New South Wales Court of Criminal Appeal CITATION : Yasser Ahmad v Regina [2004] NSWCCA 460 HEARING DATE(S) : 1 October 2004 JUDGMENT DATE : 17 December 2004 JUDGMENT OF : Dunford J at 1; Hoeben J at 2; Smart AJ at 3 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence refused. CATCHWORDS : Fears by juror for her safety as she lived close to appellant and his family - fears not communicated to remainder of jury - juror discharged, trial proceeded. Photo identification permissible as accused could not be located promptly - array of photographs satisfactory - effect of comments of victim during sighting of photographs - displacement effect not a real consideration in circumstances - comprehensive directions and warnings as to identification - directions and warnings adequate - summing-up balanced and unobjectionable - verdict not unreasonable and supported by evidence LEGISLATION CITED : Evidence Act 1995 Criminal Appeal Act 1912 s.6(1) CASES CITED : MFA v The Queen (2002) 213 CLR 606 M v The Queen (1994) 181 CLR 487 at 493-494 PARTIES : Yasser Ahmad v Regina FILE NUMBER(S) : CCA 2004/1817 CCAP COUNSEL : (A) P Byrne SC (C) D Howard SOLICITORS : (A) Murphys Lawyers Inc (C) S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0217 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1817 CCAP DUNFORD J HOEBEN J SMART AJ F riday , 17 D ecember 2004 Yasser AHMAD v DIRECTOR OF PUBLIC PROSECUTIONS JUDGMENT 1. DUNFORD J: I agree with Smart AJ. 2. HOEBEN J: I agree with Smart AJ 3. SMART AJ: Yasser Ahmad appeals against his conviction of maliciously inflicting grievous bodily harm to the complainant with intent to do grievously bodily harm He also sought leave to appeal against a sentence comprising 10 years imprisonment with a non-parole period of 7½ years. At the hearing the application for leave to appeal against sentence was not pressed. Accordingly that application is refused. 4. On 13 April 2002 the complainant, her niece, Heidi, and two of Heidi's friends went to the Embassy nightclub at Double Bay. After dinner they went to the dance floor and the complainant danced with some friends. The complainant's table was some distance from the long bar. The club got busier as the night progressed. At the time of the assault it was estimated that about 300 people were in the club. About 90 per cent of the male patrons were young Lebanese. Heidi had left prior to the assault. 5. Around 1.30am on 14 April 2002 while at the Long Bar the complainant bumped into a man called Sam (Wassam Shamma, probably) whom she knew from a TAFE College about ten years earlier. Sam was with a group of Middle Eastern males. She and Sam were talking. Another male whom she did not know approached them. That male was smoking a cigarette and holding a glass in his right hand and appeared to be a friend of Sam. She deposed to this conversation with that male: "Male: Hello sexy, how are you Complainant Who are you Male: Wouldn't you like to know Complainant: No actually, I don't Male: I think you should suck my cock then (This was accompanied by hand and mouth gestures) Complainant: Get over it mate, step off." 6. She said that the male came up really close to her and said: "I'm going to ruin your pretty face, you think you're gorgeous, you think you're sexy, you think you're all that." 7. She said that he was not doing anything with his hands, "he was just right up me with a really angry face, looking at me. And then I said to him 'Yeah, and what's wrong with that?' And then he lifted his hand and he started swaying the cigarette around my face," (She indicated with her hand an area of her face). She said she swatted his hand. She continued. "Yes, and I turned around to walk off and I got hit at the back of the head, so then I turned around and I looked at him with a dirty look, like to stand my ground, 'cause I just got hit … I've decided I am not going to bother' and within that second before I could turn around he's hit me with the glass. I fell to the floor." 8. She said that the glass was in his right hand and that he struck her on the right side of her face. Blood was "gushing out" of her mouth. Later in her evidence it was made clear that she did not actually see the male hit her. She described the lighting around the long bar as "dark" and "very dim", "just laser lights". 9. In cross-examination she agreed that she pushed the man's left arm away from her face. She then turned around and walked away. This passage follows in her evidence (T61-62 of 14/7/03): "Q. So you had your back to this person is that right? A. That's correct. Q. And presumably when you walked away you had your back to not only that person but other people in the group? A. That's correct. Q. And at that time and at the stage you felt a hit on the back of your head? A. Yes. Q. And you didn't see who did that? A. No because my back was turned. Q. And that caused you to stumble forward? A. That's correct. Q. And you say then you turned around and that's when you were assaulted? A. No I turned back around and gave him a dirty look because I don't appreciate you hitting me at the back of my head and I got scared so I thought no I'm not going to waste my time. As I start turning around he's hit me in my face. I've decided I want to turn around and leave this place, within seconds I didn't even get to do that, he's hit me in the face. Q. Was it whilst you were turning around that you were hit? A. I was, I was at this stage, I haven't turned around, my back is not towards him, I was at this stage and that's when he hit me. Q. You mean at an angle? A. On an angle, yes. Q. Side on? A. Yeah. Q. So you were side on to the person who you say struck you? A. Yes. Q. You weren't facing him? A. No. Q. Were you facing towards the kitchen were you? A. When? Q. At this time? A. No. Q. When you were assaulted? A. No Q. When you were assaulted? A. When I was assaulted I fell to the floor. Q. But prior to falling to the floor at the time you were assaulted were you facing towards the kitchen or not? A. Yes I was looking at the kitchen." 10. The Crown relied heavily on a compelling sequence of events. A lewd sexual suggestion made by the man subsequently identified as the appellant was summarily rejected by the complainant. He had a glass in one of his hands. He became very angry and threatened to ruin her face. He lifted his hand and swayed a cigarette around her face. She pushed his hand away. She turned around and walked away. She was hit at the back of the head. She turned around and gave him a dirty look. She decided not to engage in a confrontation. As she started to turn around and while she was at an angle and looking towards the kitchen she was hit in the face with a glass. She was side on. 11. Naturally, with this history, she did not see the man strike her but the circumstances point, and only point, to the man who had insulted and threatened her as the assailant. The threat made materialised. 12. She was dragged by a security guard to the kitchen and while there could see the group drinking, smoking and having a good time. She said to the security guard "go and get him". She was taken from the kitchen via a back way to the ambulance. She was treated by a male and female ambulance officer and taken to St Vincent's Hospital. 13. I interpolate that there was no issue at the trial that grievous bodily harm had been maliciously inflicted on the complainant with intent to do such harm. The issue was whether the appellant was the person who inflicted such harm upon the complainant. 14. After her admission to St Vincent's Hospital and prior to her operation the complainant spoke with a male and a female police officer. The operation lasted some five hours, with both internal and external stitching. She was in hospital for two nights before being discharged. Initially she could not open her mouth to speak. She had seven scars on her face. 15. Ambulance officer Porter accompanied the complainant inside the ambulance. She was upset. She wanted to know whether there would be much scarring. He indicated to her that she should not speak. He filled out the requisite forms after he had transferred her onto a hospital bed. 16. He made a statement to the police on 30 July 2002, some 3½ months after the incident. The statement contains this paragraph: "I also asked [the complainant] how the injuries had been sustained. I recall her telling me that she had been in the night club and that someone had thrown a glass from the other side of the room at her back which had hit her in the face." 17. He said: "I recall someone telling me there was a glass involved and that it had been thrown or – I didn't really. I can't recall the events of what happened, just that it was a glass injury." 18. He believed that the security staff told him what happened and that the complainant did not object. He asked her what happened while standing on the footpath. 19. On the form filled out at the hospital he wrote: "Her chief complaint facial laceration patient in night club and had a glass thrown at face causing laceration across right cheek and end of nose across lip top and bottom, nil LOC (loss of consciousness) …" 20. Mr Porter did not believe he obtained the information as to how the accident happened from her. He also believed he asked on the footpath how the accident happened. 21. Mr Porter's recollection and the contents of the form dovetail. Mr Porter explained that he was not particularly concerned as to the mechanics of the incident. All he needed to know was that it was a glass injury. He attends 15 to 20 assaults every Friday and Saturday night. He recalled a substantial injury to her bottom lip. 22. The jury would have been entitled to take the view that Mr Porter's recollection was correct, and that in the circumstances not much weight should be attached to the written statement made to the police. It was obviously a reconstruction made some 3½ months after the incident. Indeed, it would be surprising if the jury took any other view. 23. Ms KD Raper was working with Mr Porter. A call was received at 1.40am to attend the Embassy nightclub. She asked the complainant to remove a cloth from her face; on her doing so Ms Raper noticed quite severe and deep lacerations. These meant the complainant had trouble talking; she was difficult to understand but it was possible to understand what she was saying. Ms Raper heard Mr Porter asking her not to talk too much. 24. Ms Raper confirmed the presence of at least two security guards outside the club. She said that the complainant said that somebody had thrown a glass at her. This was either as Ms Raper was walking her to the ambulance or immediately she was placed in the back of the ambulance. Ms Raper could not recall exactly. 25. Ms Raper said that when she made her statement for the police on 5 June 2002, she relied on the case sheet and her recollection. She did not hear any mention of the other side of the room or words to the effect that a glass was thrown from the other side of the room. Ms Raper reiterated that the complainant only stated that somebody threw a glass at her. 26. Chanel Magele, a security guard, noticed that something had happened at the long bar. He walked over and saw a girl lying down holding her face. He knelt down and saw the cuts on her face and blood spurting out. He took her to the kitchen. Ms J C Paine gave him some towels which he placed on the girl's face. She said "Am I bad" several times. He asked her if she knew who did it and she nodded. He could not understand what she was saying. He was trying to stop the flow of blood. They walked the complainant down the stairs to the ambulance officers. He said that the female ambulance officer asked what happened and that either he or the security guard supervisor, George Sleiman, said "she's just been glassed" (meaning, having a glass break in your face). The complainant was placed in the ambulance. 27. As to lighting, Mr Magele said that there were the usual flashing lights on the dance floor and dim lights at the long bar. 28. In cross-examination Mr Magele agreed that he heard the complainant say, in a mumbled way, "am I all right, am I going to be scarred". Mr Magele agreed that in his statement of 13 June 2002 he did not mention that the female ambulance officer had asked "What happened" and the reply of either Sleiman or himself that the complainant had been glassed. Mr Magele had recorded in his statement the ambulance officer asking where it had happened and Sleiman replying that it had happened inside. Mr Magele agreed that his memory was better in June 2002 than on 15 July 2003. However, he stated that what he had said in his evidence was his clear recollection of how the conversation went. The jury were entitled to accept Mr Magele's oral evidence. That was inherently more probable. What happened was so much more important to the ambulance officer and it was the question Ms Raper said that she asked. 29. George Sleiman was the security supervisor at the Club at the time of the incident. About 1.30am Mr Sleiman, who was doing a patrol of the Club, was at the end of the long bar furthest away from the kitchen. He saw Mr Magele with the complainant on the floor at the end of the long bar nearest the kitchen. There were a number of people in the vicinity. He became aware from what Mr Magele told him and his own observations that the complainant had been cut badly. She had been seriously injured. He took the complainant into the kitchen, sat her on a chair and rendered first aid, applying some pressure to the wounds to stop the bleeding. He called an ambulance. 30. Mr Sleiman said: "I asked if she knew who did it, and she was nodding, and she was trying to speak, but I couldn't understand what she was saying. And I just told her okay don't worry about it, we just tried to keep applying pressure on her face." 31. He and Mr Magele walked her down to the front of the club, meeting the ambulance officers as they arrived about the same time. Mr Sleiman said: "The female officer asked me what happened … and I said look this girl has been glassed and she said okay and she took the towel off her face … it looked like she was shocked and it was severe, so she's put it back on, taken her inside and she's told me that the police will have to be notified of this …" 32. Mr Sleiman said that the complainant was about a metre to a metre and a half from the long bar. The lighting was dim but you could still make things out. 33. After the ambulance left Mr Sleiman made enquiries of the security officers on the door. They had not seen anybody leave. He went upstairs and questioned the other security staff and patrons who were around. Everyone denied seeing anything. 34. In his statement to police Mr Sleiman said, "it appears we had a glassing." He regarded this as the same thing as he had said in his evidence. 35. Mr Sleiman's evidence reinforces Mr Porter's recollection that he did not obtain the information as to how the accident happened from the complainant. Ms Raper's evidence that the complainant said, albeit speaking with difficulty and hard to understand, that somebody had thrown a glass at her does not mean that this was at some distance. As Ms Raper reiterated, the complainant only said that somebody threw a glass at her. What concerned the security guards and the ambulance officers was that this had caused her injuries. I have reviewed the evidence on this aspect at some length because of the emphasis placed on it in the applicant's submissions. Any discrepancies are not of consequence and would not have troubled any reasonable jury. 36. Ms J C Paine, the bar manager, was closing the VIP bar when she was told that an incident had occurred. That bar was some distance from the long bar. She went to the kitchen and asked, "What's happened, who's done this?" Ms Paine stated that the complainant kept pulling the cloth off her face saying, "am I gonna scar, am I gonna scar, get him, he's out there, he's out there, go get him." 37. Ms Paine insisted that the complainant and her friends were very well behaved. Earlier in the evening she sat down and had a talk with them. Ms Paine noticed the complainant through the night. She was not intoxicated. Ms Paine questioned other staff, but no-one actually saw the event happen. 38. Ms Paine moved to Queensland. She attended at a police station in Queensland and made a statement there. She was shown on a screen via a computer disk, images of 20 male persons. She recognised one person who had patronised another club at which she had worked. She could not say whether he was at the Embassy Club on the night/early morning in question. She did not recognise any of the other faces as being in the Embassy Club at that time. 39. She described the Club as generally not being brightly lit. However, it was quite bright in the area of the long bar. It was white with a luminous light on it. She said that the long bar had lighting all the way through it and underneath it. Ms Paine agreed that in her statement to the police she stated that she said to the complainant, "Did you see who it was?" The complainant had replied, "No, I didn't see anything." Ms Paine stated that this was said once and that she did not know why the words "every time" appeared in her statement as they were not correct. 40. Ms Paine rejected the suggestion that her statement was not correct and said that the complainant "might have said it, once or twice to me and then she's saying 'he's out there, go, he's out there, get him'." The latter words were not in her statement. 41. Ms L G Roberts was working as a bar attendant at the Long Bar. Immediately prior to the incident a group of 10 to 12 Lebanese males had been standing to the front of the bar down towards the kitchen. They had been buying drinks for some time. She was serving drinks to numerous people, as she was the only one behind the bar. She noticed that a group of people cleared in the area in front of her and she saw a girl kneeling on the ground with her hands to her face with blood dripping. The group of males dispersed. The girl was taken to the kitchen. She described the lighting, in the area where she and the girl were, as dim. 42. She attended at the Paddington Police Station on 6 May 2002 and was shown a "computer identification parade". Facial images of 20 male persons were put on a screen. She said that image 13 looked familiar. He could have been one of the men who was there on the night but she could not be 100 per cent sure. (Image 13 was that of the applicant). 43. Having outlined the circumstances in which the complainant met and saw her assailant, it is necessary to turn to the identification evidence in more detail as several of the grounds of appeal relate to it. 44. The complainant had never seen her assailant prior to the night in question. She described him thus, "… he was dark skin, gelled black hair, he had a thin goatee, he had bushy eyebrows and he was plump looking … like, healthy looking." She described his hair as slicked back. She said that he was wearing, "All black, all I could see is black …". She said that he was wearing a black jacket and black pants. She did not remember what he was wearing under the jacket. She estimated his age as 25. He had a heavy gold chain around his neck. She agreed that most of the people at the Club had dark hair, wore dark clothing and were between the ages of 20 and 30. She also agreed that a lot of the people at the Club have facial hair in the form of either a goatee or a beard or they were unshaven. A large number of the people there, if not most, wore jewellery around the neck. 45. I interpolate the evidence of Heidi Ammouri the complainant's niece who went with her aunt to the Embassy Club on the night of 13 April 2002. There Heidi saw a young man called Abdul, who was courting Heidi's younger sister. Abdul was wearing a short sleeved polo shirt and had a shaved head. During the evening Abdul gave Heidi a key ring containing a small photograph of himself and the appellant and requested her to give the key ring (with the photograph) to her younger sister. Heidi did not know whether the photograph was taken that night but she added that Abdul was shown in the photograph in what she described as a polo shirt. At the time she was given the key ring and photograph she did not know the appellant. While she recognised the face of the person shown in the photograph with Abdul she was not sure whether he was at the Embassy Club late on the night of 13 April and early on 14 April 2002. According to Heidi the complainant was shown the photograph of the appellant in the key ring on the night of 13/14 April 2002. 46. The complainant said that she first saw the photograph on 31 July 2002 when she and her mother visited the home of Heidi's mother and the complainant's mother noticed it and enquired who were the people shown in the photograph. The complainant looked at the photograph and, in an instant recognised the person who had assaulted her. The complainant took the key ring with the photograph to her home. She said of the clothing, "Well it was the exact clothing of that night the two of them. That's the way they were dressed, that's the way they looked. That's from the night." She believed that the photograph was taken earlier on the night prior to her being assaulted. The complainant agreed that the key ring photograph showed the man who assaulted her wearing a shirt. She described the colour of the shirt as purple. She agreed that that man was not shown wearing a chain. She said that by "jelled black hair" she meant hair that was "pulled back" and no more. She was not meaning to convey that the hair was long. The photograph in the key ring did not reveal the appellant as being plump or fat. At one stage she equated "plump looking" to "healthy looking". 47. The Photo Identification On 17 April 2002 the complainant attended at Bankstown Police Station. She sat down in front of a computer. Det Fitzgerald operated a video recorder and Det Nolan set up the photographic identification parade and explained the procedure. The process was video-recorded. She looked at a series of photographic images of men's faces, each of which was numbered. When face No 11 appeared she spoke to Det Nolan. She identified that image as being an image of a person who had been at the club on the morning of the assault. It was not that of the man who had assaulted her, but one of a man who was standing nearby. When face No 13 appeared she recognised that image as that of the man who had assaulted her. The police showed her photographic stills of images 11 and 13 which she signed. She also signed some handwritten notes made by Det Nolan. 48. On 21 May 2002 at Bankstown Police Station she was shown a number of photographs and nominated photo 17 as being the image of the man "Sam" with whom she had spoken at the Embassy Club prior to the assault. 49. In cross-examination the complainant stated that she was mumbling when she spoke to Det Nolan because she could not open her mouth and that the police could not hear what she was saying. She denied that she said to the officer when looking at face 11 "I don't know whether or not he was the one who smashed the glass". She said that she did not refer to the man in image 13 as being in her face but she did say that he was being "a smart arse". 50. She said that she guessed the height of the appellant. The photograph was of the upper part of his body. 51. She agreed that when she saw face 11 she hesitated. That was because she wanted to make sure that he was part of the group. She agreed that she hesitated when she saw face 13. She was shocked that he was on the screen. She denied that she hesitated because she was unsure. She insisted that she was 100 per cent sure. 52. She agreed that the man in photograph 13 did not have jelled slick back hair but she did not know when the photograph was taken. 53. The complainant accepted that she may have been wrong when she said that the appellant was wearing a thick gold chain. Many of the men were. 54. She said that the assault took a few seconds but the episode lasted much longer – she estimated 5 to 10 minutes from when they first spoke until the conclusion of the assault. 55. Det Snr Cons Nolan stated that after extensive enquiries the police were unable to find anyone who said that he or she directly saw the incident in the club. Det Nolan said that 20 images were shown to the complainant at Bankstown Police Station on 17 April 2002 and that she commented upon images 11 and 13. Image 11 was of a man called Albert Hammouche and image 13 was the appellant. 56. Det Nolan agreed in cross-examination that it was apparent from the video and audio recordings that the complainant was having difficulty speaking clearly. He prepared a transcript of what she said by listening to the tape a number of times. The judge warned the jury that the evidence was what they heard on the tape, that the officer was giving his view of what he thought he heard on the tape and that it was what they thought was on the tape which was the evidence. 57. Det Nolan said that in his opinion when referring to face 11 she said, "He was in the group this guy". Det Nolan then said, "Was in the group" and she replied, "Yeah I don't know whether or not he was the one who smashed the glass". Det Nolan thought she said: "I didn't get smart with him. I still haven't seen the guy who was trying to put the cigarette out in my face. Yeah, Mm, he was in the group this guy, he was there … (inaudible) you know that I didn't see who smashed me in the face … (inaudible) I still remember that person that I had the conflict with." 58. Det Nolan agreed that for identification purposes police focus on height, weight, eye colour, physical characteristics such as tattoos, scarring, birth marks or some physical disability, date of birth, fingerprints (if available) and DNA. 59. The Crown Prosecutor who appeared at the hearing before us listened carefully a number of times to the tape recording observed that it was very difficult to decipher precisely what the complainant said. Having watched the video recording and heard the audio recording I agree. The Prosecutor submitted that when shown photo 11 the complainant clearly said, "he was in the group this guy …" and then said "and they were all there watching him at the time he smashed the glass. [There was room for debate as to whom she meant by "he"] I didn't get smart with him. I still haven't seen the guy who was trying to put the cigarette out in my face. Yeah, Mm, he was in the group this guy, he was there … you know that I didn't see who smashed me in the face I'm just telling you about the person that I had the conflict with. This guy was there … this guy was there." Her statements to that point were somewhat confusing. The Prosecutor submitted that when asked to expand by Det Nolan she then stated, "He was in my face, he was being smart arse, just like the other one." 60. Senior Counsel for the appellant described the Prosecutor's account of what was said as "useful and … accurate except for perhaps some minor points of contention," Senior Counsel submitted that some of the words she uttered on the tape were difficult to decipher, some could not be deciphered and that it was very difficult to decipher precisely what she said. Senior Counsel submitted that it was reasonably clear that she uttered the words, "I didn't see who smashed me in the face" and that these were of critical importance. 61. The Crown submitted that the complainant did not say as suggested by Det Nolan, "I don't know whether or not he was the one who smashed the glass". The complainant denied that she said this. The appellant sought to attach importance to Det Nolan's interpretation as he was close to her when she spoke. Det Nolan did not suggest that this was an important consideration. He appeared to rely on playing the tape a number of times and listening carefully. The contents of what was said and recorded on the tape were matters for the jury. The jury may also have thought that what was said as a whole was not sufficiently clear, that the context could be important and that it was not useful to pore over the tape in the unrewarding attempt to divine the fine detail of what she said when she was having such obvious difficulty in speaking. The jury may have thought that her evidence was the better guide. People who have difficulty in speaking often cannot express their observations and what they recall with complete accuracy. 62. The complainant went on to identify the man in photo 13 (the appellant) as her attacker. She had a very strong reaction on seeing this photograph and became very upset and indicated to the police officer, "he's the one." She also said, "that other guy was his friend… that's him, but he had a goatee like this." (She outlined the shape of the goatee on the image). A jury would have been entitled to attach importance to her visual reaction and indication. 63. The appellant submitted that while the complainant was emotionally upset it was no indicator of reliability. It was an indication of whom she believed had assaulted her. The appellant pointed out that there was a delay of 36 seconds in her confirmation that the man in photograph 13 was her assailant. This did not strike me as suggesting that she may have been doubtful. She was just being careful. 64. The appellant said in his evidence that he went to the Embassy Club on 13 April 2002 about 11.00pm. He had two or three scotch and cokes, followed by a bottle of water and a shot. He was wearing black pants, a black jacket and a light grey long sleeved shirt. He was not wearing any jewellery except for a ring. He did not have gel in his hair and he had a Number 1 cut, cut even shorter on the sides. He had a really thin goatee, but most of the Lebanese males there that night had goatees as it was the trend. During the night he thought that he would have taken his jacket off when it got hot. The appellant said that he was smoking when he was at the night club and that a lot of other people were smoking. When he smoked he always held the cigarettes in his right hand, as he is right handed. 65. The appellant described the jacket as being one that had a zipper. He said it was open. However, if at the time of the assault it was zipped up or partially so this could explain why the complainant did not see or recall that the appellant was wearing a lighter coloured shirt. It is appreciated that the appellant asserts that he had left the club before the assault occurred. 66. The appellant moved around, talking to people. He had two dances. The appellant said that a little after midnight his friend Abdul asked if he wanted his photo taken with him and he agreed. It shows Abdul wearing a gold chain. The appellant said that he left the club around 1.00 to 1.15am. He denied talking to the complainant or even seeing her. He denied being involved in an altercation with her or hitting her with a glass. He did not see any fights. He stated that there were always scuffles in night clubs over girls. He did not see anything happen. 67. Appeal Ground 1 reads: "Evidence of the identification of a photograph of the appellant shown to the complainant should not have been admitted having regard to the form of the photographic array: s 115(2) Evidence Act 1955 and the time at which the photographs were shown to the complainant: ss 137, 138 Evidence Act 1995 . " 68. The appellant submitted to the trial judge and to this Court that it was unfair for the investigating police not to have made a more determined attempt to find the appellant so as to invite him to participate in an identification parade. 69. The material before the judge revealed that within about two days after the assault the police received information from a source other than the complainant that the appellant may have been responsible for the assault. Det Nolan carried out some checks on the police computer and also made use of the Roads and Traffic Authority records. Both showed the appellant's home address as 1335 Canterbury Road, Punchbowl. Early on 17 April 2002 Det Nolan and Det Fitzgerald went to that address and spoke to a man who said he was Ali Ahmad and a brother of the appellant. He was sitting in a chair at the back of the house and after a short period was joined by his mother. After introducing himself as a detective Mr Nolan said that he was there to offer Yasser Ahmad a line-up and enquired whether that man was there. On being told that the appellant was not there, Det Nolan asked Ali Ahmad whether he knew where the appellant lived and did he live at the Punchbowl address. Both questions were answered in the negative. Ali Ahmad said that he did not have a telephone number for the appellant and that he (Ali) had no idea where Det Nolan might find the appellant to offer him a line-up. Ali Ahmad said that they (Nolan and Fitzgerald) would not be able to get to the appellant because he (Ali) did not even know where the appellant was. In answer to Det Fitzgerald's question, namely, was the appellant likely to be back at the Punchbowl address, Ali Ahmad replied, "No, what is the line-up for?" Det Fitzgerald replied, "We can't discuss it with you, is there anyway we can contact him?" Ali Ahmad replied, "No". 70. That conversation indicated that it was going to be difficult, if not impossible to locate the appellant within a reasonable period of time to arrange a line-up. The police were "given the brush off" by the appellant's family. He cannot, of course, be held responsible for their lack of co-operation, but the police had run into what was tantamount to a brick wall. They were told that there was no way that they could contact the appellant even though he had been at the family home a few days previously. 71. The judge was correct in holding in the circumstances that it would not have been reasonable to have held an identification parade. It would not have been practical to do so. 72. The thrust of the appellant's attack under this ground was that the photographs shown to the complainant suggested that they were pictures of persons in police custody. It was submitted that the photographs depicted males with at least unsmiling, if not solemn sometimes scowling faces, such as could be expected of photographs which are taken by police of people in custody. It was further submitted that the array of photographs shown to the complainant, all of them taken front on, was about as close as any group was ever likely to come to being the traditional mug shots. They did not have an accompanying photograph in profile with a number underneath. The array of photographs was a fair one including photographs of young men of Middle Eastern or Mediterranean appearance and, in broad terms, fell within the general description given by the complainant. 73. The trial judge thought that there was nothing about the photographs which introduced the "rogue's gallery" effect. I agree that the faces are unsmiling and serious and in a couple of the photographs the subjects seem unhappy. However, while the photographs are plain they reflect a variety of facial shapes and sizes, a variety of hair styles and a variety of expressions. 74. I do not think that the photographs shown to the complainant infringe the provisions of s.115(2). They do not suggest that they are photographs of persons in custody. The judge gave the jury this direction on the admission of the video containing the images of 20 males: "Ladies and gentlemen you will see some photographic images of, as you've heard, twenty males, one of whom obviously was a photograph of the accused. I want you to understand that persons depicted in those images you should understand have not necessarily been convicted of a criminal offence or indeed of persons in custody. Police obtain photographs from all sorts of sources. They could well be passport photos, they could come from any area. So you should not draw any adverse inference against the accused because police have a photograph which form part of the twenty that were shown to the witnesses." The direction was required by and complied with s 115(7)(b), Evidence Act 1995. 75. The Court must proceed on the basis that the jury accepted and applied this direction. It also overcame any possible prejudice. Of course, if the photographs had infringed s 115(2) they would have been inadmissible. The direction could not cure the gap in the identification evidence which would have existed in the Crown case. Appeal Ground 1 should be rejected. 76. Appeal Ground 2 reads: "The learned trial judge erred in failing to discharge the jury following the disclosure by an individual juror that she held fears for her safety at the hands of the appellant or those associated with him." At the start of the proceedings on the fourth day of the trial the judge received a note from a juror who expressed concern because she lived in close proximity to the address given by the appellant in his evidence on the previous day. She expressed serious concern for the safety of herself and her family. The juror had noticed friends or family members of the appellant in the public gallery. She was worried about what would happen if a verdict of guilty was returned. The appellant sought the discharge of the jury because the juror may have inadvertently conveyed her feelings to the other members of the jury. 77. In her evidence the juror said that she had not spoken to the other members of the jury of her feelings or given any indication of them. The juror said she wrote her note alone when she arrived at the Court. She was the first to arrive. She thought that another juror had arrived after the note had been written. While not sure, she thought that juror was present when she handed the note to the Court officer. She never said anything about the note to any other juror and no-one spoke to her about it. 78. The judge discharged the juror but declined to discharge the remainder of the jury or the jury as a whole. On resuming the trial the judge told the jury that they need not concern themselves about the reason why a juror had been discharged and that the trial was to continue with 11 jurors. 79. Having satisfied herself that the other members of the jury had not been acquainted with the worries and fears of the single juror, the judge did not err in the exercise of her discretion in refusing to discharge the jury as a whole. She decided that the interests of justice would best be served by continuing the trial with eleven jurors. The judge had started her summing-up. Appeal Ground 2 should be rejected. 80. Appeal Ground 3 reads: "The directions given … on the potential impact of the so called 'displacement effect' on the selection by the victim of the appellant's photograph was inadequate and tended to denigrate the importance of that matter for the purpose of the deliberations of the jury." 81. This was not a case where the "displacement effect" argument is of importance. It was based on the evidence of Heidi Ammouri, the complainant's niece, that a small key ring photograph 4cm x 3cm of two men, one being the appellant and the other, Abdul, was handed to her by Abdullah to give to her younger sister and shown to the complainant amongst others by her. The broad features of the upper body of the two men are visible to the naked eye. A magnifying glass is required to pick up some of the detail. The photograph was said by the appellant to have been taken just after midnight on 14 April 2002. The lighting in the nightclub was dim. The evidence of the niece does not disclose how closely the complainant and the other girls in their group looked at the photograph in the key ring. The interest was in Abdul. The complainant said that she did not see that photograph until 31 July 2002, some 3½ months later. There was no reason for the complainant to look closely or carefully at the photo of the appellant in the key ring. The assault did not take place until later. 82. In the context of the facts of the present case the argument that the key ring photograph had a displacement effect was of no consequence. The judge at SU38.39 adequately reminded the jury of the appellant's submission that the photograph in the key ring had a displacement effect and again at SU51-52. Appeal Ground 3 should be rejected. 83. Appeal Ground 4 reads: "The argument that was advanced by the learned Crown Prosecutor in his closing address to the effect that the events of the night of the assault would have left the victim with an "indelible imprint" of the face of the person who attacked her, an argument that was repeated with greater force and to greater effect in the summing up … was not available on the evidence and could not be said to be a matter of common knowledge." 84. This ground is overstated. The Crown Prosecutor said (T184): "Regardless of the exact length of that time, it's a matter for you but you may well think that in the circumstances described by her, in view of what was said and then what happened immediately afterwards that the face of the man who did that to her would be imprinted on her mind. That's a matter for you. Possibly not exactly what he was wearing, possibly not exactly how long his hair was but you might think that she wouldn't be likely to forget the features of the person who broke a glass in her face. These are matters for you to assess." 85. The submission made by the Crown Prosecutor was restrained in its terms and posed an issue for consideration by the jury. Immediately prior to this submission he had detailed the circumstances on which he relied. The words uttered by the appellant were coarse and memorable to the recipient, there was the swaying of the cigarette and the length of time the whole incident lasted. This was not a momentary sighting or confrontation. 86. The appellant submitted that there was no basis for the Crown's submission and no evidence from any person trained in the science of the powers of human observation and recollection, nor any evidence of the impact of the psychological stress caused by involvement in a violent assault upon the human functions of perception and recollection. The appellant submitted that this was not a matter which could be left to "common sense". 87. The complainant stressed the appellant's face. She said, "he was just right up me with a really angry face and he came up to me really close." (T30). She did not use the word "imprinted" but that was the effect of what she said. 88. In recounting the Crown's submissions as to identification the judge said (SU46): "But it was the face she said, and the Crown repeats, it was the face which you might think would be imprinted on her memory, something that she would never forget in view of these horrendous injuries she sustained. That you would not expect her to forget the face of the person, the man, who thrust the glass in his hand in her face." 89. It is true that at this stage the judge did not refer to the contrary argument that because of the stress she was subjected to , including the injuries received, her recollection of the appellant's face may be unreliable. At SU46 the judge was putting the Crown case. 90. The prosecutor's address was followed by that of counsel for the appellant. Senior Counsel dealt at length with the identification evidence and the possibility of a mistake being made. He stressed the unsatisfactory aspects of a black and white photograph of the upper part of the body, principally, the head. He gave ten reasons why there was a need to go beyond her apparent identification. In the course of a skilful and comprehensive address Senior Counsel for the appellant contended that after the alleged offensive language the complainant would have been trying to move away rather than remain nearby and take in a full picture of what the appellant looked like. Counsel (at T204) endeavoured to persuade the jury that the complainant would not have obtained a good view of the appellant's face. Counsel did not directly respond to the argument which is now the subject of strong objection. Instead he by-passed that argument with the one just mentioned. Senior Counsel did not seek any re-direction on the point now raised. 91. The point raised was one of a number of arguments raised by the Crown, which the jury were well able to evaluate. The essence of the Crown case on identification was that she saw the appellant's face at close range for an appreciable period of time and that she recollected and identified that face. The jury, by its verdict, accepted that contention. Appeal Ground 4 should be rejected. 92. Appeal Ground 5 reads: "The summing up given by the learned trial judge failed to draw sufficient attention to the particular weaknesses in the identification evidence which tended to diminish its reliability. There was insufficient emphasis given to the specific points of distinction between the description of the assailant given by the complainant and the appearance of the appellant on the night in question, as disclosed in the photograph contained in the key ring given to the complainant's niece (exhibit C). There was also insufficient emphasis given to the evidence of what the police officer heard during the photographic identification procedure." 93. The appellant submitted that this was a case where comprehensive directions on the question of identification were required. The judge commenced her summing-up towards the end of the hearing on 16 July 2003. She explained to the jury her function and their functions, how they should approach their task and assess the evidence and the witnesses, the role of counsel, the conduct of their discussions in the jury room, the onus of proof, the need for proof beyond reasonable doubt. On 17 July 2003 the judge spent about twelve minutes dealing with the note from the juror and the latter's discharge. Within a short space of time she explained: (SU18) "What is strongly challenged and what this case is all about really ladies and gentlemen was it the accused who inflicted that injury upon [the complainant]." She further explained (SU19) "you must be satisfied beyond reasonable doubt that the accused was the person who inflicted the injury upon [the complainant]. That is the whole crux of this case and of course for you to decide that the Crown has proved beyond reasonable doubt of the truth and reliability of the evidence given by [the complainant] because she is the only person who has identified the accused." 94. The judge summarised her evidence, that of Mr Porter, Ms Raper (the ambulance officers), Mr Magele, Mr Sleiman (security officers) Ms Paine (the bar manager) Heidi (the niece) and Ms Roberts (the bar attendant). She also referred to the appellant's denial of being at the Club at the time of the incident. 95. The judge then embarked upon a series of directions as to the identification evidence and to the need to approach it with special caution before accepting it as reliable and the reasons why that was so. She reminded the jury: (a) the incident occurred in a nightclub with 300-350 people present between about 1.30am to 2.00am. (b) 90 per cent of the young men there were of Lebanese background with most of those young men having dark hair and wearing dark or black clothing and being between the ages of 20-30 years. (c) Most of the young men had short dark hair, either clipped very short on the sides or very short on the top and some facial hair. Most were wearing jewellery. (d) The lighting was dim around the general bar area; there was music, noise, dancing and movement everywhere. 96. The judge directed the jury to have regard to how long the complainant had her attacker in sight. The judge discussed the evidence as to this and pointed out that the incident may not have taken five to ten minutes. The judge directed the jury to have regard to the complainant's identification of the photo number 13 as being of the appellant and that that photograph showed only the head of the appellant. It showed a person who was clean shaven whereas the complainant said that her assailant had a goatee. The judge continued at (SU36-38) "You should have regard to the drawbacks perhaps of identification of just a photograph of the face of a person. A photo does not give any indication of the build or the height of the person, you are unable to see the person side on, you are unable to see the person standing or moving, it is a black and white photograph, you do not know, have any ideas of the colour or whether the person has dark skin or not dark skin because it is black and white. These are matters which are inherent unfortunately in the identification by photograph, so those are matters which you must have regard to apart from the circumstances in which she said this offence occurred. You must have regard to the problems associated with identifying someone purely by photograph when they have only seen them in the circumstances of which she gives evidence in that nightclub that night for a relatively short period of time and as I have said the photograph number thirteen would appear to show slightly different hair and certainly it is a clean shaven photograph. You have, of course, the evidence that she made that identification within a relatively short time because she gave it on 17 April, this occurring in the early hours of 14 April. You have her description that she gave to the police of which I will just remind you because it was given in her evidence, it was quoted to her in cross-examination but she told the police that he was of dark skinned, dark short hair which was gelled back, bushy eyebrows, Lebanese, about twenty-five years, slouched posture, wearing all black with a jacket, thick chain around his neck and a thin shaved goatee. As I said here her description was dark skinned, hair black slicked back with gel, thin goatee, bushy eyebrows, clothing all black all that I could see and the jacket and the black pants with a thick chain around his neck and 25 years of age. You have also of course the photograph on the key ring which is exhibit C. a photograph that the accused said was taken that night around about midnight or somewhat around there with this young man Abdul, a young man whom nobody seems to know who he was because he has not been able to be identified by the police but however he said that was him that night and that was what he was wearing that night. In that photograph you will see that he is wearing not all black as in a T-shirt or shirt underneath, he is wearing a black jacket from what you can see from the top of him. But he is wearing a different lighter coloured shirt which he said was light grey. That is a matter for you, you also would have regard to the fact that he was not wearing a chain around his neck. You have the evidence from Miss Moggio that she could well have been mistaken about the chain because all of them were wearing jewellery. That is another reason for great caution because when she says all of them were wearing jewellery, and I come back to what I have said to you before that in this nightclub of all of those patrons, even on her own evidence would seem to be amongst this group in any event, dressed in a form of uniform, they were all wearing dark clothing and dark hair and jewellery." 97. The judge then dealt with the previously mentioned contention of the appellant as to the alleged displacement effect of the key ring photograph. 98. After the morning adjournment and towards the end of her summing-up the judge said: "I just want to just go back to that area where I was speaking to you about the special caution that you must have when you're looking at the identification evidence and deciding whether it is reliable. I told you of a number of things that you must have regard to that is the number of people there, the lighting the fact it was a nightclub atmosphere of noise and music and movement and dancing, and have an assessment of how long Miss Moggio would have had her assailant under her observation as well as the drawbacks as I've said of the identification process itself of the photograph which doesn't give you a full view of the person and certainly not the same as seeing someone in person. However, there was one matter which I did overlook which is probably a very important aspect, and that is that the person that Miss Moggio was identifying as being the accused was she identifying a person that she had never seen before, ever. And she said she'd never seen this person before. So that is a matter which you must consider amongst all of those other matters that I've pointed out to you which would cause you to have careful consideration of all those matters when deciding whether the evidence of identification is reliable. Because I remind you again that is the only evidence which implicates the accused in this crime." 99. At SU45 it was again mentioned that the jury must consider the complainant's identification in the light of the difficulties. 100. The judge summarised the appellant's evidence and the submissions of his counsel including that the jury must be extremely careful in accepting the complainant's evidence "because of these extreme dangers that are present in identification evidence" and they were listed. The judge summarised counsel's argument, "The reliability of her evidence was also affected by what the ambulance officers and Miss Paine have said that she said to them following the event, as well as what Det Nolan's evidence was as to what he understood she was saying when she identified number 11. Det Nolan says that she really did not know who had smashed the glass. The judge listed at length some other aspects on which the appellant relied to contend that the complainant's evidence was unreliable. Senior Counsel's catalogue of the defects with the identification evidence was almost the last matter covered by the judge before the jury retired. 101. After retiring the jury requested that the appellant's evidence be replayed and that was done. 102. The appellant complained that the judge did not refer to the evidence of Det Nolan in which he records the complainant as having said, "You know that I didn't see who smashed me in the face" (T142.35). The remainder of that answer was "I still remember that person I had the conflict with." Counsel for the appellant requested the judge to go to the transcript prepared by Det Nolan. That transcript was not admitted in evidence nor placed before the jury as an aide memoir. 103. The judge directed the jury: "Ladies and gentlemen Mr Bellanto is now going to ask some questions of this officer about a transcript that this officer prepared of what this officer thought he heard being said by watching and listening to the video. Now the evidence of what Ms Moggio said when she saw those two images, number 11 and number 13, is what you hear yourself on the tape, on the video, a matter entirely for you. Somebody else writing a transcript up is only their view of what they thought they heard. You might hear something totally different to what is on there. You must understand the evidence is what you hear on that tape. It may assist you in the evidence to hear from the officer, but you must understand that is only his view of what he heard or what he thought he heard. It is what is on that tape which is the evidence that you will be having regard to." 104. It was difficult to ascertain the terms of what was being said on the tape by the complainant. There was no agreement at the trial as to the terms of the tape. The judge was correct in telling the jury that the evidence was what they heard, 105. The Crown Prosecutor on the hearing of this appeal submitted that the complainant said, after being shown photo 11, "I still haven't seen the guy who was trying to put the cigarette … you know that I didn't see who smashed me in the face; I'm just telling you about the person I had the conflict with." 106. The evidence establishes that the complainant was engaged in conflict with a man who was very close to her and had a glass in his hand and that as she turned away and was side on she was struck in the face by a glass wielded by that man. She did not actually see that man strike her. On her evidence the inference was inescapable that the man with whom she had been in conflict struck her. She identified the appellant as that man. 107. As the judge had earlier explained the use which the jury could make of the tape, that she was not bound to refer to Det Nolan's opinions as to what the tape said, in part. In his closing address Senior Counsel for the appellant referred to Det Nolan's opinion as to what the tape said (T201) and the complainant's denial, using words to the effect of those suggested. Senior Counsel correctly said that the jury would hear for itself what she said on the tape and decide the matter for themselves. The jury may have thought that too much emphasis was being put on the tape and what she is recorded as saying and that while she had not seen the appellant strike her with the glass the inescapable inference was that he was the man who had done so. 108. The appellant submitted that the complainant expressed "significant degrees of uncertainty at the time of selecting the appellant's photograph and that this was overwhelmingly important in assessing the reliability of her evidence. The evidentiary materials do not support the contention that the complainant expressed significant degrees of uncertainty as to her assailant at the time of selecting the appellant's photograph. That is to read too much in the alleged comment that she did not see who smashed her in the face and to place too little weight on the circumstances which existed and the compelling inferences which arose. 109. The general and specific directions which the judge gave as to identification were adequate. The special caution which the jury had to exercise before accepting the identification evidence and the weaknesses in it were sufficiently stated by the judge. 110. Appeal Ground 6 reads: "The verdict of the jury is unreasonable having regard to the evidence: s.6(1) Criminal Appeal Act 1912 . The circumstances of the victim's observation, her statement to Ms Paine that she did not see who hit her, the complainant's statements to police of uncertainty in the observation she made of the offender, the existence of a 'displacement effect' problem and the discrepancies in the description are factors which in their cumulative effect render the evidence of identification unreliable." 111. The appellant emphasised that his photograph was put in the group of 20 shown to the complainant because he was in the nightclub during the time that the complainant was there. Further, the police had received information suggesting that the appellant was the assailant. This was not a random selection of 20 photographs. 112. The appellant relied on the totality of the matters which tended to diminish the reliability of the complainant's evidence generally on the question of identification, namely: (a) the very limited time which she had to observe the face of the person who assaulted her (b) the large number of males in the club, many of them similarly dressed and of generally similar appearance (c) her statement to Ms Paine that she did not see anything (d) the information conveyed to the ambulance officers,. apparently by the complainant that the glass had been "thrown" at her (e) the discrepancies in the description of the appellant on the night in question (f) the uncertainty expressed by the complainant in her conversation with the investigating police. 113. I have earlier expressed views on these matters and the displacement effect argument. The time which she had to observe the face of her assailant, while limited, was nevertheless adequate. He was very close to her. There were a large number of males in the club, many of them similarly dressed with short dark hair and of Lebanese extraction. 114. The remark "No I didn't see anything" was in response to the question "Did you see who it was". The complainant, as earlier explained, did not see her assailant strike her. 115. I have earlier dealt with the evidence of the ambulance officers. Mr Porter believed the security staff told him what happened and Ms Raper's evidence did not mean that the glass was thrown from some distance. The discrepancies in the description of the appellant could reasonably be regarded as not being of consequence. I do not agree that the complainant evinced uncertainty. 116. This was a case where to apply the test in M v The Queen (1994) 181 CLR 487 at 493-494) (as confirmed in MFA v The Queen (2002) 213 CLR 606) upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Appeal Ground 6 should be rejected. 117. I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence refused. ********** Last Modified: 12/21/2004 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.