New South Wales Court of Criminal Appeal CITATION : R v RAZZAK [2004] NSWCCA 62 HEARING DATE(S) : 18 February 2004 JUDGMENT DATE : 19 March 2004 JUDGMENT OF : Levine J at 1; O'Keefe J at 87; Bell J at 88 DECISION : 1. Appeal against conviction dismissed.; 2. Leave to appeal against sentence granted.; 3. Appeal against sentence dismissed. CATCHWORDS : Resemblance evidence - identification - other circumstantial evidence - video of accused said to be "re-enactment" of offence LEGISLATION CITED : Evidence Act 1995 (NSW) ss113-116; 137. Alexander v The Queen (1980-1981) 145 CLR 395 Azzopardi v The Queen (2001) 205 CLR 50 Domican v The Queen (1991-1992) 173 CLR 555 CASES CITED : Festa v The Queen (2001) 208 CLR 593 Mundarra Doolan Smith v The Queen (2001) 206 CLR 650 Pearce v The Queen (1998) 194 CLR 610 Pitkin v The Queen (1995) 69 ALJR 612 R v Coxon (2002) SASC 165 REGINA PARTIES : v BILAL RAZZAK FILE NUMBER(S) : CCA 60169 of 2003 P Boulten (Apellant) COUNSEL : E Wilkins (Crown) Murphy's Lawyers (Appellant) SOLICITORS : S E O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0377 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : - 22 - [2004] NSWCCA 62 IN THE COURT OF CRIMINAL APPEAL 60169 of 2003 LEVINE J O'KEEFE J BELL J FRIDAY 19 MARCH 2004 REGINA v BILAL RAZZAK Judgment 1 LEVINE J: The appellant stood trial from 10 –17 September 2002 before her Honour Judge Hock and a jury charged that he did maliciously wound Katavake Valu with intent to do grievous bodily harm and, in the alternative, that he did maliciously wound Katavake Valu. He was found guilty of the former offence on 17 September 2002. 2 On 7 February 2003 the appellant was sentenced in relation to a firearm offence to 2½ years imprisonment with a non-parole period of 15 months. The head sentence and non-parole period were to commence on 21 August 2002. In respect of the offence of maliciously wound with intent to do grievous bodily harm, Judge Hock sentenced the appellant to imprisonment for 7 years with a non-parole period of 4 years to be served partially concurrently and partially consecutively with the firearm offence sentence. In relation to the maliciously wound matter, the head sentence and non-parole period were to commence on 21 August 2003, the non-parole period expiring on 20 August 2007. 3 I sketch the factual background in this way: on 20 January 2001 Mr Katavake Valu and a group of four or five companions were walking along Pirrama Road, Darling Harbour, having attended the Baccardi Festival. As they walked along the footpath a group of people approached them. One man from this approaching group "shoulder charged" one of Mr Valu's companions. Mr Valu stopped and walked back to raise the matter with the person who had "shoulder charged". At the point when he was speaking to that person the offender stepped forward from Mr Valu's right and stabbed him in the right side of the abdomen. The offender and his group departed from the scene in the direction of Star City. Mr Valu, the victim, went into a convenience store nearby to get assistance. He then attended the police station in Sussex Street, an ambulance was called, he underwent surgery at St Vincent's Hospital and he was discharged 4 days later. 4 The appellant was arrested about 4 months later on 17 May 2001. 5 In the evidence at trial Mr Valu said that he had consumed 3 bottles of Heineken Beer at home after work after 3pm, and at about 9pm with about 5 friends had gone to the Baccardi Festival and to a bar called "The Cave" where he consumed another 5 bottles. The party left "The Cave" at about 1.30am to 1.45am in the morning of 20 January and were walking along the right hand side of the footpath on Pirrama Road. He said, "a fairly big bloke" from that group "shoulder charged" one member of his group, namely Damien. He said in evidence that that person was wearing "a white singlet, khaki pants and with a hat on". He said that he stopped that person and asked why he did it. He turned and walked away from him but noticed that the "shoulder charger" was still standing there and he walked back towards him and asked a second time "is there any problem" and he was stabbed. 6 The victim gave evidence that he was stabbed by a man wearing dark coloured track pants with a blue top and the inside of the top was yellow, explaining this as "he's wearing a jacket on and I think it was yellow inside". The jacket was unzipped with long blue sleeves. The person who stabbed him had pretty long facial hairs - a beard, but not overgrown. Mr Valu gave further evidence that his assailant had "a blue and yellow top on" and "he could not remember which part was a yellow and the blue was". He could not recall the sort of sleeves the clothing had. He said the assailant had "blonde streak" hair, otherwise it was dark brown, he was a man of middle eastern appearance and had "white olive" coloured skin and a "pretty square, thinnish face". He did not see the knife used. He said the assailant's right hand connected with his right abdomen and the assailant was "standing on the side and he did not really get a good picture of him at all". He had heard his friend Daniel yell out that he had a knife and had stepped back and the man yelled out to him "come on" and then ran off in the direction of "The Cave" followed by the rest of the people in his group. 7 The victim and his friend Hack went to the convenience store about 10 metres from where the stabbing took place. The matter was reported to the City of Sydney police station and the police took a description from him of the people who were involved in the incident and he was taken to St Vincent's Hospital. He made a statement to the police the day after and another statement on 8 February after he was shown an identification video with a number of faces of male persons. Mr Valu identified the person depicted in photograph number 7 as the person who stabbed him commenting that he was not 100% sure that it was him, "the bloke that stabbed me that night had blonde streak in his hair". Looking at it at the time of viewing the photograph, the appearance of the person was "the same sort of face, just the hair's different, yeah, just the dyed hair". He said that the hair of the stabber was "more perm in the hair, more gelled", and that there were dyed blonde streaks in the front of his hair though he did describe the facial hair in the photograph as being pretty similar to that of the assailant who he said had a bit on the moustache and a little goatee on his face. Leaving aside the hair, there were no differences between the face in photograph 7 and the man who stabbed him. He said the man who stabbed him had sunglasses with brown lenses on his forehead. 8 Mr Daniel Fatalaiga accompanied the victim to the festival and afterwards and he had consumed 8 VB stubbies at the Festival and 6 schooners at the casino. He gave evidence that upon walking along Pirrama Road "a guy in a tight white Bonds shirt" bumped the victim but later gave evidence that he had not seen that bumping at all. He then said that a man in a "bright yellow T-shirt" stabbed Mr Valu in the stomach area. He said the knife he saw looked like a pocket knife; the assailant "had a blonde fringe", the rest of the hair was black and shaved around the sides; the appearance of the assailant was "middle eastern"; he told the police the assailant had no facial hair. He had heard the assailant say "come on" and saw him running away a few seconds later; he could see nothing on the man's head. 9 Mr Hack Vingkhiem had consumed 6 or 7 schooners of beer at the Festival and another 4 or 5 beers at the casino. He saw a person who was wearing "trackies suit bottom, running shoes and a white singlet" from another group talking to his friends. He said he could not hear what they said as he was about 10 metres away. He went to the convenience store and after he came out he saw Daniel and Mr Valu walk back towards him. Mr Valu showed him the wound on his body. At that time another group of guys was running away. 10 Detective Sergent Morridge gave evidence that at about 3.50am on the morning of 20 January 2001 he attended the retail arcade at the casino. At 4am he saw the appellant and 3 people who were with him outside the "Score Bar". He told the appellant that he was investigating a stabbing which took place at 2am and that the appellant told him "We just got here. The car is parked in the car park with a ticket on it. I didn't stab anyone". The appellant was wearing a yellow and blue shirt with "0 5" on the front and back and beige pants. One of the people the appellant was with was wearing a white singlet, one was wearing a white shirt and beige shorts, the other was wearing a white shirt, blue track [pants] and a blue cap. All were searched and nothing was found. 11 On 21 January 2001 the officer said that he had obtained 4 still photographs depicting a group of persons at various positions on Pyrmont Bridge at various times from the security camera. These became exhibit D. He also viewed surveillance video footage showing a group of persons walking quickly west in Pirrama Road outside "The Cave" at 2.07am. This was said to be a short distance from where Mr Valu was stabbed at 2.05am. At 2.08am it shows the group walking past the loading dock of the casino and at 3.20am it shows the appellant and his friends at the casino retail arcade. That material became exhibit L. The Crown case was that what was captured on the video inside the casino retail arcade showed the applicant re-enacting what he did to Mr Valu in the early hours of 20 January 2001. On a later date, namely 5 February 2001, the appellant had said to the officer "Yeah. I remember you talking to us about a stabbing. Why would I go back to the scene if I stabbed someone?" The appellant declined to participate in an identification parade after he had obtained legal advice. 12 The detective gave evidence of Mr Valu watching the video containing the images of male persons (a tape which is entitled "Suspect video"). In relation to photograph number 7 (of the appellant) the victim said that he was not 100% sure. The officer gave evidence that Mr Fatalaiga was the other person who had also viewed the video but did not recognise any person there. He gave evidence that Mr Fatalaiga and Mr Vingkhiem had had a few drinks that night but that they were quite fit to provide statements to the police. In cross-examination his evidence in this regard was put to him as being a lie to the jury, which the officer denied. 13 It is important to note at this point that at pages 3-4 of the evidence in the trial on 12 September 2002 whilst re-reading his statement in the usual way in relation to what became exhibit L, the officer said "At 3.20am it shows the accused and his friends at the casino retail arcade. A copy of this footage was prepared by the surveillance unit and was marked 'Police Investigation 20/01/01'". It was not in issue that the accused was in exhibit L (the so-called "re-enactment" video). 14 There was one issue of substance in the trial and that was the identity of Mr Valu's assailant. 15 Prior to the empanelling of the jury her Honour conducted a voir dire as a consequence of which she ruled admissible the evidence of Mr Valu who was cross-examined in the voir dire and the evidence in exhibit L. 16 The appellant did not give evidence at the trial and the "case" made for him, not surprisingly, was a powerful attack on the weaknesses in the Crown case on the issue of identification. 17 In respect of conviction, 9 grounds of appeal were notified: 1. The learned trial judge erred in failing to exclude that part of the evidence of Mr Valu which was described as "evidence of identification". 2. The learned trial judge erred in failing to exclude the evidence of Detective Morridge of "identification" and of the video recordings admitted as exhibits K and L in the trial. 3. The learned trial judge erred in her directions to the jury as to the "identification evidence" in the trial. 4. The learned trial judge erred in failing to discharge the jury following the Crown's opening and closing addresses to the jury. 5. The directions of the learned trial judge on silence were inadequate and erroneous. 6. The learned trial judge erred in failing to give the jury a "Jones v Dunkel" direction in relation to the Crown's failure to call material witnesses who could give relevant information in the case. 7. The directions given in respect of the circumstantial evidence were insufficient. 8. The learned trial judge erred in failing to give any directions as to evidence relied on as admission by the Crown. 9. The verdict was unreasonable. Grounds 1 and 2 (wrongful admission of evidence after voir dire) 18 Her Honour was concerned with the admissibility of 2 pieces of evidence. The first was the evidence of events which occurred on 8 February 2001 when Mr Valu, the victim, selected a photograph from a video containing 16 photographs which he viewed at Central Police Station. The photograph was a photograph of the accused. 19 The evidence, by reference to, at first, the statement made by the victim and oral evidence, fell well short of what is called "positive identification" and would be described as "evidence of resemblance": see Evidence Act 1995 Part 3.9, ss113-116 and dictionary definition of "identification evidence". It was conceded that the requirements of s114 Evidence Act were complied with, and that the issue for her Honour was s137. 20 Her Honour found the evidence clearly "relevant" for the purposes of s55, and of substantial probative value "when viewed in the context of other evidence capable of supporting the reliability of the victim's identification". Her Honour found that there was no danger of unfair prejudice in the relevant sense. 21 The extract cited reflects intensive submissions both before her Honour on the voir dire, before her Honour during the course of the trial, and before this Court. The appellant says that it reflects error insofar as her Honour was considering the probative value of a weak identification in the context of its capacity to be supported or bolstered by other evidence. In other words, the quality of the identification material (or the lack of it) could be bolstered by other material which, in the end, turned out to be of a circumstantial nature. 22 I am of the view that whilst the language used by her Honour might indicate that an improper approach was adopted, it did not, however, infect her ruling. The evidence was nonetheless admissible. What I will describe as "weak resemblance evidence" is not thereby inadmissible. There can be dangers attendant upon such evidence – hence the need for directions, but any weakness, particularly when there is other evidence, is not sufficient to exclude the evidence: Pitkin v The Queen (1995) 69 ALJR 612; Festa v The Queen (2001) 208 CLR 593, see McHugh J at [51]. 23 The second piece of evidence the subject of the voir dire is what became exhibit L in the trial, being video images depicting the accused "demonstrating an event which the Crown asserts is a replication of the incident in which the victim was stabbed". There was no issue that it was the accused in that videotape. 24 The tape was tendered by the Crown as circumstantial evidence. It was filmed some two hours after the approximate time of the incident. It, together with another videotape, exhibit K, and still photographs, exhibit D, constituted circumstantial evidence of a kind which if accepted by the jury could at the very least place the accused in the vicinity of the location of the incident. 25 It was not the Crown's position to use the other material to "bolster" the flawed "resemblance evidence" of Mr Valu. As a matter of logic that simply could not occur. Mr Valu's flawed "resemblance evidence" would always have that quality. It was conceded by the Crown, consistently, for example, with Pitkin's case, that if the only evidence available to the Crown for the prosecution of this appellant was the flawed "resemblance evidence" of Mr Valu, the prosecution must fail. 26 For myself, a greater degree of clarity attends the course both of the prosecution and the appeal, if the confusion in relation to "bolstering of evidence" can be eliminated. For the reasons stated above, poor quality identification evidence of itself cannot be improved by any other evidence. It stands or falls according to its own quality. What other evidence can do is bolster the Crown case, which includes the flawed evidence that the accused was the person who committed the offence of malicious wounding (that being the only issue here). 27 The appellant sought to rely upon the decision of the High Court in Domican v The Queen (1991-1992) 173 CLR 555 in support of the proposition, persistently advanced, that other evidence cannot be used to bolster flawed identification evidence to the point where the jury would find that despite the flaws in Mr Valu's identification, Mr Valu in fact was correct. Domican, particularly in the well-known passages at 565-566, is concerned with the "directions" to be given to the jury solely in relation to identification evidence to the exclusion of any other evidence in the trial. The fundamental proposition for which Domican is authority cannot be converted by using the notion of "the exclusion of other evidence" to say that such other evidence cannot bolster the Crown case. Domican does not purport to propound any such proposition. 28 It is as much a matter of common sense, if not logic, as it is a matter of principle, to assert that other evidence, other circumstantial evidence, touching upon the issue of identification, cannot bolster flawed evidence of identification to the point where the flaws are eliminated and a finding can be made that that flawed identification is correct. For a most useful analysis of these propositions see R v Coxon (2002) SASC 165 per Prior J especially at para [55]. On any reasonable view it cannot be held that her Honour made any error at all in her judgment of 11 September 2002 in admitting relevant evidence constituted by, to put it starkly, flawed resemblance evidence from Mr Valu in relation to the video photograph array, in respect of which the principles in Alexander v The Queen (1980-1981) 145 CLR 395 and Pitkin could be relevant, and circumstantial evidence constituted by the video of the appellant. 29 Before turning to the other grounds it is clear that in what became exhibit L there was no issue that it was the accused depicted and filmed. No issue arose in relation to the application of the decision of the High Court in Mundarra Doolan Smith v The Queen (2001) 206 CLR 650. The investigating police officer simply gave evidence that the accused was shown in that exhibit and the case was conducted on that basis. 30 Grounds 1 and 2 fail. 31 The real issue is that which is reflected in other grounds of appeal as to the use that was made of the evidence and the directions in relation to it given by her Honour to the jury. Ground 3: the learned trial judge erred in her directions to the jury as to the "identification evidence" in the trial 32 There was a three-pronged attack made on her Honour's directions to the jury in this regard. Her Honour commenced that part of her summing-up with the following words: "Now, coming to the live issue in this trial, was it the accused who wounded the victim, Mr Valu, on 20 January 2001? In this respect part of the Crown case relies, as you would know, on the identification evidence of Mr Valu, the victim of the crime". (emphasis added) Her Honour used such expressions as "he identified the accused", "the identification evidence" and "the evidence of identification". Objection first was taken to the use of such words as "identification evidence" in relation to Mr Valu when quite rightly can it be said that his evidence did not amount to any such positive identification evidence at all. All it amounted to was "resemblance" evidence within the dictionary definition. However, the use of the expression "identification evidence" is not strictly incorrect by reason of the provisions of the Evidence Act dictionary definition. The flaw in the use of the phrase is that it tends to give additional quality to the "resemblance testimony" . This I understand to be the principal basis of objecting to it. Standing alone there may be arguable merit, but in the end I am not convinced by it. It is to be borne in mind that having introduced the phrase "identification evidence" her Honour gives standard directions as to reliability and caution. Further, in the course of her summing-up she not merely gives standard directions which in my view are without error but draws the jury's attention, as is required, to specific matters. 33 Thus far, as I have said, her Honour's summing-up on the issue of "identification" is impeccable. Complaint however is made, secondly, in this context, that her Honour did not alert the jury as to the dangers associated with photographic identification (Alexander; Pitkin, supra). In the scheme of things, the accused/appellant having declined, as is his right, to participate in an identification parade, I accept the submission of the Crown that the directions as to photographs would have had the potential to act contrary to the interests of an accused, leading inevitably to a jury question of "well, why was not the accused subjected to an identification parade?" and, of course, the inevitable path of speculation to which that leads. 34 I am not persuaded that in the context of an otherwise thorough series of directions on identification evidence, generally and on the peculiar aspects of this particular case, was there error in not referring specifically to the photographic identification process. 35 Having gone through this process her Honour went on to say this: "Now the Crown says the reliability of the identification evidence of Mr Valu is supported by other evidence in the case. That is, the Crown says there is circumstantial evidence which supports the correctness of Mr Valu's identification of the accused as the person who stabbed him. In this respect the Crown relies on the outside video footage of the Pyrmont Bridge area, the short piece of video outside Star City, the loading dock area…and the lengthier…clearer video footage of the inside of Star City Video, what the Crown called the re-enactment. Now that part of the Crown case is circumstantial, that is, a combination of circumstances the Crown says support the correctness of the identification evidence of Mr Valu ". (emphasis added) 36 This founds the third and real basis of attack under this ground. Here her Honour in my view was in error. The phrase "the correctness of the identification evidence of Mr Valu" has within it the implication that he had, in a positive way, identified the accused. There was no basis for any such implication. Further, as I have remarked earlier in these reasons, the material tendered by way of videotape and still photographs could only be tendered as circumstantial evidence which, with the flawed resemblance evidence could "bolster the Crown case" on the issue, and it being the only issue, that it was the accused who stabbed the victim. It cannot bolster the victim's evidence touching upon the identity of the person who stabbed him. It goes to being part of the Crown case as a whole. 37 I shall return to this ground in due course. Ground 7: the directions given in respect of the circumstantial evidence were insufficient 38 I next regard it as appropriate to deal with ground 7, to the effect that the directions in respect of the circumstantial evidence were insufficient. As the Crown rightly points out, it is unclear from the appellant's submissions generally what reasonable explanation the trial judge ought to have left to the jury but did not leave. The appellant's case at trial was that he did not stab the victim and that the victim had made a mistaken identification. Certainly these were dealt with in detail by the learned trial judge. 39 I would remark that one possible alternative hypothesis had been advanced by defence counsel during the course of the trial in relation to exhibit L. In the context that the accused's position was never otherwise than that he was at the least in the general vicinity of where the incident took place, this hypothesis was that what he was showing in exhibit L could have been what he had seen or had been told. 40 Assuming that the jury would not have rejected this alternative hypothesis as absurd, the appellant was still confronted with a reasonable basis for the elimination of any alternative hypothesis, namely, that the accused, admittedly the person in exhibit L, was wearing a "top" containing two colours referred to by the victim. 41 What was made perfectly clear (see summing-up at 29) was that there was a real issue as to what exhibit L disclosed. No further direction was sought and I would refuse leave to argue ground 7. Ground 4: the learned trial judge erred in her directions to the jury as to the "identification evidence" in the trial 42 Ground 4 relates to the failure in the trial judge to discharge the jury following the Crown's opening and closing addresses to the jury. In relation to ground 4 it is to be noted that there was no application for a discharge at the end of the address by the Crown Prosecutor at the close of the case. 43 Further, what the Crown Prosecutor said in the closing address as to what the jury may understand as depicted in exhibit L, was the subject matter of the reference at page 29 of the summing-up (extracted below at para [54]). As a consequence I cannot see any substance in this ground at all. More is said generally on this in relation to ground 8, below. 44 As to the application made at the close of the Crown Prosecutor's opening address (see page 54 and following, 11 September 2002), the Crown had, in its opening, put in relation to exhibit L what in effect it put in the closing address. That position taken by the Crown was the real nub of the objection taken at the close of the Crown's opening address. It formed the basis for the application that was then made for the discharge of the jury. In response to this principal matter the Crown asserted an entitlement to put, by way of submission, anything that reasonably can be suggested as being depicted in the video. The accused's complaints to her Honour at trial were unpersuasive and, at the time, rightly so, for looking at the whole of the trial I can find no foundation for the position taken by trial counsel for the accused. Her Honour did indicate that the application was rejected, that she would sum up to the jury and give appropriate directions. As I have already indicated it is the nature of those directions that constitutes the crux of this appeal. Ground 5: the directions as to the right to silence 45 Counsel for the appellant, in circumstances where on its face her Honour appears to have given directions in accordance with standard form following the decision in Azzopardi v The Queen ((2001) 205 CLR 50) seems, whilst not abandoning the ground, not to "make bones about it". 46 I found the extent of the directions curiously detailed and in some respects potentially confusing to the jury in relation to the absence of content to the subject matter of explanation which the accused, as the jury was told, elected not to give. Be that as it may, the outcome of this appeal is not dependent upon it, and in the end I am persuaded that they created no false position in relation to the accused vis-à-vis the onus of proof or the right to silence. Ground 6: the failure to give a Jones v Dunkel direction 47 This ground, in my respectful view, raises an issue in respect of which rule 4 applies. 48 The ground is not unconnected, so it was said in written submissions, with ground 5 (relating to the right to silence). It is said, in fact, to compound what is complained about in ground 5. 49 In the course of his closing address the Crown Prosecutor in dealing with exhibit L refers to the man in the white singlet "having been there and seen it" and thus not reacting to what is said to be the re-enactment by the person admitted to be the accused. This had been the subject of the Crown's opening and protest by defence counsel but the matter was deferred and no specific direction was sought. 50 There was no forensic evidence in this trial. As counsel for the accused said in the course of trial, no list of the names of the people in the videotape had been provided by the police to the defence. Be that as it may, there is no evidence of any request by the defence to the Crown to call any person in the Crown case. The situation was that the Crown had no statements from any witnesses indicating that their evidence could assist the defence case. The only persons pointed to by the appellant are potential co-offenders or offenders. There appears to me to be no obligation upon the Crown to call such persons as witnesses. Furthermore, there had been no positive identification of any persons as eyewitnesses other than those called by the Crown. Furthermore, as the Crown submits, a Jones v Dunkel direction was unlikely to have operated fairly in favour of the appellant/accused. Any jury given such direction in relation to the man in the white singlet would be likely to conclude that the reason for his lack of assistance would be an unwillingness to incriminate himself in connection with any aspect of the offence at all. 51 I would refuse leave to argue this ground. Ground 8: the learned trial judge erred in failing to give any directions as to the evidence relied on as admissions by the Crown 52 It was contended that there were no directions to the jury as to how they could and, more importantly, could not use the evidence of the video recordings in their deliberations. The jury were at no stage warned that they should not engage in "coincidence reasoning". It was submitted that her Honour was in error in failing to direct the jury in relation to admissions as to conduct. 53 In his closing address the Crown said: "I mentioned this in my opening to you, and again I invite you to look at this, and look at it on a number of occasions. This is a piece of the footage that occurs around when the clock hits 3.34 and some seconds. There's persons coming and going in this group but at one stage, and it is a matter for you entirely what you make of the evidence, you see Mr Razzak talking to people, he appears to be the man holding the floor at the time, talking to a couple of people and he's telling a story, he's animated and he's gesticulating, you can see his mouth moving, and he seems to be the focus of attention you might think on the evidence. And then he engages in what the Crown says is a pantomime, a simulation, a replication of what happened outside in Pirrama Road an hour and twenty minutes or so earlier. Watch it, and watch it carefully, and you will think he is replicating a shoulder charge, you might think when you look at it. And there is replication of some sort of motion of the hands, the remember the "come on, come on", at some stage there was an incitement to go on with it. And at one stage you see the accused and what he's got – if you look at the video, the Crown suggests what you will see, and it's a matter for you, a clenched fist, not a punch but it's a sideways swinging motion delivered with some force. That occurs on the clock on the video, exhibit L, reads 3.34 and 35 to 40 seconds, in that time span. He simulates this motion, and it is a matter for you what you make of it, and then stands back, and one of the group steps forward and appears to shake his hand somewhat enthusiastically in a, what the Crown would suggest, is a congratulatory sort of manner. And the Crown says that's significant for one reason. If you'd been to see Tony Mundine fight and the next day in the pub you're telling your mates about the fight and say 'he threw this lovely right punch' you're simply simulating what you saw the person on television [do]. Someone's only got to walk up and say – shake your hand, that was a great punch. You're not – you're just demonstrating what someone else did. Yet if you were in some sort of tennis tournament and you said, 'did you see match point, and I threw it up and I aced him'. 'Yes I saw that mate, terrific'. You're demonstrating what you did, and the person congratulates you for the demonstration. These are submissions the Crown suggests you might find helpful, but what you see on that screen is a matter for you. And I would suggest further, after the handshake's proffered that the accused is saying, sort of, through a motion which might be consistent with the victim reeling back and touching his stomach". 54 At the end of the Crown's closing address trial counsel for the accused raised various matters dealt with by the Crown in relation to evidence of oral statements made by the accused which, in terms of the appeal, in my view have no significance. In his closing address counsel for the accused said: "The last straw that the Crown grasps at in this case is the so called admission by conduct in Star City. It's so significant in the Crown's mind, it's so necessary we'd suggest to you for their cause – or from the perspective which the Crown puts before you that he knows the time, counter and second indication or reading, 3.44 and some seconds. I've forgotten. And it's described as a pantomime. Here's Mr Razzak re-enacting for the benefit of this man what occurred. And everyone's around him and they're all listening, some more interested than others, and there's a congratulations. Well, members of the jury, I'd say to you as my friend has said to you, look at the evidence, it's nothing of the sort. There's no indication of any stabbing, there's none of this grasping at the stomach. Indeed, the victim, I think put his right hand to his right side when asked to demonstrate what had happened so far as he was concerned after he'd realised he'd been stabbed. He didn't grab at his stomach. He put his hand to [his] right side. This congratulations from someone else to the accused can only mean according to the Crown's interpretation, well done. The accused, no words accompanying him, talking to someone whose identity is unknown to you some hours after the alleged incident is re-enacting the stabbing. There's a shoulder charging. Do you see that? Well, members of the jury, if I'm wrong –alright, let me put it another fashion – if my interpretation of that fact is not consistent with yours and you accept that the accused is re-enacting this stabbing, does that make him guilty? If that circumstance is the only circumstance or interpretation of that circumstance consistent with his guilt then I think your duty is to find him guilty. That's the way the law operates in this state. Even someone from the accused's perspective is not entitled to put to you a proposition that is knowingly misleading. I might be wrong because I just don't know the law but I can't put it to you knowingly. But, members of the jury, if that be a re-enactment and he's simply saying, this is what I saw, I didn't do it, this is what someone else did, known or unknown, that doesn't make him guilty of the crime. If that is a reasonable hypothesis or explanation for the accused's actions then he's entitled to what we'd call – I suppose what people call in layman's terms, everyday life, the benefit, the reasonable doubt is raised and you can't convict him. Nothing in the Crown case has been suggested thus far to say that that is not a possible, what the lawyers call hypothesis for those actions. Why isn't it possible that if he was at Pirrama Road when the stabbing occurred and he saw what happened and he was re-enacting what he saw – if my friend's interpretations of the actions are correct. Remember I suggested to you that they're not – but looking at it from the flip side, if that's the explanation for it then he can't be found guilty of stabbing this man because he's re-enacting what he saw. And he's never denied seeing a stabbing, he has denied doing a stabbing. No one has ever put to him connected with the investigation, did you see a stabbing? Nothing of the sort. And if he is re-enacting what he saw then he can't be guilty of this crime and there is nothing in the Crown's case to negate or put aside in more direct terms that proposition". (emphasis added) 55 Her Honour summed up (without referring to "admission by conduct") and in response to an enquiry from her as to whether there were any matters of fact, counsel for the accused said: "STANTON: Your Honour in respect of the portion of the video my friend relies upon and the Crown said in Star City, my principal submission to the jury is that they would not accept that that was a re-enactment, of course there are I say – if they are against me on that there are interpretations other than what the Crown suggests, but in the first instance we do not accept that that is in fact a re-enactment. That is the only matter, your Honour. HER HONOUR: All right, well members of the jury I will not repeat that, you have heard that, it is in dispute that you would even find that that was a re-enactment of the incident described by Mr Valu as taking place at about some time in the early hours of the morning in Pirrama Road" 56 In the context of the notified ground of appeal it is not clear from the matters set out above what precisely it was that defence counsel was seeking to have her Honour say to the jury in relation to exhibit L. The matter had been agitated earlier during the course of her Honour's summing-up (page 9, 16 September 2002) where consequent upon trial counsel's address her Honour raised the issue as to whether trial counsel was asserting that it was really a "link in the chain" and thus had to be proved beyond reasonable doubt that is, that the film disclosed an admission by conduct, or a "strand in the cable", the basis upon which she had admitted the video. 57 In the end her Honour left the matter to the jury in the terms that she did as merely a piece of circumstantial evidence. In my view she was correct to do so. That conformed with both the approach of the Crown Prosecutor in his closing address and with defence counsel's response to it. 58 My conclusion of the analysis of all this material is that it is still not clear what directions it is contended the trial judge should have given. 59 As the matter was left to the jury that body had the benefit of a clear enunciation of the Crown's approach to exhibit L, a clear enunciation of the defence approach to exhibit L and the clearest of directions from her Honour as to circumstantial evidence generally. 60 This ground has not been made out. Ground 9: that the verdict was unreasonable 61 During the course of submissions this Court was clearly invited to give consideration in relation to this ground as to whether the video demonstrates a re-enactment: the video was watched by the Bench in Court and was watched once again in my chambers. Speaking for myself, the video clearly could be understood as showing that for which the Crown contended. 62 Whilst the Crown conceded that if all it had to rely upon was the flawed resemblance evidence of Mr Valu, the case could not have succeeded, that "flawed evidence", together with evidence of the persons before and after and near the scene of the offence, exhibit K and exhibit D and exhibit L constitutes evidence upon which it was open to find the accused guilty of the offence with which he was charged. I say this subject to the matter raised in relation to ground 3. 63 The observations I have made as to what I have described as the error by the learned trial judge in relation to ground 3 are adhered to. However, whilst it is unfortunate that on more than one occasion her Honour did speak in terms of "supporting the correctness of the identification evidence of Mr Valu", that error in the end did not vitiate the trial in the sense of amounting to a miscarriage of justice warranting this Court's intervention on the conviction appeal. 64 Notwithstanding the references in the summing-up to which I have referred, it was quite clear to this jury in what was a remarkably short trial that there were two components to the evidentiary body. The flawed evidence of Mr Valu which was vigorously attacked by the defence and what was otherwise clearly made known to be circumstantial evidence. In all the circumstances I am not persuaded that the appellant was deprived of an opportunity of acquittal by reason of the matters founding ground 3. 65 Accordingly I would dismiss the conviction appeal. Sentence appeal 66 There is also an application for leave to appeal against the severity of sentence. 67 To remind, the appellant was sentenced on the ss51A matter (possession of firearm without license or permit) to 2 years and 6 months imprisonment to commence on 21 August 2002 with a non-parole period of 15 months which has now expired, namely on 20 November 2003. For the offence of malicious wounding with intent to do grievous bodily harm, the appellant was sentenced to 7 years imprisonment from 21 August 2003 with a non-parole period of 4 years to commence on 21 August 2003 and to expire on 20 August 2007. Thus the total effective sentence was 8 years with a non-parole period of five years. 68 It is contended on behalf of the applicant that whilst both offences were serious, whilst the malicious wounding required the imposition of a jail sentence, the sentences for each offence and the manner in which they are ultimately structured resulted in sentences which were manifestly excessive. 69 The applicant does not dispute that the sentences in relation to each count were "within range". The applicant also acknowledges that the types of behaviour encompassed by both offences mean that there is a very wide range of sentences appropriate for each matter. 70 The maximum sentence for malicious wounding with intent to do grievous bodily harm is 20 years imprisonment and the maximum sentence in relation to the firearms offence is 10 years. 71 It is contended in relation to the s33 Crimes Act offence of which he was found guilty by the jury that the sentence imposed by her Honour was "at the upper end". The applicant was 19 years of age when the stabbing incident occurred; he had no prior offences for matters of violence; but he was on a good behaviour bond at the time. 72 All of these matters were noted by her Honour. I am unimpressed by that component of the applicant's submission that he was "but one month shy" of completion of the bond imposed under s10 Crimes (Sentencing Procedure) Act 1999 for a dishonesty offence. He had been fined for larceny and had never been sentenced to jail before or to any other alternatives to full time custody. Tendered on sentence were testimonials from numerous people of which her Honour took account. 73 In relation to the s33 offence, 19 per cent of persons received higher head sentences and only 20 per cent received higher minimum terms, to the extent that such statistical information is of value. In relation to the Firearms Act 1996 offence, statistics were more limited and again, taking into account the weight that one can attach to them, it is said that of a total of 17 cases since July 1997 only 41 per cent received jail sentences, the remainder receiving bonds, with or without supervision, suspended sentences or periodic detention. 74 Exceptional circumstances are said by the applicant to apply to the firearms offence in that, as the learned sentencing Judge found, the applicant had the possession of the weapon for his own protection. The firearms offence was disclosed on the date of his arrest in relation to the s33 offence. 75 As her Honour noted, notwithstanding that he was taking the law into his own hands by having the firearm, the fears founding his possession of the firearm were realised when one month later he was shot five times whilst asleep in his home. The applicant was admitted to hospital with a severe spinal injury and underwent surgery to his legs, suffering a severe vertebral injury with neurological deficit. He also suffered the loss of his left kidney. 76 It was argued that whilst this matter was mentioned by her Honour it did not form part of her determination of the appropriate sentence for each offence when considering "subjective circumstances". 77 It is also submitted that there was evidence before her Honour that harsher circumstances of custody would apply by reason his of physical injury. 78 It is submitted her Honour failed to properly consider all the alternatives to a full time custodial sentence in respect of the firearms offence as was her duty under s5(1) Crimes (Sentencing Procedure) Act 1999. 79 The next major complaint about her Honour's sentencing is that her Honour stated that she had in accordance with Pearce v The Queen (1998) 194 CLR 610 fixed appropriate sentences for each offence and had considered questions of cumulation and concurrence as well as totality. In the written submissions it is stated that there is no statement of the appropriate sentences that she had originally fixed to allow any transparency in this procedure. 80 With the utmost respect to the author of the written submissions for the applicant, any fair reading of her Honour's succinct and thorough remarks on sentence lends no support to any of the submissions. After reciting the facts as she found them in relation to the malicious wounding, her Honour said that this was an extremely serious offence. Her Honour remarked upon the use of a knife being treated with abhorrence in the community and remarked, quite appositely in my view, that this applicant had committed a "completely gratuitous act of violence on a perfect stranger". She expressed her own satisfaction beyond reasonable doubt that the video footage of the offender's re-enactment of the incident portrays him boasting and indeed "gloating over his action…it is chilling to watch". 81 Her Honour dealt with specific deterrence and general deterrence and took into account the fact that the offender was on a bond to be of good behaviour at the time of committing the offence, and that that was an aggravating feature. 82 At the time of committing the firearms offence the applicant was on bail in relation to a goods in custody matter, such bail having been granted on 28 February 2001. 83 Her Honour makes it quite clear that she takes into account as a mitigating factor that the offender had the pistol for his own protection. Her Honour then deals with the subjective circumstances, the testimonials, the fact that the offender was shot and suffered the injuries to which reference has been made. She refers to the offender not having served a sentence of imprisonment previously and that physical disabilities would make prison more onerous for him. 84 She allowed a discount of 25 per cent in relation to the plea at the first reasonable opportunity in respect of the firearms offence. She noted that in relation to that offence there was little other evidence of remorse. It was not until the end of the remarks on sentence where her Honour states the figures, as it were, that her Honour indicates compliance with the regime provided for by Pearce. The point taken by the applicant that her Honour made no statement of the appropriate sentences is totally without merit. 85 Whilst it might be thought that the ultimate sentence could be severe, it is not manifestly excessive. No error has been pointed to such as to persuade me that this Court needs to interfere by reason of such error or by reason otherwise of the manifest excessiveness of the sentences imposed. 86 I would propose the following orders: 1. That the appeal against conviction be dismissed. 2. That leave to appeal against sentence be granted. 3. That the appeal against sentence be dismissed. 87 O'Keefe J: I agree with Levine J. 88 Bell J: I agree with Levine J. ********** Last Modified: 03/23/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.