges he directly had sexual intercourse with her. Her evidence was that she was at the back of the toilet block and Mr Skaf approached her and said, "Give me a head job". And she said, "No, I want to go home". Two other men then walked around behind the toilet block, one had light brown hair that was plaited at the back and she can't remember the other one. I have got to say this, members of the jury; whilst there is evidence that Mr Ghanem had a pony tail and, according to Mr Skaf in evidence, plaited his hair, this is not a count that concerns Mr Ghanem because on the evidence Mr Ghanem had left. So whoever this male with the plaited hair is, we do not know who he is, somebody else in the group. The fact that somebody in the group had a pony tail is not a reason, I suppose, why somebody else should not have a plait. It is the first appearance of this man with the plaited hair. She earlier described a man having a pony tail and she identified the photo of Mr Ghanem. There is a distinction between the two. I only make that plain as a matter of fairness to him. McSPEDDEN: Your Honour said there is evidence of identification by her of Mr Ghanem, with respect, that is not correct. HIS HONOUR: That is right, [Ms P] didn't identify him, [Ms F] did. So she didn't identify Mr Ghanem at all. But there appears to be a distinction between them and whoever this man was, we do not now know. But in any event he turned up about the time Mr Skaf turned up. Mr Skaf, according to [Ms P] pushed her on the ground to her knees, pushed her head towards his penis, held her head there and made her give him a head job. But before that had happened the man with the plaited hair who turned up, this other unidentified male, said, "If you don't do it worse things had happen to you" , which [Ms P] took to mean if she didn't do it with Mr Skaf worse things would happen, and he slapped her across the face. Then she was pushed to the ground and then, according to the evidence, Mr Skaf pushed her head towards his penis and made her give him a head job. Now in relation to count 13, the evidence against Mr Skaf is that of assault, again on this basis of aiding and abetting. You can see most clearly in this count how that fits in. One participant turns up and demands sex, another man comes along and hits her to make her cooperate. Well, the person for whose benefit the slap and threat is made is aiding and abetting the other one. He is there obviously cooperating with him. They are part of a joint venture, you could say. So Mr Skaf is said to be responsible because this other man assaulted her for the purpose of inducing her to have non-consensual sex with Mr Skaf. 271 Ghanem submits that the trial judge was suggesting that the Crown case involved there being two persons with pony tails at the park, one with a plaited pony tail and one without; and that the first appearance of the man with the plaited pony tail was at the time of the assaults on Ms P after the departure of the red car. This is said to have mistaken the evidence. 272 This submission is the springboard for the pale of uncertainty that Ghanem seeks to draw over the evidence that had placed Ghanem squarely in the frame as regards the earlier assaults in the park. The directed verdicts in favour of Ghanem conclude that he was not involved in the late assaults on Ms P. It does not follow that the judge erred in not drawing the attention of the jury to the fact that Ms F may have been mistaken as to whether or not the person who assaulted her had plaited hair. 273 No such directions were sought at trial and we conclude that no miscarriage ensued on this account (see also Ghanem Ground 2 above). Nor are we prepared to allow the tenuous logic of these submissions to render unsafe the verdicts of guilty against Ghanem involving Ms F and Ms P. 274 This ground fails. Verdicts unreasonable (Hajeid Grounds 8(b) and(c)) 275 Hajeid accepts that there was evidence that he was present at the park. That includes the evidence of the three phone calls from Skaf to Hajeid that were picked up by the Annandale tower, evidence which supported the case that Hajeid was in the red car. 276 However, Hajeid submits that it was unreasonable to conclude beyond reasonable doubt that he was an accessory to the offences against Ms F (Counts 1, 4-9) (Ground 8(b)). 277 The case on Hajeid's accessorial liability as regards these counts went to the jury on the basis that he was one of the four males who ran over from the red car and were involved in tackling Ms F (see eg SU 22). The reasonableness of the conviction must be addressed through this prism, and not by an alternative hypothesis suggested by the Crown in its submissions on the appeal. There is in fact sufficient evidence to sustain the convictions on the way the case was fought at trial. 278 Hajeid's conviction on each of these offences depended upon establishing that he intentionally assisted or encouraged the principal offender(s) to commit the offences. Mere presence was insufficient. 279 These counts went to the jury against Hajeid on the basis of a Crown case that he was present, knowing of the crimes being committed by the principal offender(s) and intending to assist if required. 280 The nub of this part of Hajeid's appeal is that it was not reasonably open for the jury to conclude that he was one of the four men that ran over from the red car with one of them tackling Ms F to the ground. Hajeid points out in written submissions (§52) that, on the Crown case eight males came to the park, four in the van and four in the car. The Crown could not prove that all eight were party to the sexual assaults. If Hajeid was not proved to have been one of the four men who ran at Ms F from the red car then (assuming he was properly identified as being at the park) it was reasonably possible that he was the eighth man present at the park but not criminally involved in the offences against Ms F. 281 Hajeid argues that very limited weight should be accorded to Ms F's opinion about where the four males who tackled her came from. The lighting conditions were poor, there was shrubbery about the pergola area, Ms F testified she could see the car "but from a distance" (Tr p446). The van (next to which the car parked) was between 100 –110 metres from the pergola area. Ms F would have been distracted in that she was engaged in oral sex with "Adam" when she heard the vehicle arrive. 282 In our view, a fair reading of Ms F's evidence was that the men had run from the car. She said so in unequivocal terms (Tr p325). She was not prepared to state that the car was red, but other evidence filled this gap. 283 Ms F's evidence was that Adam said "When the other car comes here they are just going to harass you, they won't leave you alone until you give them what they want… if you don't do it they will probably bash you for not doing anything" (Tr p323). She then saw another car pull up behind the van. She heard male voices shouting and yelling in an excited manner. At that stage Adam told her to hurry up and give him the head job before they came (Tr p324). She said that she submitted "because the other car had come and the males, the other males from the other car, the red car, were coming towards us and he told me if I get it over and done with then nobody else would ask me for anything". The next thing that happened was that "the males from the red car came closer to us and I stopped… I stood up and I walked in a direction facing the road where the vehicles were parked" (Tr p325). There was an objection as to Ms F's use of the expression "red" when referring to the car and his Honour suggested to the prosecutor that this ought to be clarified. 284 Before that was done the Crown prosecutor elicited the following evidence (Tr p325): Q. What (if anything) are you able to say about your observations, what you saw, of the car to which you're now referring? A. Four males from a vehicle came running towards me. Q. And as those four males came running towards you, what next happened after that? A. One of them tackled me to the ground. 285 In our view, this was evidence that the jury were entitled to accept, establishing that Hajeid was one of the four males who emerged from the car which other evidence proved to be the red car that brought Hajeid to the park. 286 There was also evidence that Ms F had a clear line of sight because she said that she had come out from behind the bushes and she could see her friend Ms P (Tr p326). 287 Hajeid also submits that it was unreasonable to conclude beyond reasonable doubt that he knew Ms F was being detained and that she was not consenting to oral sexual intercourse with him. On this alternative basis he challenges his convictions (Ground 8(c)). 288 This ground raises the question of Hajeid's knowledge that Ms P was not consenting at the time of the offences charged in Counts 2, 11 and 12. The trial judge directed the jury in terms of "knowledge" of lack of consent and he did not put the alternative of recklessness. This direction was favourable to Hajeid. It also reflects the unreality of the present submission. 289 The argument being advanced is that it was not open for the jury to conclude beyond reasonable doubt that Hajeid knew that Ms P was not consenting in the incidents involving her on which he was convicted, ie Counts 2 (detain for advantage while at the park), 11 (assault) and 12 (sexual assault). 290 Hajeid points to the absence of any threats on his part, the minimal amount of force used, the fact that Ms P was allowed to draw free when he first pulled her towards the back of the toilet block, the reassurances he gave about Ms F being "all right" and the assistance he later gave her in finding the beads from her broken necklace. 291 In our view, these matters do not make the conviction unreasonable. The jury were clearly entitled to conclude that Hajeid had the necessary mens rea. Ms P was alone in a dark park miles away from familiar surroundings. Prior to the assaults referable to Counts 11 and 12, she had been surrounded by six males chanting "give me a head job". One of these men was Hajeid. He grabbed her arm and pulled her behind the toilet block. He demanded sex and she said "No". He offered to take her home after she gave him a head job. She tried to walk away, but he forced her by pushing her on the ground and forcing her head onto him (Tr pp559-562). 292 It was well open to the jury to conclude that the appellant Hajeid knew that Ms P was not consenting in relation to these counts. 293 These grounds should be rejected. Wrongful admission of evidence of expert opinion that medical examination of complainants was "consistent with" the history given by them (Skaf Ground 2) 294 Each complainant was examined by Dr Humphrey in the early hours of 11 August 2000. The doctor said that "no abnormal findings" were revealed on physical examination. 295 As to Ms P the doctor gave the following evidence (Tr p774): Q. And in relation to the finding that you did make an examination and the history that you were given by this young lady, [Ms P], did you form the view that based wholly or substantially on the above knowledge and your training and expertise that the finding on your examination are (sic) consistent with the history obtained by you? A. That's correct, yes. 296 Similar evidence was given in relation to Ms F (Tr p776). 297 This evidence offended s102 of the Evidence Act and had the effect of bolstering the complainant's credibility by implying that an expert opinion in some way supported her evidence. In fact, the doctor's evidence was entirely neutral. The inadmissibility of such evidence was established in R v RTB [2002] NSWCCA 104. See also R v Dann [2000] NSWCCA 185. 298 The evidence should not have been led. If there is a Crown practice of leading such evidence whether or not the defence indicates it takes no point about the matter, it should stop. 299 This said, we would not uphold this ground of appeal. No objection was taken and, in the circumstances of this case, no miscarriage could have occurred. The nature of the sexual intercourse involved would not have led the jury to place any weight on this medical evidence, which was not recounted in the summing up. Rule 4 should be applied. Disposition 300 Each appeal against conviction should be dismissed. ********** Last Modified: 04/04/2008 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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