New South Wales Court of Criminal Appeal CITATION : REGINA v CHAMI, M SKAF, GHANEM, B SKAF [2004] NSWCCA 36 revised - 29/04/2004 HEARING DATE(S) : 20, 21 and 22 October 2003 JUDGMENT DATE : 7 April 2004 JUDGMENT OF : Mason P at 1; Wood CJ at CL at 1; Sully J at 1 DECISION : Mahmoud Chami: Appeal dismissed; Bilal Skaf: Appeal dismissed; Mohammed Skaf: Appeal dismissed; Mohamed Ghanem: Appeal allowed - new trial ordered CATCHWORDS : Criminal law - sexual offences - refusal to order separate trial - late disclosure of witness statement of co-offender - identification issues - directions as to consciousness of guilt - prosecutor's comment on accused's failure to give evidence - directions on standard of proof - "beyond reasonable doubt" should not be enlarged upon - complainant's reliability - directions about lies - whether verdicts unreasonable. - (D) LEGISLATION CITED : Evidence Act, ss 20(2), 44, 135, 137 Bataillard v The King (1907) 4 CLR 1282 Blick (2000) 111 A Crim R 326 Dhanhoa v The Queen (2003) 77 ALJR 1433, [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193 Green v The Queen (1971) 126 CLR 28 Kawicki (1995) 82 A Crim R 191 Peterson v The Queen (1979) 41 FLR 205 Pitkin v The Queen (1995) 69 ALJR 612 Queen's Case (1820) 2 Brod & Bing 284, 129 ER 976 R v Blanch, CCA unreported 17 August 1988 R v Burt [2003] NSWCCA 248 R v Ho (2002) 130 A Crim R 545 CASES CITED : R v K (1991) 161 LSJS 135 R v Lewis-Hamilton (1997) 92 A Crim R 532 R v Li [2003] NSWCCA 386 R v Lucas [1981] QB 720 R v Markuleski (2001) 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 R v Reeves (1992) 29 NSWLR 109 R v Solomon, CCA unreported 15 November 1989 R v Southammavong [2003] NSWCCA 312 R v Sutton (1986) 5 NSWLR 697 Thomas v The Queen (1960) 102 CLR 581 Verma (1987) 30 A Crim R 441 Zoneff v The Queen (2000) 200 CLR 234 REGINA Mahmoud CHAMI PARTIES : Mohammed SKAF Mohamed GHANEM Bilal SKAF FILE NUMBER(S) : CCA 60314/03; 60323/03; 60181/03; 60402/03 Crown: D Frearson/ D Arnott Appellant: (M Chami) P Byrne SC COUNSEL : Appellant: (M Skaf) S Odgers SC/ H Dhanji Appellant: (M Ghanem) T A Game SC/ M Buscombe Appellant: (B Skaf) P Zahra SC Crown: S Kavanagh (Director of Public Prosecutions) Appellant: (M Chami) Andrews SOLICITORS : Appellant: (M Skaf) W H O'Brien Appellant: (M Ghanem) Murphys Lawyers Appellant: (B Skaf) Galloways LOWER COURT District Court JURISDICTION : LOWER COURT DC 01/11/1201; 01/11/0901; FILE NUMBER(S) : 01/11/0974; 01/11/1188 LOWER COURT Finnane DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60314 of 2003 CCA 60323 of 2003 CCA 60181 of 2003 CCA 60402 of 2003 DC 01/11/1201 DC 01/11/0901 DC 01/11/0974 DC 01/11/1188 MASON P WOOD CJ at CL SULLY J Wednesday 7 April 2004 REGINA v Mahmoud CHAMI REGINA v Mohammed SKAF REGINA v Mohamed GHANEM REGINA v Bilal SKAF SUMMARY The appellants appeal against convictions following their joint trial in the District Court before Judge Michael Finnane QC and a jury. The jury returned guilty verdicts on most of the Counts each appellant was charged with. The charges relate to a series of sexual assaults at various locations in south western Sydney that occurred in the evening of 30 August 2000. The victim of these assaults was Ms T, then aged 18. The appellants were aged between 17 and 18. The offences took place at the Marion Street car park toilet block, the car park of the Bankstown Trotting Club and an industrial estate at Chullora. 1. GROUNDS OF APPEAL MOHAMED GHANEM was charged and convicted of one count of detain for sexual advantage and four counts of aggravated sexual intercourse without consent. He was convicted on three of these counts and the trial judge directed a verdict of not guilty on the fourth charge. He argued seven grounds of appeal (see page 30 for each ground of appeal) including that Judge Finnane should not have allowed telephone intercept evidence to be admitted (Ground 3); and that his directions concerning this evidence were wrong (Ground 4). He also argued that he should have had a separate trial (Ground 5). The Court upholds Grounds 3 and 4. These grounds are linked and the Court finds that Ground 4 entitles Ghanem to a new trial (see paras 189 – 190). Grounds 3 and 4 concerned two telephone calls Chami made to Ghanem whilst Chami was interviewed by police. The calls were intercepted by the police. Transcript of the calls was tendered at trial. During these two calls Chami made incriminatory statements concerning himself (see paras 171 –174). The substance of Ground 3 was whether Chami's statements also incriminated Ghanem (see para 173). Ghanem submitted that Judge Finnane should not have allowed the telephone call evidence to be admitted against him on any basis. Judge Finnane ruled that the evidence was admissible to show Chami's consciousness of guilt but could not be used for this purpose in relation to Ghanem. Nevertheless, in his reasons Judge Finnane said the evidence was available to show 'close association' or 'deep interest…' or 'an association between two people having an interest …' (see para 175). Ghanem argued that the ruling by Judge Finnane was tantamount to an endorsement of guilt by association. The Court agrees with Ghanem's submission. The Court finds that Chami's paramount concern during the telephone calls was for himself. Ghanem gave him a sympathetic ear (the friendship between the men had been established at trial and was not in dispute), but Ghanem did not adopt Chami's inculpatory statements or otherwise implicate himself. The evidence was therefore not relevant to any case against Ghanem (see para 177). The Court finds that this evidence was unfairly prejudicial and outweighed any probative force. The Court compared this situation to a person who visits a friend in gaol. It would be wrong to infer from this alone that the association is improper (see para 178). Ground 4 of the appeal concerned directions given by Judge Finnane to the jury about the telephone intercept evidence. The Court finds that a part of the Crown's directions to the jury misrepresented the telephone conversations and this made it even more important for the jury to be directed against using the intercept evidence to infer consciousness of guilt. No such directions were given (see para 184). The Court upholds this ground of appeal especially since it is linked to Ground 3. MAHMOUD CHAMI was charged and convicted of one count of detain for sexual advantage and one count of aggravated sexual intercourse without consent. He argued eight grounds of appeal. Each ground fails. Broadly speaking his grounds of appeal concerned how Judge Finnane conducted the trial (see pages 29 – 30 for each ground of appeal). BILAL SKAF was charged and convicted of two counts of aggravated indecent assault; two counts of aggravated sexual intercourse without consent and one count of detain for sexual advantage. He was also charged with two counts of attempting to pervert the course of justice to which he pleaded guilty during the trial. The jury could not agree on a further count of aggravated sexual intercourse without consent. He argued four grounds of appeal. Each ground fails. The grounds included that the jury's verdicts were unreasonable and inconsistent with the evidence (see pages 30 and 31 for each ground of appeal). MOHAMMED SKAF was charged and convicted of two counts of detain for sexual advantage and two counts of aggravated sexual intercourse without consent. Mohammed SKAF argued nine grounds of appeal. Each ground fails (see pages 31 – 32 for each ground of appeal). The appeals included that Judge Finnane gave incorrect directions and warnings to the jury and miscarriages of justice occurred because some of Judge Finnane's directions unfairly prejudiced Skaf or that Judge Finnane lacked balance. 2. FORMAL COURT ORDERS The appeals against conviction of Mahmoud Chami, Bilal Skaf and Mohammed Skaf are dismissed. Mohamed Ghanem's appeal is allowed, his conviction and sentence are set aside and a new trial is ordered. **** IN THE COURT OF CRIMINAL APPEAL CCA 60314 of 2003 CCA 60323 of 2003 CCA 60181 of 2003 CCA 60402 of 2003 DC 01/11/1201 DC 01/11/0901 DC 01/11/0974 DC 01/11/1188 MASON P WOOD CJ at CL SULLY J Wednesday 7 April 2004 REGINA v Mahmoud CHAMI REGINA v Mohammed SKAF REGINA v Mohamed GHANEM REGINA v Bilal SKAF Judgment 1 THE COURT: The four appellants were tried together in the District Court before Judge Finnane QC and a jury. 2 The charges related to a series of sexual assaults at various locations in south western Sydney that occurred in the evening of 30 August 2000. Ms T, the complainant, was aged 18. The appellants were aged between 17 and 18 at the time. The Crown case 3 The complainant boarded a train at Belmore, intending to go to Lidcombe. She was sitting reading when approached by a group of five young males. The Crown case was that these men were: • Mohammed Skaf , the appellant • H , a pseudonym for a person whose name has been suppressed • Tayyab Sheikh • Mohammed Sanoussi • Mahmoud Sanoussi 4 Mohammed Skaf was described by the complainant as wearing a yellow jumper and having a really big nose and curly short hair with blond streaks. He sat in front of the complainant and engaged her in friendly conversation. Having ascertained that she had tried marijuana he asked her if she wanted to smoke some with them. She agreed to do so and to continue with the men to Bankstown Station. She told them that her name was "Amanda", which was untrue. 5 During the train ride some of the males touched her suggestively. In Ms T's words, the man in the yellow jumper had "tried to touch me a few times… but I didn't really think that much of it… I remember him in particular saying that I had nice legs". 6 Closed circuit television at Bankstown Station provided video evidence corroborating the arrival of the group and assisting identification to some degree. The complainant is seen on the platform with five males, the male in the yellow jumper holding his arm around her as they walk off the platform in a group. 7 The complainant sent a mobile text message to her friend Leah Nightingale and told her to call her. When Leah rang back, the complainant made it sound as if she was talking to her sister, that their mother had been in an accident and that she had to go home. The complainant said that she was starting to feel nervous and that she wanted an excuse to go home without antagonising the men. The other males "had sort of gotten a bit more gropey, they were trying to touch me a lot more and I was starting to get a bit nervous about them" (Tr p47). (See also Tr pp133-5, 437) 8 The male in the yellow jumper took Ms T's phone and started speaking to Leah. He told her "I'll have her home in ten minutes" and hung up on her. He then placed the phone down the front of his pants. The complainant asked for her phone back and was told "No. I'll give it back to you after we've smoken". 9 The complainant's friend Leah corroborated this evidence about the disguised phone call and the complainant's nervous or panicky state (Tr pp455-6). She said that she was told by the male speaker "Listen bitch, your sister will be home in ten to twenty minutes." He refused to let Leah speak to the complainant and hung up. When Leah phoned back the phone was switched off. By this time three of the five males had moved away. The complainant remained with the male in the yellow jumper (Mohammed Skaf) and a male with badly streaked hair. They walked her to the nearby Marion Street car park. 10 The male in the yellow jumper went into the toilet block for a couple of minutes. He came back out and said "You're up". The male with the streaked hair had been talking to the complainant in the meantime and he had asked her if she did threesomes: she told him "No, I don't do things like that". 11 The complainant followed the male in the yellow jumper into the toilet block. He took her mobile phone out of his pants, held it up in the air and said "You won't get your phone back until you fuck me". She replied "Fuck the phone, I'm going home" and she tried to get out. She pushed the door to get out, but did not realize that it opened the other way. She heard voices from the outside and assumed that the other males had been holding the door closed. 12 The male reached for her shoulders and she dodged him to get away and found herself further away from the door. She was now near the toilet. The male approached her and pushed her up against the tiled wall, turned her around and pulled down her skirt and underwear. This was the basis of Count 1 against Mohammed Skaf – detain for sexual advantage. 13 The male told her "I'm going to fuck you Leb style". He put on a condom (which had been purchased when he had entered a pink building housing a sex shop on the way between the station and the car park). 14 Mohammed Skaf stood behind her, pinning her up against the wall and penetrated his penis in her vagina. At the time she heard the other males outside. When he finished it seemed to the complainant that he was not allowed to get out of the cubicle without communicating (in Lebanese) with the men on the outside. This assault, in the company of others, was the subject of Count 2 against Mohammed Skaf – aggravated sexual intercourse without consent. 15 The complainant was thereafter subjected to a series of sexual assaults in the toilet from the males she had met on the train, with the exception of H. During this time she heard her mobile phone's ring tone. The male in the yellow jumper had earlier placed it back in his pocket (Tr p56). 16 The assaults in the toilet (after that involving Mohammed Skaf) first involved an incident in which two males entered the toilet block. The complainant was lifted down from the toilet seat by one of them, who pulled down her skirt and underwear, pushed her up against the wall and placed his finger into her vagina. He then wore a condom and placed his penis into her vagina. After this, the man alleged to be Mohammed Sanousi entered as the complainant was fixing herself up. She had fallen to her knees. He said "you're in the position to suck my dick" and he put his penis into her mouth. She tried to pull away. He grabbed her hair and moved her head around his penis all the way down her throat which made her gag. When this male left, the one with the "badly streaked hair" returned. He sat on the toilet, opened his legs and pulled down his pants. He grabbed the complainant and forced his penis into her mouth. She was still in a kneeling position. 17 Evidence was led that H, Tayyab Sheikh, Mohammed Sanoussi and Mahmoud Sanoussi had also been charged and were being dealt with in other proceedings. 18 The evidence of these other sexual assaults in the toilet was led without objection and was not the subject of any cross-examination. It was obviously relevant to the issue of consent as regards what followed, and debatably as regards what preceded it (see below: Mohammed Skaf's ground of appeal). 19 The complainant was left on her own inside the toilet. She cried. She then got dressed, washed herself and walked outside. A dark-skinned woman in her early thirties approached her and asked if she was OK. The woman asked if she had any money. Believing that the woman was offering help, the complainant gave her $20 expecting her to call a taxi. The woman told the complainant "You know this is a bad area, you should have known better". She put her arm around the complainant and led her to a nearby area where there were a group of males outside a black car. The complainant noticed the male with the large build (H) and a couple of males who had been with her earlier. Two of the males then left with the woman. Mohammed Skaf was also there. The complainant asked him where her phone was and he said that "his mate George had it and that he would come back with it in a few minutes". He left and did not return (Tr p61). 20 Thinking that she was safe, the complainant got into the black car containing two previously unencountered males and H. The complainant described it as a black two door hatchback that looked new. She thought she would be taken to the police. There was talk about retrieving her phone. H left the car and spoke to Mohammed Skaf, returning with the complainant's SIM card. He said that they could not get her phone back. As the black car drove off from the area, the complainant saw the male in the yellow jumper (Mohammed Skaf) and the male in the orange jumper (Mohammed Sanoussi) sitting in a hot food shop. The black car was driven from the Marion Street car park to Bankstown Trotting Club, stopping en route to buy food at McDonalds. It was near to dusk when they got to the Trotting Club. 21 H committed a further sexual assault on the complainant near a shed in the deserted car park. After this, the black car reappeared and its driver told the complainant that he would take her home. She trusted him and got into the front passenger seat. He then forced his finger into her vagina. Later he required her to climb into the back seat where he undressed her and had forced penile vaginal sex. After this another man who had been a passenger in the black car got into the back seat and had forced oral sex. 22 The complainant tried to get out of the car after she had fixed herself up. Someone held the door closed and told her "wait in here" (Tr p72). 23 The complainant then saw a red car drive into the car park of the Bankstown Trotting Club. There were four males in that car. The complainant had not seen them before. The driver and passenger from the black car went up to the males in the red car and they appeared to talk to each other. The driver of the black car returned and opened the passenger door to let the complainant out saying "You're going with these guys. They're going to take you home". 24 The complainant got into the red car believing what she had been told. She got into the middle of the back seat. It was the Crown case that the men in the red car were: • Mahmoud Chami (the driver and, for this the Crown relied mainly on Chami's admission in his ERISP of 13 October 2000). He was described by the complainant as having short, cropped hair, bushy eyebrows, bulging eyes and he was wearing a big black jacket. • Mohamed Ghanem (the front passenger, and for this the Crown relied on the complainant's subsequent identification of Ghanem from a photoboard). He was described by the complainant as having his hair in a pony tail which had curls and was blondish at the ends and he was wearing a Hawaiian shirt and bone coloured cargo pants. • Bilal Skaf (the back passenger, sitting to the left of the complainant, and for this the Crown relied on the complainant's subsequent identification of Bilal Skaf from a photoboard). He was described by the complainant as calling himself "Sam" , with dark eyes, short dark hair, bushy eyebrows and he was wearing a grey Adidas jumper. The complainant said that she remembered "something about gold, a gold necklace or gold" (Tr pp77, 386). He was often referred to as "Adidas Sam" in later evidence. • A fourth unidentified male (the back passenger, sitting to the right of the complainant). He was described by the complainant as having short curly hair with blonde or gold on the tips and wearing a grey Nike jumper. He also called himself Sam. 25 The red car was driven to a townhouse complex where it stopped for a few minutes while the driver got out and entered a house. The house was subsequently identified by the complainant as being opposite Chami's house. Count 3 charged Chami, Ghanem and Bilal Skaf with detaining for sexual advantage. This count spanned the luring and detaining of the complainant in the red car in the circumstances set out below. 26 As the complainant was being driven in the red car the two males sitting on either side of her in the back seat started to touch her. They touched her upper thighs and legs and her left breast. Count 4 charged Bilal Skaf with aggravated indecent assault in relation to the touching of her breasts. They also grabbed her hands and put them around each of their exposed penises and moved her hands up and down. They prevented her from pulling her hands away. Count 5 charged Bilal Skaf with an aggravated act of indecency in relation to this incident. 27 The two Sams then started pulling up her skirt and took turns in putting their fingers into her vagina. Afterwards they both did it together at the same time. Count 6 charged Bilal Skaf with aggravated sexual intercourse without consent. 28 The complainant was crying during these assaults. She was scared that the men would rape her and thought that they would take her home if she did what they wanted. The complainant said that the front passenger was turning around and watching the activities of the two men beside her. 29 The car was then driven to a service station not far from the townhouse complex. The front passenger (Ghanem, on the Crown case) got out. The complainant attempted to climb out of the car from the front seat. The driver (Chami) grabbed her left shoulder and pushed her down. He opened the glove box and "took a weapon and held it to my head". The complainant felt "cold metal" and thought it was a gun, though she did not see it. The driver told her "don't move bitch or you're dead". He then put the weapon back and the front passenger returned to the red car. 30 The complainant was then driven to an industrial estate in Chullora. Everybody except the driver got out of the car. The two males who had been sitting in the back seat held the doors so the complainant could not get out and the driver got into the back seat. It was dark by this time. 31 The driver of the red car unzipped his pants when he sat next to the complainant in the back seat. She said "You're not going to do it too?" and he said "Fuck me". He put a condom on his penis, pushed the complainant on to her back and pulled up her skirt. He pulled down her underwear, spread her legs open and had penile vaginal intercourse with her. She was crying at the time. Count 7 charged Chami with aggravated sexual intercourse without consent. During this incident the complainant recalled that a blanket was placed over the car. 32 The driver got out and the male with the pony tail who had been the front passenger came inside the red car. The male said "he wanted a little bit of head before he fucked" and he pulled down her shoulders so that she was almost on all fours. He grabbed her hair and forced her face towards his penis. She tried not to let it go in her mouth and he pulled her even harder and put his penis into her mouth. She bit down on it and he slapped her across the top of her head. He grabbed her hair and forced his penis further down her throat and she started to gag. Count 8 charged Ghanem with aggravated sexual intercourse without consent. 33 This male then pushed the complainant's head back. She sat back up in a kneeling position. He made her sit on him and he had vaginal sex. She was crying at the time and she believed that a condom was used. Count 9 charged Ghanem with aggravated sexual intercourse without consent. The complainant recalled looking at this male's face, and she remembered that he "was actually good looking" (Tr p83). 34 When that male left the car the unidentified "Sam" wearing the grey Nike jumper came inside and forced his penis into her mouth. 35 The male called "Sam" in the grey Adidas jumper (Bilal Skaf, on the Crown case) then came into the car. The complainant was crying and he pushed her legs open, straddled her and placed his penis into her vagina. Count 10 charged Bilal Skaf with aggravated sexual intercourse without consent. 36 The male with the pony tail came back via the left side of the car. The complainant was sitting in the middle, crying. He grabbed her shoulders and forced her onto all fours. He unzipped his pants and forced his penis into her mouth. Count 11 charged Ghanem with aggravated sexual intercourse without consent. 37 Not long afterwards, this male yelled out "How about a threesome" and the male called "Sam" in the grey Adidas jumper reentered the car and put his penis into the complainant's anus while she was on all fours. At the same time the male with the pony tail had his penis in her mouth. Count 12 charged Bilal Skaf with aggravated sexual intercourse without consent in relation to this incident. 38 The Crown originally indicted Ghanem on a further count (Count 13) of aggravated sexual intercourse without consent in respect of the incident referred to in the previous paragraph. Since however the complainant explained in her evidence that when the male with the pony tail had yelled out "how about a threesome" his penis had remained in her mouth throughout that time, the judge later directed a verdict by direction on Count 13 because the offence in Count 11 had not ceased. 39 The complainant said that throughout the sexual assaults in the red car she heard mobile phones ringing and people talking on the phone (Tr p82). Around this time she saw a black car arrive. She said it was "a black car, similar to the first", but was not sure whether it was the same car as the one previously involved (Tr p88). There were three males in it along with the male in the yellow jumper who had first met the complainant on the train and who had also sexually assaulted her in the toilet block (Mohammed Skaf, on the Crown case). She heard the ring tone of her phone, which was a particular song by Eminem (Tr p88). This evidence was used to corroborate the Crown case that Mohammed Skaf arrived at the industrial complex in the black car. (He admitted his presence at the Marion Street toilet block, but disputed that he was at the industrial complex.) 40 The complainant got out of the red car, which was then driven away towards the driveway of the industrial estate where it was hosed down. The black car was parked where the red car had previously been. The complainant attempted to leave and started walking past the red car. She was hosed down by someone from the red car and ended up soaking wet (Tr p89). She started crying and the males laughed. The complainant managed to reach the street but was caught by one of the "new people" and was led back to the industrial estate. By the time she had been walked back she noticed that the red car and its occupants were gone. 41 The male in the yellow jumper came up to her, put his arm around her and led her away from the remaining group of males. He said "I have to talk to you" and she was taken to an area where there was a pile of sacks. Count 14 charged Mohammed Skaf with detain for advantage. 42 This male told the complainant to "Suck my dick again bitch", and she did as she was told because she was scared of getting hurt. She was still crying. (Count 15 charged Mohammed Skaf with aggravated sexual intercourse without consent.) (The complainant volunteered that she had not had oral sex with the male in the yellow jumper at the toilet block (Tr p89) but she adhered to the evidence that the same man was involved in the two separate assaults. This was material relied upon by Mohammed Skaf to challenge the complainant's identification of him as the male in the yellow jumper at the industrial estate.) 43 After this, the complainant grabbed his penis hard and told him to give her back her phone because she wanted to call someone to get her out of there (Tr p89). He called out, "Get the gun, get the gun". Another male (one of the new people not recognized by the complainant) said "Get her phone back". 44 There were other sexual assaults by occupants of the black car. 45 The complainant was told to get back into the black car, which had been driven over to the area with the sacks. She complied. Just before the car pulled out of the driveway, the person in the yellow jumper came up to the driver's side window and passed her mobile through to the person who had just assaulted her. He was seated next to her in the back of the car. He handed the phone to her and told her to put her SIM card in it, which she did. He asked for her phone number because he was going to ring her the next day. He told her to give him the right phone number because he was going to try it there and then to see if her phone rang. She did as she required and the number was successfully tested as she was driven to Lidcombe station (Tr p94). Mohammed Skaf's mobile phone was found to contain the complainant's number listed in it, showing her name as "Amanda", the name she had given on the train. 46 The complainant was then driven to Lidcombe station and was told not to call the police. After being left she started to receive calls on her mobile. One was from her friend Leah, who came to pick her up with Leah's mother. It was now between 10 and 11pm. 47 Before she was picked up she heard her mobile phone ring several times. She "knew it was them" (Tr p96) and didn't answer, except for one call, which came from H to whom she had given her number earlier in the evening (Tr p220). After she was picked up, Leah answered the calls, some of whom were men asking to talk to her and Leah was heard telling them abusively not to contact her. 48 The complainant did not go to the police until the next day because she was too distraught. 49 The jury returned verdicts of guilty on all remaining counts except Count 12 (upon which they were unable to agree) and Count 13 (on which there was a verdict by direction). 50 There were two additional counts (16 and 17) charging Bilal Skaf in relation to attempted perverting of the course of justice. They relate to conduct occurring on 14 November 2000 referred to below. During the trial he pleaded guilty to these charges. The defence cases in brief 51 It is convenient to record the nub of the defence case raised at trial by each accused. 52 Chami's case was that he had oral, not vaginal sex. He did not suggest consent, but raised a mistaken belief as to consent. Chami did not give evidence. 53 Ghanem's case was that he had been wrongly identified and that he had an alibi. He gave evidence at trial. 54 Bilal Skaf gave no evidence at trial. His defence was that he had been wrongly identified. 55 Mohammed Skaf gave no evidence at trial. He asserted consensual sexual intercourse in the Marion Street carpark toilet. And he denied that he was the man in the yellow jumper who assaulted the complainant at the industrial complex. Events prior to the trial 56 When she was left at Lidcombe Station the complainant called her friend Ms Nightingale and reported the assaults to her. She went to the police the next day. 57 The police took photos of the locations identified by the complainant. Unfortunately the toilets at the Marion Street car park had been cleaned. 58 The complainant was medically examined in the evening following the assaults. She gave a history to the doctor. Swabs revealed no DNA evidence. 59 The complainant gave her first statement to the police on 1 September 2000. 60 On 14 September she told Senior Constable Brazel that she had been confused as to the sequence of events in that statement. The officer took six pages of notes during the ensuing conversation. 61 On 21 September the complainant provided a second statement which varied from the first in a number of respects. Her evidence at trial was generally in accord with this second statement. She explained the material discrepancies on the basis of distress and confusion and said that she had been able to put things into correct sequence and make material adjustments as the result of "flashbacks" as she dreamt and thought about her ordeal. Flashbacks in the nature of nightmares led to corrections in her second statement (251, 374ff) which was made with the assistance of a police officer (268). In the first statement there were "a lot of things … out of synch and things were omitted" (395). Needless to say, the complainant was cross-examined vigorously on these matters. In re-examination, the complainant explained her use of "flash-back" as the equivalent of using a videotape to relive or flash-back to the earlier time (Tr p438). 62 The police compiled photoboards each with 15 photos of young men of "Lebanese" appearance. On 26 September the complainant identified Mohamed Skaf as the man in the yellow jumper (Ex C3, photo 14). On 15 November she identified Ghanem (Ex C6, photo 4) and Bilal Skaf (Ex C5, photo 15). The latter two identifications remain in dispute. The complainant did not identify the appellant Chami. 63 The complainant also made positive identifications of "H", Tayyab Sheikh, Mohammed Sanoussi and Mahmoud Sanoussi. 64 Police searches at the homes of the suspects had limited success in locating clothes and jewellery mentioned by the complainant in her descriptions of various assailants. However, on 8 October during a search at the home of Bilal and Mohammed Skaf, police found a yellow, long-sleeved jumper with a "Champion" logo at the bottom of the wardrobe in the brothers' bedroom. 65 It was established that Chami owned a red four-door Toyota Corolla. On 13 October 2000 the complainant identified that car to the police as the car in which she had been assaulted at the industrial estate. No relevant fingerprints were located in the car. 66 Mobile telephones belonging to the suspects were seized. Information obtained from them was used to establish that the young men had each other's numbers coded into their own phones. The police were also able to establish that the phones were used on 30 August 2000 and the approximate location of their use. Evidence was led at trial that calls were made or text messages sent between various phones at critical times. 67 Bilal Skaf and Ghanem were arrested and charged on 6 December 2000. Both declined to be interviewed. 68 Mohammed Skaf was interviewed by the police on four occasions: at 4:16 am and 8:46 am on 2 September 2000, on 7 October 2000 and on 13 November 2000. He was arrested and charged on 7 October 2000. 69 In the first interview on 2 September he told the police that on 30 August he and his family had driven to Canberra with his cousin Tayyab Sheikh. They went to a go-cart racetrack and stayed the night at a Formula 1 motel. He said he had won a certificate for having come third in a go-cart race. During this interview, he was shown video surveillance footage taken from Bankstown railway station on 30 August 2000. He denied that he was the male in the yellow jumper. He denied any knowledge of the complainant and said that he had never had sex in his life. The interview was suspended to arrange an identification parade, but in the second interview that day Mohammed Skaf confirmed that he had decided not to go in a line-up parade because of the time it would take to organise. 70 At the start of the third interview (on 7 October) he said that he had come with proof of his attendance at the go-cart racetrack in Canberra. He again gave details about this trip. He was told that police inquiries revealed that the track was not open to the public on 30 August 2000 and that there was no Formula 1 motel in Canberra. Despite this, he adhered to his alibi. He told the police that he owned a "Champion" brand yellow top, which was at his house. (As indicated, the jumper was located at his house on 8 October 2000.) 71 The fourth interview (on 13 November 2000) occurred after he approached the police. He admitted that he had lied about going to Canberra. This was because he did not want his parents to know that he had had sex with a girl. He admitted that he was the male person wearing the yellow jumper in the video footage from Bankstown railway station. He gave a version of events on 30 August 2000. He and others approached the girl on the train. He asked her whether she wanted to come with them to have a bit of "guys fun". She didn't really mind and agreed in effect to have sex with him so long as his friends would not be around. She got off at Bankstown station. He put his hand around her and they walked up the stairs. There was discussion about him getting condoms which were then bought from a pink coloured adult shop. He and Tayyab Sheikh went with the girl to the car park in Marion Street. It was there that the girl rang her sister in relation to the time she would be home. He denied using or taking her phone. He said that he and the girl went into the toilet block and spoke about how they would "do it". She took off her skirt and sat on top of him as he sat on the toilet seat. He wore a condom and they had intercourse for about a minute. The girl had been happy to have sex. He had closed the door so no one would come in. Afterwards, he walked outside and saw the others outside the toilet block. He told them what he had done with the girl. Tayyab Sheikh then went inside the toilet block. When Tayyab came out, he left with him and they caught a bus. The others said that they would give the girl a lift home. He arrived home at 4:30 pm. His cousins were there, including Ali Skaf and Susan Bakry, as well as Bilal Skaf, Tayyab Sheikh and Tahir Sheikh. He did things and went to various places but had nothing further to do with the girl they had met on the train. Around 11 pm he received a call on his mobile from "H" who said that he and his mates had taken the girl to Flemington markets and that they all "went through her". Mohammed Skaf told the police that the complainant had given him her number when he had first met her, but later in the interview he said that it was after he had had sexual intercourse with her in the toilet that he asked for her number and she gave it to him. He saved it in his mobile phone. 72 On 8 November 2000 counsel appearing for Mohammed Skaf handed the police a piece of paper with the names and phone numbers of people who could support his client's Canberra alibi. These people were interviewed by police and statements were taken. One of the people was Bilal Skaf and his statement was given on 14 November 2000 (Ex C17). That statement did not support Mohammed Skaf's Canberra alibi, but it was to the effect that Bilal had been home all day and that his brother Mohammed had been at home for most of the evening in question, including between 4pm and 5pm and around 8.15pm. During the course of the trial Bilal Skaf entered pleas of guilty to counts 16 and 17 in the indictment (Tr p495). These were charges of perverting the course of justice through making a false statement on 14 November 2000 and of inciting Susan Bakry to make a false statement (in which she corroborated Bilal Skaf's false statement). Over objection, the Crown relied on Bilal Skaf's false statement as evidence of his consciousness of guilt. 73 Chami was interviewed by the police on 13 October 2000 and was thereafter arrested and charged. He told the police that on 30 August 2000 he had been phoned by Bilal Skaf who said that there was "a slut" at the Bankstown Trotting Club who "was going through one guy after another", that his brother was with her, and that he wanted a lift there. Chami drove Bilal Skaf to the Bankstown Trotting Club. On the way Bilal Skaf used Chami's mobile to ring "H". Chami gave differing versions of what followed. One of them was to the effect that the girl consented to have oral sex with him in the back seat of the red car. Chami denied the complainant's allegations of being forced to have sex with other men in the red car at the industrial estate. He also told police that there had not been any gun in his car. [During the trial Chami's counsel did not suggest to the complainant that she consented. It was clarified during submissions that Chami relied upon honest but mistaken belief as to consent: Tr pp1162-8, 1221 cf 1216.] 74 During a break in Chami's interview at about 11:30am Chami made telephone calls from his mobile that were intercepted by police and recorded. Translations of these conversations were tendered, over objection. They were ruled admissible to show a consciousness of guilt on the part of Chami and to show that Ghanem (who was one of the people called) had a "deep interest" in what Chami was saying. This ruling is challenged in the appeal by Ghanem and Chami. The cases at trial in detail 75 Early in the summing up, Judge Finnane provided the jury with a typed summary of the facts arising in the respective cases of the four accused. This helpful document reminded the jury of the particular charges faced by each accused and of the evidence, including exhibits, in the Crown case and defence case (if any) respectively. The list merely summarised the name of any important witness and the number and identity of any relevant exhibit. (a) Chami 76 Chami stood trial on Counts 3 (detain for sexual advantage) and 7 (sexual intercourse without consent in circumstances of aggravation). These related to the events at the industrial estate in Chullora to which Chami had admittedly driven the complainant after he picked her up with Bilal Skaf and others at the Bankstown Trotting Club. 77 There was no photoboard identification of Chami by the complainant. However, he admitted his presence to the police, asserting consensual activity on the complainant's part. 78 Chami did not give evidence at the trial. His case was presented through cross-examination of the complainant and his reliance upon matters raised in his ERISP on 13 October 2000. He also led evidence of good character based on the absence of previous criminal convictions and the testimony of three character witnesses. 79 In effect, Chami denied that the complainant was detained in his red car. He also said that the complainant gave him consensual oral sex, thereby putting the Crown to proof that the complainant had not consented and that he knew or was recklessly indifferent as to her lack of consent. 80 There were three major items of evidence in the Crown case. 81 The first was the evidence of the complainant. That included her account of the sexual assaults at the Marion Street car park toilets, at the Bankstown Trotting Club and in the drive to the secluded industrial estate. During the drive a weapon had been produced by Chami, according to the complainant. These matters were relevant to the issues of detention and lack of consent to any form of sexual encounter by the time she had been brought to the industrial estate. Chami's ERISP squarely raised a claim that the complainant had consensual oral sex with him in the back seat of his car at the industrial estate. However, the issue of consent was not raised in cross-examination of the complainant by his counsel, who merely put it to the complainant that she was not crying and that she appeared to Chami as someone who was willing to have sexual relations with him (Tr pp289-90). The complainant denied these propositions. It was also put to the complainant that no vaginal sex took place, a proposition that she denied (Tr p283). It would have been most surprising if the jury had entertained a reasonable doubt on the issue of consent. In this Court, senior counsel for Chami confirmed that the only issue raised in relation to count 7 concerned Chami's state of mind. 82 The second piece of evidence was Chami's ERISP. It too would not have impressed the jury. Chami said that Bilal Skaf phoned him and told him there was "a slut" at the Bankstown Trotting Club who "was going through one guy after another". Bilal's brother was with her and Bilal wanted a lift there. Chami drove Bilal Skaf to the Club. On the way Bilal Skaf used Chami's phone to contact "H". When they got to the Club the sun had gone down. Bilal Skaf spoke to "H". Then the girl and Bilal Skaf got into his car. Bilal Skaf said "let's go somewhere quiet". As they drove along Bilal Skaf told him "where a good spot is". Chami said "I thought that he just wanted to be alone with her and he wanted to have sex with her or something like that, you know". He heard the complainant saying to Bilal Skaf a few times "take me home, take me home, I need to go home, are you gunna take me home?" Chami described the industrial estate to which they drove as the "Greenacre wrecking yards". 83 Chami's initial version of what happened at the industrial complex was that he let Bilal Skaf and the girl out of the car and drove away, spending the rest of the evening in various vaguely identified locations. 84 The interview was suspended and, upon resumption, Chami agreed that during the interval he had told the interviewing officer that he had not been completely honest about what happened when he arrived at the industrial estate. He then gave a version which involved Bilal Skaf getting out, leaving Chami sitting in the car. Chami "ended up jumping in the back seat". He then gave differing versions of what happened, some involving him initiating the sexual encounter, others suggesting that it was the girl who proposed it. Common to each version was the fact that the couple discussed having sex, but that this idea had been rejected by Chami himself because he did not have a condom. The girl then offered him a "head job" and started to give him one. There was no force. "She wanted to do it, she wanted to do it". Later in the interview Chami agreed that the girl had asked Bilal Skaf to take her home as they drove to the industrial complex. He said "so she must have known that there was something gunna happen as well, and she, and Bill said, yeah, I'll take you home after we're finished". In fact the girl was not taken home by them after they had "finished". After Chami left the car park the black car pulled in and the girl was left in the care of its occupants. Chami gave information in the ERISP about conversations he later had with some of the men in the black car, and what they told him of things they did to the girl after he had gone. He strongly denied that there was anyone but him and Bilal Skaf in the car during the drive from the Bankstown Trotting Club to the industrial complex. He also denied that there was a pistol in the glove box of his car (" If I had a pistol you would have found it today, mate"). 85 The third major piece of evidence tendered in the Crown case against Chami consisted of intercepted telephone conversations that he had with his friend Ghanem and a girl named Kyra during a luncheon recess that occurred during a break in his ERISP on 13 October 2000 and after all of the interview as summarised above had taken place. This evidence went to the jury as indicating Chami's consciousness of guilt, as it certainly did (see Ex C41). 86 Chami led evidence of good character through three character witnesses. (b) Ghanem 87 The Crown case against Ghanem had two main arms. 88 The first was the complainant's evidence, with her photoboard identification that remains the subject of dispute in the appeal. 89 The second plank in the Crown case was the evidence of the two intercepted phone conversations between Chami and Ghanem that are referred to above in connection with the case against Chami. Their admissibility against Ghanem and the use made of them against him in the Crown address and in the judge's summing up to the jury are also raised as grounds of appeal on Ghanem's part. 90 There was phone contact between Chami and Ghanem early in the evening, before the assaults (908-9). Ghanem said in evidence that he had no recollection of the topic of his text message and mobile phone calls with Chami on the evening in question (Tr p1003). 91 Ghanem gave evidence at trial denying his involvement and raising an alibi. He said that he would have been working as an employed paver on 30 August 2000, but he had no recollection of where he would have been working that day. His usual finishing time was between 4pm and 4.30pm. This evidence was supported by the testimony of his employer, although the latter relied upon work records prepared by his wife rather than actual recollection (He had 40-45 employees split into 7 or 8 teams.) 92 As regards the phone call from his friend Chami during the break in the latter's ERISP, Ghanem said in effect that he was merely lending a sympathetic ear to a friend in obvious trouble (Tr pp 981, 1017-8, 1020-1). (c) Bilal Skaf 93 Bilal Skaf stood trial on 8 counts. There were two counts of aggravated indecent assault and one count of aggravated sexual intercourse without consent, each relating to events when he was in the back seat of the red car as it was driven by Chami from Bankstown Trotting Club. There was the count of detaining for sexual advantage relating to the red car. There were two counts of aggravated sexual intercourse without consent involving events in the back seat of the red car at the industrial estate (Counts 10 and 12). As indicated, the jury were unable to agree on a verdict in relation to Count 12. Bilal Skaf was also charged with perverting the course of justice (Counts 16 and 17) and he pleaded guilty to those counts in circumstances already referred to. 94 Bilal Skaf did not participate in a record of interview and he led no evidence at his trial. His defence, in effect, was that he had been wrongly identified by the complainant. 95 There were four major items of evidence in the Crown case. 96 The first was the evidence of the complainant, including the associated evidence relating to her photoboard identification of this accused. 97 Secondly, there was the evidence about Bilal Skaf's false statement to the police about him being at home all day that went the jury as evidence of consciousness of guilt . 98 Thirdly, there was evidence that Bilal Skaf used his phone from the area of the Chullora industrial estate at the critical time (shortly after 9pm). 99 Fourthly, there were telephone intercepts of calls made by or to Bilal Skaf in October-November 2000 (Ex C42, C43). They reveal Bilal Skaf discussing with Mohammed Skaf and Tayyab Sheikh what the police should be told about Mohammed and Bilal Skaf's movements on the day of the offence. At one stage Bilal Skaf tells Tayyab Sheikh "Don't tell 'em where I was, just watch what you say." In a later conversation with a female, he says "[They can't catch me] no way [they can catch me]" (the words in square brackets being spoken in Arabic). (d) Mohammed Skaf 100 Mohammed Skaf stood trial on four counts. There were counts of detaining for sexual advantage and aggravated sexual intercourse without consent that related to events in the toilet at the Marion Street carpark. His defence was that the complainant consented to the sexual encounter that took place there. 101 There were two similar counts relating to the events at the industrial estate. The appellant said that he had been wrongly identified. 102 The major items of evidence in the Crown case against this accused were the evidence of the complainant; the evidence of consciousness of guilt evidenced by the false alibi relating to the go-cart visit to Canberra; and the mobile phone evidence. (Tr 424) 103 Mohammed Skaf did not give evidence. He relied on his ERISPs. 104 The complainant's evidence that she was forced to have sex in the toilet drew support from her friend Leah's corroboration about the coded message to "sis" about their sick mother and this appellant's abusive interruption of the call when he snatched away the complainant's mobile phone. The evidence of complaint to the friend and the doctor also supported the Crown case against Mohammed Skaf. 105 The complainant was cross-examined on the basis that she consented to sex in the Marion Street toilet. She was confronted with her first statement in which she said that she got off at Bankstown because her phone was taken from her on the train. Her second statement and her evidence was to the effect that she got off because of an arrangement to smoke marijuana and that her phone was taken by Mohammed Skaf at Bankstown. She explained the discrepancy on the basis of her distress and confusion in the early days after the repeated assaults. 106 It was put to her that she was wrong in saying that the man in the yellow jumper that assaulted her in the toilet also assaulted her at the industrial complex. The complainant adhered to her evidence that the same man was involved in both incidents. In doing so she referred to his yellow jumper and his face (Tr pp206-7). 107 Particular issues raised about the complainant's identification of Mohammed Skaf as the man involved in the assault at the industrial complex included her early statement that there was "USA" on the yellow jumper; the fact that she was emotionally and physically shattered by the time she got to industrial complex; and her evidence that the man in the yellow jumper at the industrial estate had said "suck my dick again" (Tr pp207-219, esp 218). 108 Vital pieces of corroborative evidence locating Mohammed Skaf at the industrial complex related to his operation of the complainant's mobile phone there (using his SIM card), his returning the phone to her there and his making a call to the complainant while she was in the black car being driven from the industrial complex to Lidcombe station after the final assaults (see below). Mobile phone evidence 109 There was a body of documentary and oral evidence tendered to show that phone calls or text messages were sent on the evening in question by the complainant, and by and between young men (including the appellants) involved that evening. Such evidence was also tendered to show the use that Mohammed Skaf made of the complainant's phone that he took from her. See Ex C2, C23-C31, C35-36 and the evidence of the witnesses Porta, Walke, Dagg, Stark, Hayes and Simmons. 110 Each appellant had each other's names and numbers stored in the memory of his own phone(s). The Skaf brothers also had the name and number of Tayyab Sheikh. Tayyab Sheikh had the names and numbers of Bilal and Mohammed Skaf as well as Ghanem. "H" had Mohammed Skaf, Tayyab Sheikh and the name and number of the complainant listed. 111 As indicated, the complainant said that Mohammed Skaf took her telephone shortly after their arrival at Bankstown Station. The SIM card from that phone was given back to her by H shortly after she got into the first black car at Bankstown. H had been seen to get it back from Mohammed Skaf. Mohammed Skaf's SIM card was used in her phone from the Chullora industrial estate area until the phone itself was returned to her there shortly before she was released. On her evidence it was given back to her from the man she identified as Mohammed Skaf who had worn the yellow jumper. 112 The complainant's evidence was firm that it was "the person with the yellow jumper [who] had returned" (Tr p88) and who committed further offences at the industrial estate. She said that he was the person who had assaulted her in the toilet and that she first met him on the train. She corroborated this by reference to hearing the ring tone of her own phone ("Real Slim Shady" by Eminem) when she was at that location (Tr p88) and by her evidence that the phone that Mohammed Skaf had taken from her at Bankstown was returned to her by him at the industrial estate. 113 Evidence from witnesses employed by Vodafone produced maps (Exx C30, C36 and C39) showing various sectors. Technical evidence was able to demonstrate that particular phone calls were made to and from persons using phones in particular sectors. 114 The critical sector evidence related to calls made or received within the Greenacre cell (2116), that included sectors 21163 and 21168. 115 Sector 21163 served calls made to or from the area that included Valentia Street, the home of Bilal and Mohammed Skaf. 116 Sector 21168 served calls made to or from the Chullora industrial complex. 117 This evidence produced the following information (quoting from the Crown's amended summary of trial): In respect of 0415 681 064 (the mobile of Mohammed Skaf ) • Calls were made from within the 21163 sector at 7:23pm (to Vodafone), 7:24pm and 7:44pm (to Bilal Skaf on 0414 076 468) and at 8:28pm (to Ali Skaf on 0415 889 122). • Calls were made from within the 21168 sector at 8:34pm (to Bilal Skaf on 0414 076 468), at 8:39pm and 8:40pm (to Vodafone) and at 9:03pm (to "H" on 0404 227 642). • Calls were made from within the 21163 sector at 10:04pm (to Ali Skaf on 0415 889 122), 11:06pm (to 0404 155 188) and at 11:11pm (to Tayyab Sheikh on 0415 681 052). The evidence of Justin Stark was that there had been a change in the IMEI identification number for Mohammed Skaf's SIM card from 7:23pm to 9:03pm on 30 August 2000 ( exhibit C31 ). The IMEI number during this time (and only in this period) matched the number of the complainant's mobile phone handset. This indicated that the SIM card from Mohammed Skaf's mobile phone was placed into the complainant's mobile phone handset for that period of time. Afterwards the IMEI number reverted to Mohammed Skaf's mobile phone handset. The Crown relied on this evidence to show that Mohammed Skaf had not left after the incident in the toilet block in the Marion Street car park, as he had claimed to police in his final interview on 13 November 2000. In respect of 0414 076 468 (the mobile phone of Bilal Skaf ): • A call was made from within the 21168 sector at 6:44pm (to "H" on 0404 227 642). • A call was made to "H" from another sector (28633) at 6:59pm. This was from the Centenary Drive cell. • A call was made from within the 21163 sector at 8:33pm (to Vodafone), though in cross-examination Simmons said that the network may have taken this call on the 900 frequency even though the caller was within the 21168 sector because the duration of the call was short and the network may not have had time to react and place the call on the 1800 frequency. • At 9:02pm there was a text message sent to Ali Skaf on 0415 889 122. • Calls were made from within the 21168 sector at 9:02pm and 9:09pm (to Ali Skaf on 0415 889 122) and at 9:58pm and at 10:37pm (to Nina on 0404 076 763, who was listed in his phone as his girlfriend). • At 9:24pm there was a call to 9703 1468 (the house of Bilal and Mohammed Skaf) from the Chullora cell. This was in sector 22752, which was the same sector in which Ghanem and Chami resided. The Crown relied on this to show that he was involved in dropping his co-offenders home. • Calls were made from within the 21163 sector at 10:17pm and 10:44pm (to Mohammed Skaf on 0415 681 064) and at 10:45pm (to Nina on 0404 076 763) … The records also showed a text message from the mobile of Ghanem to Chami at 5:41pm, calls from the mobile of Chami to the mobile of Bilal Skaf at 3:49pm (from Bankstown), to the mobile of Ghanem at 5:50pm and to the mobile of Bilal Skaf at 6:17 (from South Strathfield). In respect of 0404 227 642 (the mobile of "H" ) the phone records ( exhibits C2 and C26 ) showed a series of calls from 9:07pm through to 12:42am from his phone to Bilal Skaf, Mohammed Skaf, Tayyab Sheikh and Tahir Sheikh. The phone records also showed that the complainant's mobile phone was called from the mobile of "H" twice at 10:30pm on 30 August 2000, and again at 12:28am, 10:32am, 11:55am and at 10:43pm on 31 August 2000. Grounds of appeal 118 The following grounds of appeal were raised and pressed. (a) Chami Ground 1: The directions given by the learned judge on the standard of proof of the charges on the indictment were erroneous. Ground 2: The manner in which the learned trial judge directed the jury on the allegations made by the complainant against people who were not on trial was erroneous and likely to mislead the jury in their assessment of the general credibility of the complainant. Ground 3: The learned trial judge failed to define the elements of the third count on the indictment, that is the charge of unlawful detention brought pursuant to s90(A) Crimes Act (since repealed), and failed to identify for the jury the evidence relevant to the elements of that count insofar as it affected the appellant Mr Chami. Ground 4: The directions given by the learned trial judge on the elements of the offence charged against the appellant in respect of count 7 of the indictment were inadequate in the manner in which they dealt with the question of the appellant's knowledge of the fact that the complainant was not consenting to sexual intercourse. Ground 5: The trial of the appellant miscarried when the learned Crown prosecutor made a comment on the failure of the appellant to give evidence. Ground 6: The directions given to the jury on the assessment of the reliability of the evidence given by the complainant were erroneous and inadequate. Ground 7: The manner in which the learned trial judge conducted the trial proceedings and the terms of his summing up, resulted in the jury's deliberations being conducted in an atmosphere of unfair prejudice to the appellant. Ground 8: The trial miscarried by reason of the Crown's failure to disclose to the defence a statement of "H". The trial judge erred in refusing to discharge the jury following upon counsel for the appellant learning of the existence of the statement. (b) Ghanem Ground 1: The trial judge erred in failing to exclude evidence of identification of the appellant from a photoboard. Ground 2: The trial judge erred in his directions in relation to the photoboard identification evidence. Ground 3: The trial judge erred in allowing telephone intercept evidence to be admitted as evidence against the appellant. Ground 4: The trial judge erred in his directions on the telephone intercept evidence. Ground 5: The trial judge erred in refusing an application seeking a separate trial for the appellant. Ground 6: The trial judge erred in his directions on the standard of proof. Ground 7: The trial miscarried by reason of the Crown's failure to disclose to the defence a statement of "H". The trial judge erred in refusing to discharge the jury following upon counsel for the appellant learning of the existence of this statement. (c) Bilal Skaf Ground 1: The verdicts of the jury were unreasonable and inconsistent with the evidence. Ground 3: His Honour erred in leaving the appellant's lies to the jury as evidence of consciousness of guilt. Ground 4: The trial miscarried because of the learned trial judge's directions as to lies, and in particular the failure of the learned trial judge to indicate other reasons for telling a lie apart from consciousness of guilt. Ground 6: The trial judge erred in his directions on the standard of proof. (d) Mohammed Skaf Ground 2: The directions given by the learned trial judge on the standard of proof of the charges in the indictment were erroneous. Ground 3: The learned trial judge erred in his directions to the jury in relation to the significance of allegations made by the complainant with respect to other alleged offenders. Ground 4: The trial judge erred in failing to identify the evidence of the complainant admissible against the appellant Mohammed Skaf and the counts in respect of which it was admissible. Ground 5: A miscarriage of justice was occasioned as a result of the Crown's address to the jury in relation to the warning they were to be given by the trial judge in relation to identification evidence which had the effect of undermining that warning. Ground 6: The trial judge erred in failing to give adequate warnings in relation to identification evidence. Ground 7: The trial judge erred in failing to direct the jury as to the need to scrutinize the complainant's evidence with great care before returning a verdict of guilty in accordance with R v Murray (1987) 11 NSWLR 12. Ground 8: The trial judge erred in failing to give adequate directions to the jury in relation to lies told by the appellant. Ground 9: A miscarriage of justice was occasioned as a result of the trial judge's directions which undermined the address of the appellant's counsel and unfairly prejudiced the appellant. Ground 10: There was a miscarriage of justice as a result of a lack of balance in the trial judge's directions to the jury. Refusal to order separate trial (Ghanem 5) 119 Ghanem's application for a separate trial was refused on 8 March 2002. It had been made on the basis of a weak case against the particular accused; prejudice stemming particularly from the pervert course of justice charges against Bilal Skaf; Ghanem's non-involvement in other attacks about which evidence would be given; and prejudice that would occur if any co-accused gave evidence. 120 Judge Finnane held that the three series of attacks on the complainant were linked in that they occurred one after the other with the same victim seemingly being handed over from one group to the next. He considered the weight of evidence against Ghanem as compared to that implicating the other accused. He held that the identification evidence seemed to be quite clear and that the strength of the case against Ghanem was not affected by that implicating others. He was of the opinion that there was no evidence that was highly prejudicial to Ghanem although inadmissible against him. In forming this view, he observed that the material suggesting perversion of the course of justice by the Skaf brothers reflected only on those who were part of it. Other factors taken into account were concern that quite a false picture would be created if the complainant did not give evidence of all of the events that occurred; the expense and inconvenience that would be caused in bringing large numbers of witnesses to more than one trial; and the interests of the complainant. 121 Ghanem accepts that the issue to be determined in this Court is whether the trial miscarried because it was unfair to have a joint trial in all the circumstances (see generally Verma (1987) 30 A Crim R 441). 122 In our view the trial involving Ghanem did not miscarry on this ground. The interests of justice made it appropriate for there to be a joint trial. As it turned out, the complainant's credibility was tested on particular issues as she gave her account of a related stream of events. For example, the circumstances of one contested identification were available to be compared with another identification that was in dispute. The complainant's account of who was present at various stages of the horrific evening, particularly stages where one of the accused was directly involved, had to be given and would have been tested in any event. 123 Proper directions were given as to the need to consider the cases separately. 124 It also turned out that Ghanem was the only accused to give evidence at the trial. And (for what it was worth) Chami's ERISP (which went into evidence in his case alone) asserted that Ghanem was not present. 125 In our view this ground fails. Belated disclosure of H's statement (Chami 8, Ghanem 7) 126 Early on the morning of Thursday 23 May 2002 the defence parties were provided with a previously unserved statement of H. It was dated 14 September 2000 and it provided H's version of events involving the complainant. The Crown had closed its case the previous day. 127 Counsel for Chami (Ms Francis) sought an adjournment to consider what to do. After discussion the matter was stood down until midday for preliminary inquiries to be made. Upon resumption, Ms Francis applied for a further adjournment to investigate certain matters revealed by the Crown in the interim relevant to the credibility of the material in H's statement. Counsel for Ghanem (Ms Langley) sought the discharge of the jury, alternatively for leave to cross examine the complainant further. 128 The matter of concern was H's assertion that he was present when the complainant had been picked up from the Marion Street car park after the first set of assaults and driven by two men in a "red Mazda two door" to "some markets in a carpark". The significance in relation to Chami's and Ghanem's cases was that the complainant had in her first statement to the police described a number of assaults, including the production of the gun, as having occurred in the "red…hatchback with two doors" in which she had been driven from the Marion St carpark to the Bankstown Trotting Club. In her second statement and in her evidence, the complainant said that she was mistaken in her first statement and that it was a black two door hatchback in which she had been driven from Marion Street to the Bankstown Trotting Club. She also said that the gun was produced in the later red car, not the black car. The red car had four doors and offences involving the appellants Chami, Ghanem and Bilal Skaf were said to have occurred in it. 129 Judge Finnane agreed to adjourn the trial until the following Monday, explaining why he was not disposed to discharge the jury and why a limited adjournment was adequate to ensure a fair trial (Tr pp942-4). It was indicated that the defence would have the opportunity of further cross-examining the complainant and of issuing subpoenas, notwithstanding his Honour's concerns about a fishing expedition. 130 Before the hearing was adjourned, the Crown recalled Detective Sergeant Porta on the voir dire to give evidence about police investigations responsive to the matters raised by H in his statement. The officer was cross examined by Ms Francis and Ms Langley. 131 When the trial resumed the following Monday, Detective Sergeant Porta gave further evidence in the absence of the jury and he produced the documents that had previously been called for by the representatives of the accused. 132 Ms Francis then sought the discharge of the jury on the basis of inadequate Crown disclosure that had affected the fairness of the trial in respect of Chami. Counsel indicated that she did not wish to have the complainant recalled. Ms Langley also sought a discharge on behalf of Ghanem, indicating a similar attitude as regards the opportunity for further cross-examination of the complainant. 133 The applications to discharge the jury were refused. This ruling is the subject of these grounds of appeal by Chami and Ghanem. 134 To understand the issues it is necessary to consider the material in the complainant's first statement, the material in H's statement, the arguments advanced at trial and pressed on appeal as to the nature of the prejudice occasioned to the accused, the material established by and during the course of Detective Sergeant Porta's voir dire evidence and the reasons given for the refusal of the application. 135 In her first statement to the police the complainant had said that she was driven away from the Marion Street car park in a "grungy" red hatchback with two doors. She made several corrections in her second statement. One of them was to assert that it was a black car that drove her from the Marion Street car park to the Bankstown Trotting Club car park. Her second statement and trial testimony were also to the effect that the red car in which several sexual assaults occurred and the gun was produced had four doors. There was a lot of cross-examination about discrepancies and confusion concerning the red and black cars and the description of the driver of the red car (Tr pp 260, 267, 268, 277, 278, 281). 136 H's statement was exculpatory of any criminal conduct. It was thus at variance with his own plea of guilty which had earlier been accepted by the judge, to the knowledge of the present appellants. The Crown prosecutor was not challenged as to her decision not to call H as a Crown witness, having regard to his unreliability. Nor was it disputed that evidence had been provided to his Honour in sentencing proceedings that indicated that H suffered from intellectual disability. H's statement contained nothing that directly assisted the cases of the two accused. Its belated production was not said to have been deliberate. 137 Counsel for Chami submitted to the trial judge and in this Court that H had raised the possibility of a second red car (described by H as a "real shit box") different from the four-door red Pulsar owned by Chami in which sexual intercourse involving Chami admittedly took place. The argument was that the possibility of there being two red cars opened the way for Chami to distance himself from the complainant's evidence that the driver of the red car took a gun out of the glove box and brandished it. (The production of the gun was part of the evidence supporting the detain for advantage charge based upon several events in (Chami's) red car.) 138 Counsel for Ghanem took a different position, both at trial and in this Court. H's statement was said to have revived the possibility that the complainant was correct the first time when she said that she was taken from the Marion Street carpark in a two door red hatchback. It was true that Ghanem was not alleged at any time (not even by H) to have been a passenger in the first car, and that it was at all times alleged that he arrived at the Trotting Club in the red car driven by Chami. Nevertheless, it was argued that the new material in H's statement could have been used as a basis of challenging the complainant's general credibility. 139 As indicated, counsel for neither accused took up the offered opportunity for further cross-examination of the complainant. That offer was made by the Crown prosecutor. The judge had his doubts, but the matter never arose for decision in light of the position taken by the two accused. Ms Langley argued that it would do injustice to her client's case to be required to retrace her steps in light of the material in the belatedly-produced statement. 140 Detective Sergeant Porta gave evidence and produced records referable to police investigations of H's claim that a "real shit box" two door red Mazda driven by a mate called Khalid or Ahmed who went to Condell Park High School gave the complainant a lift, stopping at McDonalds Bankstown. Investigations at the High School disclosed that Ahmed and Khalid were common names. No red "two door shit box" was seen at the school, which was checked over a number of days (Tr pp 949-950). There was no video surveillance tape made and/or retained at any of the public places at which the vehicle stopped en route. 141 The officer's evidence showed that the information provided by H (for what it was worth) was investigated and had produced nothing of relevance. 142 In the upshot, the accused were given the period between Thursday and Monday to make further inquiries of their own. It is very difficult to conceive what inquiries could have been done that were not available to be done in the time permitted. The trail was obviously very cold. 143 In his reasons of 27 May 2002 refusing a discharge Judge Finnane referred to the fact that H had pleaded guilty to offences against the present complainant as well as offences against other persons. He was developmentally delayed. His Honour then analysed the material in H's statement, including what he said about the red car. The judge observed that most of the statement was completely false in light of H's plea of guilty. Reference was made to the extensive cross-examination of the complainant earlier in the trial about the changes from her first statement of 1 September to her second statement of 21 September following discussion with Senior Constable Brazel on 14 September. The judge noted that it had been put to the complainant a number of times that the assaults involving Chami and later Ghanem might have taken place in a black vehicle, and that the complainant had denied this and said that they occurred in Chami's red car. The judge then referred to the evidence of Sergeant Porta about the ultimately fruitless attempts to establish the existence of the red vehicle referred to in H's statement. He concluded that the nonproduction of this information could not materially have affected the credibility of the complainant. He continued: In my opinion this material could not be said to have any relevance or any worth. The material is contained in a false statement by a person who has pleaded guilty. It could not be put as a matter of fact by either counsel who might wish to rely on it, and calling him would not establish it as a fact because he has pleaded guilty since he made the statement. In my opinion this statement is no more relevant than the supposition that anybody might come up with that there may have been another car or cars around the place at some time, notwithstanding the evidence that there was not. The fact that Mr [H], in a false statement, claims that there was a car driven by mysterious persons who cannot be really identified, nor can the car, does not, in my opinion, raise any fact of any significance or relevance or bearing upon this case. I am unable to agree that any forensic advantage has been lost and I am unable to agree in any way that there has been an unfair trial because this material was not produced. In my opinion the police have no obligation, nor has the Crown, to produce every statement made by someone, even a co-accused, in a case such as this, particularly where it is obvious that what is said is false. 144 The judge referred to the remarks of King CJ in an unreported South Australian case (R v K (1991) 161 LSJS 135 at 140, cited in R v Lewis-Hamilton (1997) 92 A Crim R 532 at 537) relevant to the Crown's duty of disclosure. The Chief Justice had said: This obligation [of disclosure] must in principle extend… to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises … only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness. 145 These two appellants submit that the judge was wrong to have regarded H's statement as having no relevance or materiality. We are inclined to agree and are troubled by the categorical terms of His Honour's remarks. But those remarks fall into somewhat clearer focus when it is recognised that the question at issue was the impact of the material in H's statement upon the complainant's credibility. 146 There was no question of calling H as a witness at trial. The prosecutor's decision not to rely upon H's testimony had not been questioned and it remained open to any defendant to call H as his witness. The reality was that no one wanted him at the trial. 147 H's statement opened up the possibility that a second red car driven by two of his mates was present at Bankstown early in the evening. The complainant got into the car, but no offences occurred in it, according to H. The police had followed this lead and got nowhere. The trail was very cold by the time of the trial, and the prospect that it might produce something of assistance to the defence remained speculative to the point of nonexistence. 148 The whole burden of the application for discharge rested upon the loss of opportunity to have used the information in H's statement in the earlier cross-examination of the complainant. The Crown prosecutor was willing to recall the complainant if necessary, but this offer was not taken up. Instead, it was argued that some material advantage had been lost earlier in the trial when the cross-examination had been framed on the basis of a defence case that had not had access to H's statement. 149 The suggestion that defence counsel were led down some path resulting in a miscarriage is however speculation without foundation. The principles of the Queen's Case ((1820) 2 Brod & Bing 284, 129 ER 976) as reformulated in s44 of the Evidence Act meant that the manner in which the complainant could have been confronted with the statement was severely constrained. So severely, that it was highly unlikely that defence counsel would ever have taken the risk of bringing H into the picture or putting his statement before the complainant. The opportunity to put a two red car hypothesis before the complainant by way of further cross-examination was one that counsel decided not to take up. 150 We do not agree that the judge erred in his refusal to discharge the jury. We agree with the main thrust of his remarks which were directed at the conclusion that no forensic advantage had been lost such as to have caused the trial to miscarry at that stage. 151 These grounds fail. Wrongful admission of Ghanem's photoboard identification (Ghanem 1) 152 The complainant did not mention a person with a ponytail in her first statement made on 1 September 2000. 153 On 14 September 2000 the complainant had a conversation with Senior Constable Brazel. The officer's record of the description of the passenger in the red car was (Tr p551) "long hair in ponytail, wavy hair, brown, blond, Leb. 18 years, medium build, Hawaiian shirt with cargo pants". 154 The next description given by the complainant was in her statement of 21 September 2000 (Tr p303): … male, of Lebanese appearance. He was aged about 18 years, he wore his hair in a ponytail, his hair was slightly curly on the ends. He was medium build wearing an Hawaiian shirt and bone coloured cargo pants. 155 On 15 November 2000 the complainant identified Ghanem from a photoboard comprising 15 photographs (Ex C6). He is not the only young man with longish hair, but his was the only photograph depicting a man with obviously long hair which was blondish and curly on the ends. (When the police had attended Ghanem's home he took his hair out of a ponytail before he was photographed with it hanging loose.) 156 In her evidence in chief the complainant described the front passenger of the red car (Ghanem, on the Crown case) in the following terms (Tr p83): Q. Now you mentioned the passenger, and I don't think I have asked you, what did the passenger look like? A. Well, what I remembered about him, he was actually good looking. Q. This is the front seat passenger of the red car? A. Yes. I remember thinking why did he feel the need to do this to me when he could have found any girl to do it with him. Q. Because he was attractive? A. That's what struck me. Q. What did he look like? A. He had - I remember his hair, it was blondish at the ends, he had it long, like an undercut sort of, and he was wearing, had it in a pony-tail, and I remember him wearing a Hawaiian kind of shirt and a pair of bone cargo pants. Q. How long was his hair; did you notice? A. When it was tied up it was just past the nape of his neck. It was fairly long for a guy, I remember. Q. Yes. Was it curly or straight or -- A. It was curly at the ends. It was pulled back really tight, so the top was really straight, but it was curly at the ends. Q. Did you see his face well, or not? A. Yes. While he was doing that assault upon me I remember looking at his face a few times, because it was only inches away from mine, so I did get quite a few good looks at his face. It was one of the faces that stuck in my mind the most after that night. See also Tr pp293, 315, 359-60, 440 for further evidence of the complainant on this issue. 157 The complainant agreed in cross-examination that the hair was what stood out most of all in her mind in her identification of Ghanem. But she adhered to her evidence about other features, including his deep set eyes and the fact that he was "somewhat better looking". 158 The police search of Ghanem's home revealed no Hawaiian shirt or bone coloured cargo pants. In his evidence denying any involvement in the sexual assault of the complainant, Ghanem said that he did not own any such clothing. 159 The submission on appeal is that the photoboard identification was unfairly prejudicial and ought to have been excluded. It's admission at trial had been objected to on this basis (Tr pp361-70). The point being made was that, of the 15 photos in the particular photoboard, there was only one person who fitted the description then previously given as to the passenger in the red car. 160 One difficulty with this submission is that it would confine the relevant array to the particular photoboard containing Ghanem's picture. But this was not a case where the complainant was asked to look at a particular photoboard to see if she could identify a particular person. The complainant viewed five photoboards over three separate visits, sometimes identifying one or more of the young men pictured. 161 In brief reasons given on 7 May 2002 Judge Finnane ruled that the evidence was not unfairly prejudicial and he refused to exclude it. He held that all the men depicted in Ex C6 appear to have been roughly in the same age group and could be said to have a Middle Eastern or Lebanese appearance. All had different facial characteristics. Apart from Ghanem, there were ten persons whose hair could be said to be long enough to wear in a ponytail. None of the persons in the photographs were shown to be wearing ponytails, including Ghanem. His Honour then recounted the various statements given by the complainant describing the passenger in the red car (with the exception of the statement made to Senior Constable Brazel, which had not at that stage been elicited in evidence). 162 After referring to s137 of the Evidence Act his Honour focussed on the submission that showing the photoboards to the witness had created unfair prejudice to the accused because he was so different from others pictured in it. He observed that the complainant's identification of the accused was not confined to selecting the photo. There was a video showing how she came to pick the particular photo and there was nothing to suggest that she had been prompted in any way to select a particular photo. She and others gave evidence about the whole identification process. 163 His Honour observed (correctly) that the test in question was not whether the evidence was prejudicial but whether it was unfairly prejudicial. On that test, he refused to exclude the evidence. He observed that the photoboard evidence had been supplemented by other evidence that would have to be assessed by the jury in light of directions given to them. 164 We have looked at Ex C6. There is no reason to disagree with Judge Finnane's factual conclusions in relation to the various photographs depicted in it. Nor do we detect any error in the trial judge's approach to the balancing task with which he was confronted on this particular issue. 165 The Crown accepts that Ghanem's hair in the photograph is lighter than that of any of the other young men pictured in Ex C6, but submits that it is not significantly lighter. We agree that it is not significantly lighter than the hair of the men in pictures 3 and 5. In any event, the colour of the hair was not a significant aspect of the identification process. 166 The case is far removed from Blick (2000) 111 A Crim R 326 upon which the appellant placed some reliance. There the photoboard showed only one man with a goatee beard and that had been the sole identifying factor in the witness' mind. 167 Ghanem does not suggest any misconduct on the part of the police in compiling the particular photoboard that became Ex C6. The police had to work within the confines of the complainant's description of the various suspects. Naturally, there had to be a bona fide and reasonable attempt to provide a fair array. None of the accused had agreed to a line up. 168 This ground fails. Wrongful admission of Ghanem's telephone intercept evidence (Ghanem 3) 169 Chami was interviewed by the police on 13 October 2000. When the interview was largely complete Chami was permitted to leave the police station. During this break he made four telephone calls which were intercepted and recorded. Two were calls to Ghanem. 170 Some of Chami's statements were clearly incriminatory of himself. The present ground of appeal concerns whether they were properly left to the jury on the basis of being incriminatory of Ghanem. 171 The transcript of the calls is Ex C41. It reveals a conversation between two friends one of whom (Chami) is very concerned that he is about to be charged with serious offences involving the present complainant. In Chami's words, "Ghanem, they've fucked me, brother". The two men made arrangements to meet urgently at the Bankstown library. 172 Ghanem's responses were consistent with concern for a friend who had got himself into trouble with the police, but the real issue is whether they revealed more. In his evidence, Ghanem confirmed that he had been a friend of Chami since kindergarten, that he had heard that police visited Chami's home and that he was concerned to comfort a friend who was upset as a result of his interview with the police (Tr pp979-81, 1017-8, 1020). He said in effect that he had no other purpose: if he was worried, it was worry about his friend. 173 The prosecution sought to adduce the telephone calls as evidence of consciousness of guilt against both Chami and Ghanem. At trial Ghanem's counsel objected on the grounds of relevance and invoked ss135 and 137 of the Evidence Act. 174 One portion of the conversation was: Chami: [They know your name] I've seen Bill's name, everyone's name [They know everything] bro Ghanem: So what's gunna happen? Chami: …I'm at the cop shop. 175 Judge Finnane ruled that the evidence was admissible to show consciousness of guilt on the part of Chami. But in relation to Ghanem, his Honour ruled that it could not be used for this purpose. Nevertheless, the evidence was available to show "close association" or "deep interest in what Mr Chami is talking about or had talked about" or "an association between two people having an interest in the matter which is the subject of the trial" (Reasons 16 May 2002 pp9-10). 176 Ghanem submits that the evidence should not have been admitted against him on this or any other basis. The ruling was tantamount to an endorsement of guilt by association. In the jury's mind, the distinction between consciousness of guilt and "an association between two people having an interest in the matter which is the subject of the trial" would be a distinction without a difference. The friendship between the two men had already been established and it was not in dispute. There could be nothing wrong in a person receiving a phone call from a friend and listening as the latter poured forth a matter of genuine concern to himself. 177 This appellant's submissions should be accepted. Chami's paramount purpose was concern for himself. Ghanem gave him a sympathetic ear, but did not adopt Chami's inculpatory statements or otherwise implicate himself. The evidence was therefore not relevant to any case against Ghanem. It was certainly unfairly prejudicial to a degree that outweighed any probative force. 178 This situation is analogous to that of a person who visits a friend in gaol. It would be wrong to infer from this alone that the association was improper (cf Kawicki (1995) 82 A Crim R 191 at 194-5). 179 The Crown points out that the evidence was admitted before it was known whether Ghanem would give evidence. This does not really assist in resolving the issue of prejudice. In opposing the introduction of this material Ghanem's counsel had offered to admit that he and Chami had gone to school together. There was already evidence about mobile phone discussions early in the evening in question and the fact that each man had the other's number coded into his own phone. It follows that this Crown submission does not answer the issues of unfair prejudice or misuse of the material. 180 The risk of prejudice was not countered by warnings from the judge as to the inappropriate use of this material, the issue to which we turn immediately. 181 This ground is upheld. 182 We have found it unnecessary to consider the separate submission that any incriminatory tone or aspect of the Chami-Ghanem conversation (and of the cross-examination of Ghanem based on this evidence) may have been due to the fact that the focus of the conversation was a problem feared in relation to a different sexual assault then under police investigation. Directions on telephone intercept evidence (Ghanem 4) 183 Despite the ruling that the telephone intercept evidence could not be used to show any consciousness of guilt by Ghanem, the Crown prosecutor addressed the jury in the following terms (Tr pp1121-2): Of course in the break after [Chami] had admitted to having sex with her … there is this frantic call to Mohammed Ghanem. And, ladies and gentlemen, the Crown would submit to you that if … two good mates have together committed something of which they are not proud or something of a criminal nature and one is interviewed by police and makes certain admissions consistent with the crime, the very first person he is going to call is the person who was with him, his mate who was with him, and he rings Ghanem and he says "Ghanem, they've fucked me brother". Listen to it again. "What happened? Where are you?' "I'm at... everyone's name [sic]. They know everything." Ghanem doesn't say they know everything about what? He says, "So what's gunna happen", and he goes straight down there on the double. And the arrangement of course is Chami doesn't have to tell Ghanem what happened, Ghanem knows, and obviously the conversation once he arrives is to get the heads together to make sure what is said is the same thing. 184 Ghanem correctly observes that this last sentence misrepresented the text of the intercepted conversation. He also submits that these comments made it even more important that the jury be directed against using the telephone intercept evidence to infer consciousness of guilt. No such directions were given. 185 In the written summary of facts the trial judge merely noted that the telephone intercept evidence was available against Ghanem. In the summing up itself the jury were told (SU138-9): But the Crown case is that clearly here is Mr Chami, in the middle of an interview, ringing up Mr Ghanem to tell him they're both in trouble, the police are on to both of them and they had better get together at the library and have a chat about it. And it turned out to be an inspired piece of prophecy, because indeed the police did speak to Mr Ghanem, and Mr Ghanem is here in court facing these charges. On the Crown case the conversations are significant because they show two people, intimately connected with the events of this night, anxiously discussing what had occurred in the interview of one of them. Why would they discuss it? Because they had that common interest. It is put on behalf of Mr Chami, and indeed on behalf of Mr Ghanem, that this was just a call between two friends; Mr Chami was merely passing on to his friend the fact that the police were going to charge him, he thought, with attempted murder; and it wasn't because they were implicated in anything, it was just because they were two friends, and it's the sort of discussion you would have between two friends. 186 Ghanem submits that these directions contradicted the limited basis upon which the telephone intercept evidence had been admitted against him; and they left the jury without any warning against using Chami's own inculpatory statements to attribute a consciousness of guilt on the part of Ghanem. 187 The Crown submits that the directions at SU138-9 set out above put the competing inferences that had been relied upon in the addresses of counsel. 188 In our view the directions exacerbated the situation created by the admission of the evidence against Ghanem. They also tended to concentrate on Chami's perspective, without adverting to the hypothesis (supported by Ghanem's evidence) that Ghanem was doing no more than giving his friend in trouble a sympathetic ear. Ghanem had not adopted anything said by Chami. This should have been put with emphasis and the jury should have been warned against using the information against him as indicating consciousness of guilt. 189 Notwithstanding rule 4 (which the Crown invokes) we would uphold this ground of appeal, especially since it is linked with Ghanem's third ground of appeal. 190 Ghanem is entitled to a new trial. Prosecutor's comment on Chami's failure to give evidence (Chami 5) 191 Chami's sister-in-law gave character evidence in the trial. She was cross-examined about other issues, including the nature of the relationship between Chami and a young woman, Kyra. Chami had spoken to Kyra in an intercepted telephone call shortly after a lengthy and damaging ERISP on 13 October 2000, effectively coaching her as to the terms of a false alibi she should provide the police. 192 The cross-examination as to the length of the relationship included the following (Tr p1066, emphasis added): Q. When do you say the relationship with Kyra started? A. I don't know the exact date or month. Q. You said two years? A. It's been a couple of times. Q. It's 2002 now, May something or other? A. I don't know which month he met Kyra, it could have been a week before or a week after I don't know the exact date. Q. Two years. May 2000 right, so was it before then or after that? A. Could be under two years. Have you asked Mahmoud this question? Q. No and I don't believe I will have the opportunity to do that so you tell me -- A. -- I don't know what day he met her. I know it's a couple of years. 193 An application to discharge the jury was refused. 194 Section 20(2) of the Evidence Act relevantly prohibits a prosecutor from commenting on the failure of a defendant to give evidence in criminal proceedings. 195 The Crown prosecutor's statement was made at a time after the jury had become aware that Chami would not be called as a witness. 196 In rejecting an application to discharge the jury, Judge Finnane held that the Crown prosecutor's comment ("I won't have the opportunity"): … was a factual statement, as Ms Francis had indicated that she did not intend to call the accused. If the accused is not called, counsel present cannot cross-examine. That is our system of law. This was not a comment by the Prosecution on the failure of the accused to give evidence. It was a comment arising from the consequence that flows from the accused not giving evidence, namely, that she cannot cross-examine him. 197 The cross-examiner's comment was unnecessary and unfortunate, but it did not infringe s20(2). 198 A contravention arises when the prosecutor refers to the fact that the accused has the right to give evidence but fails to give evidence. The question must depend on the words used and the circumstances in which they are used. As Higgins J said in Bataillard v The King (1907) 4 CLR 1282 at 1292: "the comment must be on the refraining – on the fact that he could have given evidence on oath and has not done so". See also Peterson v The Queen (1979) 41 FLR 205. In our view, the prosecutor's remarks did not go this far. 199 Appropriate instructions were later given to the jury regarding Chami's failure to give evidence. 200 This ground fails. Prosecutor's address re warning (Mohammed Skaf Ground 5) 201 As indicated, the issue in relation to Counts 14 and 15 against Mohammed Skaf was that of identification. 202 The Crown prosecutor did not confine herself to addressing on the facts. The transcript of her address discloses that she ventured proleptically into the judge's domain. She said (Tr pp1106-7, emphasis added): Ladies and gentlemen, identification in the law is an interesting concept, and his Honour will give you many and detailed directions about identification and about how closely you have to examine and scrutinise identification evidence, and the law says, the higher courts and the precedents in law tell us and oblige trial judges to give many warnings about identification. And, of course, many of those cases in which those warnings have been set down have involved cases where people get just fleeting looks at people who have committed a crime. You might imagine say a bank robbery, if a person sees someone running out fast they get a bit of a look and they might think that they can identify someone, but you would have to look at that fairly closely because they don't expect they are going to see a robber coming out, they just get a fleeting glance perhaps from the side, they have no real interest in the money the bank has lost, for example, and so they may not be in such a position as [Ms D] was. [Ms D] identifies people who have actually had sexual intercourse with her and had their faces this close to her, right up close to her. She identifies people who she has known when things appear to be quite hopeful and she has seen them as things deteriorate into something disastrous for her. She saw them over a significant period of time, it was not just a fleeting glance as someone you might see running out of a shop or running away from a common assault in the street. She had got to know these people. She had spoken to them, she had put her trust in them, and in these cases she had seen them driving through streets, stopped at petrol stations, stopped at townhouses, and she had seen them there right up at close range having sexual intercourse with her. So of course you must observe and listen to his Honour's directions that he is required to give you, and in this and every identification case, because this is a special case you might think ladies and gentleman, this is a case where she has identified people she has spent a significant time with in various types of circumstances, including being so close as to be having sexual intercourse with them, and you might think the faces of those men, the men she identified and described so well, were galvanised upon her memory in the circumstances that she described. 203 Mohammed Skaf's complaint on appeal is that counsel was effectively watering down the warning that would later be given by the trial judge, particularly by the reference to "higher courts and precedents". 204 This ground has no merit. 205 There is no reason for thinking that the jury would have been deflected from their task. Counsel for the accused addressed later. And later still came the summing up in which the jury were given directions on the law and facts. 206 The Crown prosecutor was perfectly entitled to develop the argument that the complainant had significant opportunities to become familiar with Mohammed Skaf's face and features. 207 It is also significant that the jury were sent out very shortly after the portion of the prosecutor's address set out above. Counsel for two of the accused raised objections to recent remarks of the prosecutor, but no one raised the issue complained of in this ground of appeal. Rule 4 applies. 208 This ground fails. 209 It is convenient now to address the remaining complaints about the directions in the summing up. Directions on standard of proof (Chami 1, Ghanem 6, Bilal Skaf 6, Mohammed Skaf 2) 210 The written Directions of Law given to the jury said: Proof beyond reasonable doubt The Crown must prove each of the elements of each charge in the case against each of the accused beyond reasonable doubt. The expression "beyond reasonable doubt" means what it says. It is the highest level of proof in our system of law. Each of you as jurors knows the meaning of this expression. 211 Early in his summing up the judge directed the jury as follows (SU 14-16, emphasis added): Please remember each of you has to exercise your own judgment. No-one is entitled to bully you. No-one should make fun of you. You all have opinions that are equally important. All of you are entitled to express them and have them considered. When you come to decide something you can all have different reasons for deciding something. One of you may decide a particular witness is impressive because of one particular reason . The other may think that a witness gave very forthright evidence and I like that style. Another might say: Well, I thought that witness was telling the truth and have another reason for it altogether. When this witness said this and that that made sense, they are telling the truth. You can get two people coming to the same view, but approaching it in different ways. You do not all look at it in the same way. In fact I will give you a document of what the elements of the particular offences are. What you have to be satisfied about beyond reasonable doubt is the actual ingredients of each offence. You do not have to be satisfied beyond reasonable doubt that every word [Ms D] said was true for example. What you have to be satisfied is, having heard all the evidence, you have to be satisfied beyond a reasonable doubt, that this particular charge is made out. You may have a doubt about some parts of this evidence or that evidence and yet still be satisfied beyond reasonable doubt. On the other hand, you may not be able to come to a conclusion that you are satisfied beyond a reasonable doubt. If you have a doubt and it is based on reason then you should give the benefit of that doubt to the accused person in whose case you are considering. "Beyond reasonable doubt" is an expression meaning what it says. It is the highest form of proof known to the law. It does not mean "beyond reasonable doubt to the point of certainty". It means "beyond reasonable doubt" it means what it says. "Beyond reasonable doubt", any doubt that is in fact reasonable . 212 The appellants submit that these directions were erroneous as regards the bolded portions. Although no counsel took objection at trial, it is now submitted that the errors were fundamental and that a miscarriage ensued. 213 The Crown invokes rule 4. 214 No affidavit of trial counsel has been filed that might cast any light on the collective failure to raise any protest at trial. 215 There were many unexceptional references throughout the summing up as to the Crown's onus and standard of proof. 216 Green v The Queen (1971) 126 CLR 28 is the reference point on this topic in Australian law. That decision and many following it have enjoined trial judges to refrain from expounding the criminal standard of proof. For a recent discussion see R v Southammavong [2003] NSWCCA 312. 217 It does not follow that every judicial gloss buffed onto the golden thread of the common law constitutes a miscarriage of justice. 218 The directions given to the jury about the meaning of "beyond reasonable doubt" in Green were erroneous in several respects and their harmful impact had to be considered in their unique context. Nevertheless, the High Court's discussion in Green contains warnings that embody general principles. 219 The summing up on standard of proof in Green was held to be confusing (at 32) and to suggest of that "a comfortable satisfaction of the accused's guilt would be enough" (at 33). However, a fundamental point of error was described in the following terms (at 32-3): A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. "It is not their task to analyse their own mental processes": Windeyer J, Thomas v The Queen [(1960) 102 CLR at p606)]. A reasonable doubt which a jury may entertain is not to be confined to a "rational doubt", or a "doubt founded on reason" in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case. 220 The offending direction in Green included the following (at 30): And you may say "Well, how do I know when I have got to a stage of being satisfied about something beyond reasonable doubt?" and the answer to that is that it is when you have reached the stage that you either have no doubt at all, because if you have got no doubt at all you must have got rid of all reasonable doubts; or if there is something nagging in the back of your mind which makes you hesitate as to whether you are satisfied beyond reasonable doubt, you have got to try and take it out and identify this thing which is causing the hesitation, causing the doubt if you like, and you have a look at it and you try to assess it and you say to yourself is this doubt that is bothering me, does it proceed from reason; is it a rational doubt; is it something which raises a really sensible doubt; or is it a fantastic sort of doubt; is it something which arises from some prejudice that I may have; some quite unreasonable fear that I might go [sic] wrong; some perhaps reluctance to make an unpleasant finding. Well, if it is one of those doubts – merely one of those doubts, then of course it cannot be described as reasonable because it does not come from reason; it comes from something which is emotional or irrational or – at any rate it is not based upon reason, and if you have had a look at what is bothering you and you decide that it does proceed from something which is not reason but something fantastic or rising out of prejudice or one of these other things, then you should say to yourself, "The only doubt I've got is one which is not based on reason, I have therefore got rid of all doubts which are not based in reason, and the result of that is that I am satisfied beyond reasonable doubt, because the only things that are worrying me are things which I now assess after looking at them as not based in reason." 221 The appellants submit that the directions in the present case share the fundamental defect exposed by the High Court in Green. They qualified the time-honoured standard by lessening it. 222 The vice of the present directions is said to be that the jury were invited to engage in "an analytic exercise dissecting such doubts as they may experience" (cf R v Ho (2002) 130 A Crim R 545 at 551 [27]). If any member of the jury entertained a reasonable doubt but was not able to identify the reason for that doubt then he or she would have been driven away from holding out for the acquittal to which the accused was entitled. The appellants cited R v Reeves (1992) 29 NSWLR 109 where Hunt CJ at CL (at 116-7) was critical of a trial judge who: …invited the jury to ponder what exactly was meant by "reasonable", and he suggested to them that the answer was not found in their own individual understanding of the work "reasonable". 223 As to the fundamental consequence of a misdirection as to the onus of proof in a criminal trial, and the inapplicability of the proviso, the appellants cite Thomas v The Queen (1960) 102 CLR 581 at 588, 594, 596, 602 and 604. 224 The Crown submits, and we agree, that the early references to "reason" in the passage under examination are merely instructions to the jurors to exercise independent judgment. 225 The Crown further submits that the latter references to a doubt that "is based on reason" and "that is in fact reasonable" did not involve an invitation to the type of analytical approach admonished by the High Court. We agree. 226 The fleeting references to a "doubt based on reason" did not conjure up intricate diversions of the offending direction in Green. Nor did it entice the jury away from setting their own standard of reasonableness by minute subdivision and restatement of the time-honoured phrase. 227 In R v Li [2003] NSWCCA 386, a direction by the present trial judge referring to a "Doubt in your mind, and it's a reasonable one" was held to be incorrect and inappropriate. Likewise a further reference to "a doubt based on reason". The directions were then held to have caused the trial to miscarry. Despite the application of Rule 4 the misdirection was held to be fundamental and it contributed to an order quashing the conviction and ordering a new trial. In Li those misdirections were however compounded by being accompanied by an invitation to the jury to decide which of two cases (the complainant's or the accused's) was correct (see Dunford J at [72]. See also at [73]). There was also a separate misdirection on corroboration and the assessment of the complainant's evidence that was found to be fundamentally flawed (see at [63]-[68], [76]). Li was decided after the judgment was reserved in the present appeals. It was drawn to this Court's attention in a memorandum from senior counsel for Chami. It is persuasive but not conclusive on the present issue, because of the additional factors that contributed to the miscarriage there found established. 228 In R v Blanch, CCA unreported 17 August 1988 and R v Solomon, CCA unreported 15 November 1989, decisions to which our attention was drawn in a memorandum from senior counsel for Ghanem, this Court overturned convictions where the vices of the directions about standard of proof were that they contrasted beyond reasonable doubt with a state of "absolute certainty". This comparative exercise was found to have put the wrong emphasis on the time-honoured direction. In Blanch the conviction was quashed even though redirection had not been sought. The vice attending Blanch and Solomon is not, however present in the directions complained of in the current appeals. 229 We do not endorse his Honour's gloss. Its use should be discontinued. But the particular trial did not miscarry on this account. 230 These grounds fail. Direction as to charge of unlawful detention (Chami 3) 231 Chami submits that inadequate directions were given as to the elements of the third count, the one generally referred to at trial as "detention for sexual advantage". The complaint focuses upon the factual elements of the count in the particular case. 232 There were general instructions in the Directions of Law. The summing up addressed the topic at several points (SU 84-5, 160-1, 182-3 and 194-5). At SU 153 counsel for Chami asked the trial judge to isolate the acts that the Crown would need to prove beyond reasonable doubt to establish the detaining. He also sought directions in relation to the defence case on that charge, pointing to inconsistencies in the complainant's statements about the car in which the gun was produced. 233 The judge gave the following directions (SU 160-1): In the third count, the three men together are accused of detention. The acts of detention there, members of the jury, on the Crown case, commence from the time they have her in the car and will not let her get out. When she attempts to get out at the service station someone produces a gun. And then that detention continues until Chullora. She is then trapped in the car. That is the effect of her evidence, that all attempts by her to get out fail because the doors are locked, people get in and they stop her getting out, and the three of them are around the place, she doesn't know which one of them was in fact stopping her getting out at any particular time, all she knows is she couldn't, they all were keeping her there. When she did get out of the car they continued to detain her although not for sexual advantage. It has been put to you in submissions that she has given differing accounts of the gun, whether she saw the gun, whether she didn't see the gun, was it held to her head, wasn't it held to her head. If you consider that she is unreliable in relation to a gun then you would have to look at her reliability in relation to other evidence. 234 In this Court Chami submits that these directions were confusing and introduced the concept that "detention" may be established merely by the fact of having sexual intercourse with the complainant against her will. It was not made sufficiently plain to the jury precisely how the Crown sought to make out its case on the third count. 235 Later the jury asked a question about the "definition of the detainment" in the context of count 1 against Mohammed Skaf. The further directions they were given also included reference to count 3, including (SU 182-3): Now in relation to the other counts of detention, count 3 alleges the same thing, detention for advantage, against Mahmoud Chami, Bilal Skaf and Mohammed Ghanem. Now the evidence shows that she got into that car, having been persuaded to get into it with a promise that she'd be taken home; a false promise. But it was at a service station, when she attempted to get out and was prevented from getting out, that the detention started there. She was held from that point, she could not get out of the car. Now from that point to the time that the people in the red car handed her over to the next group, the Crown case is the three of them were detaining her. Whether she was actually in the car or outside the car, they still maintained a control over her. So detaining can mean an actual locking in a room; it can mean a locking in a car; it can mean just standing around and making sure you don't move. In a sense they had her under arrest, they had arrested her; that's the Crown case. Now before that red car went away, the next car came along, Mohammed Skaf took her behind a shed. From the time he took charge of her to the time he ceased to have anything to do with her, he was detaining her. And that continued up to the time she was dropped off at Lidcombe. So that's the detaining. So there's a physical side to it, in a sense, but there's also a mental side to it. I can actually hold you using my will-power and your fear that I won't let you go; each time you attempt to go, someone will bring you back. And you will remember she gave evidence that on a number of occasions on this night, when she was in open places, she would attempt to leave and one would come and bring her back again. So if she's standing outside the red car and they're around, they're still detaining her. That's detaining. It just means holding. And it's holding for the purpose, for a sexual purpose, for sexual advantage. 236 The appellants submit that these further directions would not have dispelled earlier confusion about the factual elements of the third count. We disagree. 237 At SU 192-5 counsel sought a further direction. He referred to the prosecutor's final address (at Tr p1104), submitting that the Crown had argued that the detention was complete when the complainant was lured and enticed into the red car. (In fact the prosecutor had said "lured and enticed into the red car and held there".) The prosecutor interrupted to confirm that the alleged detention did not cease when the complainant was lured into the car: it continued until the sexual advantage was gained. A proposed clarification was agreed to by Chami's counsel (SU 193) and was immediately given to the jury (SU 194-5). This direction included the following: So in the case of Mr Chami, say for example, Mr Chami gets into a car and she is in there, the doors are locked or held from the outside or she believes they are, now he is detaining her, she cannot get out of the back because he is keeping her there. Once he starts to have sex with her you can say in a sense he is detaining too because it is not possible to have sex unless they are with one another, one would think, and the actual crime is completed just before he has the sex. Do you understand what I mean; he holds her, she cannot get away and has sex. One of the men is holding her for the purpose of sex and one is to have the sex. 238 This last direction was favourable to the appellant, because there is no reason why detention should be complete before the intended sexual activity commences. And it removed any basis for the present complaint. 239 This ground fails. Directions as to Chami's knowledge (Chami 4) 240 Chami did not give evidence. He did not dispute the complainant's evidence of non-consensual intercourse in the red car. However, he contended that it was oral not vaginal sex and he disputed that he knew she was not consenting. 241 Cross-examination of the complainant had elicited concessions that he had not threatened to hurt her (Tr p284) and she was not sure if she was crying until the assault commenced (Tr p289). 242 Chami's case in his ERISP was that the complainant was an enthusiastic participant in oral intercourse; and that he had rejected any suggestion of vaginal intercourse because he did not have a condom. The Crown submits that neither honest and mistaken belief or recklessness arose on that version. We agree. Finnane DCJ gave a ruling to that effect shortly before Ms Francis addressed the jury (Tr p1216). 243 Chami submits that this was erroneous and that he was thereby deprived of the opportunity of raising a genuine issue. We disagree. 244 Chami's counsel addressed on honest and mistaken belief and recklessness (Tr p 1231). 245 At SU 47 the jury were told: In certain situations if the accused has a belief that the complainant is consenting, even though she in fact is not consenting, that belief means that he is not committing this offence. That is something that concerns only Mr Chami because he, through his counsel, raises the proposition that he believed Ms T was consenting even if Ms T was not. In no other of the cases is there any suggestion of any belief. 246 The written directions contained strong instructions about the need to prove subjective knowledge and they left recklessness in exemplary terms. They were: The Crown must also prove that the accused knew that the complainant was not consenting. This is a subjective test. How then does the Crown prove the accused knew the complainant was not consenting? The Crown asks you to draw this conclusion from other facts which it has set out to prove that he must have known the complainant did not consent and indeed that he did know she was not consenting. In a situation where the complainant does not in fact consent, the accused's state of mind might be that at the time of the acts of sexual intercourse, he actually knew that she was not consenting. That is a guilty state of mind. If the Crown satisfies you beyond reasonable doubt that that was the accused's state of mind at the times of the acts of intercourse, then the Crown has made out this element of the charges. Similarly, if the Crown proves beyond a reasonable doubt that the accused was reckless, not caring whether the complainant consented or not, then it has made out this element of the case. Again, the test is a subjective one. What you have to determine is whether the accused actually was reckless, not caring whether the complainant consented or not. On the other hand, the accused's state of mind might be that he honestly, though wrongly believed that the complainant was consenting to intercourse. That is not a guilty state of mind. It is for the Crown to prove beyond reasonable doubt that the accused, at the time of the acts of intercourse, did not honestly believe that the complainant was consenting. If the Crown has not proved this, then you must acquit the accused. This applies to Mr Chami and Mr Mohammed Skaf (in relation to the acts at the Marion Street Carpark toilets). 247 Chami complains of a direction concerning recklessness given at SU 162 in the following terms (emphasis added): In relation to recklessness, and this could only affect Mr Mohammed Skaf and Mr Chami, if the accused's state of mind was such that he realised at the time he was having intercourse the possibility that the woman was not consenting and without more he has intercourse, then that is reckless. If he doesn't even bother considering whether she is consenting or not, and a risk that she was not consenting would be obvious to anyone, then that is reckless. … So when you look at consent you try to look into somebody's mind. If someone just comes along and starts having sex with a woman without asking any questions or doing anything and somebody says well, anybody would know she wouldn't be consenting, anybody looking on could say look, how could you say that, then a question of recklessness arises. He submits that this invited the jury to consider recklessness as an objective, not subjective, notion. 248 No complaint was raised about this direction. It would not, in our view, have been seen as an invitation to apply an objective approach. The written directions pointed so strongly the opposite way. 249 This ground fails. Directions relating to address of counsel (Mohamed Skaf 9) 250 Mohamed Skaf submits that a miscarriage occasioned from directions which undermined the address of his counsel and unfairly prejudiced his case. 251 Early in the summing up the judge said this (SU 4): Now I want to say this to start with, and it's something that arises to some extent from Mr Jankowski's address. This is the 21st century since the birth of Christ. We're not in the 19th century or the 18th or the 17th. Whatever they might have done in those centuries, the law now is perfectly clear. Any woman is entitled to refuse consent to sexual intercourse at any time. There is no concept in our law that there is a category of person called 'loose women' who are deemed somehow to consent. And certainly there is no law that merely because a young woman might give an indication that she was friendly with someone and did not protest too much when they were laying hands on her, that she therefore was consenting to anything that that person or anyone else might want to do at any time thereafter. That is not the law. 252 Mohamed Skaf submits that there was nothing in the address of his trial counsel that warranted this direction. He further submits that the effect of the direction was to suggest to the jury that his defence was that the complainant was "asking for it" because she had not objected to earlier touching in the train and at Bankstown Station. This was not the defence. The complainant's non-objection to earlier touching of a sexual nature was however relevant to the issues of consent and belief of consent. 253 It is further submitted that the reference to the birth of Christ was unfortunate in the context of the trial of four Muslims. It was perhaps inappropriate, but no miscarriage stemmed from it. Reference to a particular century of the modern era as being the X century after Christ is commonplace and no more than an explicit statement of the assumption upon which the worldwide calendar proceeds. Nothing in the judge's remark conveyed some hidden message concerning the presumed faith-system of the accused. 254 There were firm directions to the jury about the need to put aside any religious or political bias stemming from an assumption that the accused were Muslims or any presupposition is about Muslims, either favourable or unfavourable (SU 41-43). 255 The real issue is whether the judge's remarks about a woman's right to withhold or revoke consent unfairly undermined this appellant's defence. 256 We find no fault with these directions. Written and oral instructions were given elsewhere, in exemplary terms, as to the issues of the complainant's consent and the state of knowledge that the Crown had to prove against persons accused of sexual assaults. It was quite proper for the judge to remind the jury that consent may be withdrawn and that consent to touching of a sexual nature cannot be translated into consent to sexual intercourse of an entirely different nature in a different context. [We are not inferring that the complainant did consent to what happened in the train and in the walk from Bankstown Station. There was however evidence that was relied upon in the final address of Mohamed Skaf's counsel (Tr p1189) that opened the issue while at the same time providing a context for the judge to say what he did. The jury were reminded of this evidence at SU 114-5.] 257 The judge's remarks did not disparage the defence or cause the trial to miscarry. The matters now complained of were not raised at the trial. 258 This ground fails. Directions on complainant's reliability (Chami 6, Mohammed Skaf 7) 259 The complainant's credibility as a witness (as distinct from her honesty) was assailed in various ways at the trial. She was cross-examined vigorously on a number of fronts. Uncertainties and discrepancies in her evidence were highlighted in cross-examination, in final address and the jury were reminded of them in the summing up. 260 The present complaint is that the directions did not warn the jury of the need to scrutinize the complainant's evidence carefully. Reliance is placed on the comment by Lee J in R v Murray (1987) 11 NSWLR 12 at 19: In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinized with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable. 261 It is pertinent to observe that Lee J followed these remarks with an observation that failure to give the direction referred to did not necessarily lead to the verdict being set aside. In Murray itself the appeal against conviction was dismissed. This Court has recently held that the authorities do not mandate the giving of a Murray direction in all cases where there is a conflict between the evidence of the complainant and the accused (R v Burt [2003] NSWCCA 248). 262 It is also pertinent that the Crown case against each accused did not depend solely upon acceptance of the complainant's testimony. The circumstantial and corroborative evidence against these appellants was very strong. 263 During the summing up, counsel for Bilal Skaf sought a direction based on s165(1)(b) and (c) referable to the reliability of the complainant's identification evidence. He also sought a direction in accordance with R v Markuleski (2001) 52 NSWLR 82. In the course of his submissions, Mr Healey referred in passing to a Murray direction to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before a conclusion can be arrived at (SU 27). No other counsel sought such a direction and Bilal Skaf's ground of appeal complaining about the absence of a Markuleski direction was not pressed in this Court. None of this assists Mohammed Skaf who nevertheless draws attention to it in an attempt to answer the rule 4 implications touching his ground of appeal on this topic. 264 It is however clear that Chami's trial counsel asked late in the summing up for a warning based on Murray. Judge Finnane refused (SU p152). He pointed out that Chami did not dispute that sexual intercourse had taken place. It was obvious to the jury and covered in the written directions that the issue as to whether the Crown established that intercourse was non-consensual depended upon accepting the evidence of the complainant. The judge declined to warn that it was dangerous to convict or to direct the jury that the complainant's evidence might be unreliable. We see no error here. Identification was not in issue and there was nothing on the facts that attracted the need for a reliability warning in accordance with s165(1)(c). 265 The whole tenor of the summing up was one that directed the jury to scrutinize the complainant's evidence with care (see Written Directions and SU 10, 19, 88, 89, 96-97). Specific inconsistencies in the complainant's evidence referable to Chami were addressed at SU 141-143. 266 Chami adds submissions based upon a particular passage in the complainant's evidence (Tr p285) in which she expressed some uncertainty about the precise mechanics of her sexual assault by Chami. This particular submission has not been overlooked, but it is without merit. It was not incumbent on the judge to draw particular attention to this passage, particularly if no request to that effect was made. 267 Counsel for Mohammed Skaf did not seek a warning in accordance with s165. But the jury would have been in no doubt as to the need to scrutinize the complainant's evidence with great care in relation to the two principal issues raised in his defence at the trial. There is no reason why rule 4 should not be applied in his case. 268 These grounds fail. Directions as to allegations against non-accused (Chami 2, Mohammed Skaf 3) 269 These two appellants submit that the jury were misdirected, and that the general credibility of the complainant was enhanced unfairly by the manner in which the judge referred to assaults at the hands of men who were not the accused in the particular trial. 270 These were the men (other than Mohammed Skaf) who had intercourse in the Marion Street toilet block and the men in the black car. The complainant had given evidence as to these sexual assaults in the course of her structured narrative covering the entire evening. There was no objection nor any challenge by cross-examination or otherwise to the evidence about these additional assaults. Not only was the material not objected to, it was clearly relevant if only as going to the issue of whether the complainant consented to the later incidents involving those on trial. There are likely also to have been tactical reasons for allowing this evidence to be given. Some lines of cross-examination of the complainant focussed upon the likelihood of confusion stemming from the totality of events as well as confusion between the red and black cars (cf the issues raised in connection with the ground of appeal concerning H's statement, dealt with above). 271 As Finnane DCJ remarked when refusing the request of Chami's counsel for a redirection on this issue (SU 155), no one cross-examined the complainant along the lines of suggesting that she was a liar who had made up a fantastic invention. 272 Obviously the complainant's credibility remained central and it was challenged in various ways as best suited the respective defences. But the passing references to the sexual assaults at the hands of men who were not on trial were fair reflections of the context of the Crown case. The complainant's credibility on the issues that mattered was not unfairly bolstered. 273 The judge touched on this evidence, very lightly, while recounting the complainant's narrative. He told the jury that the complainant's evidence about these assaults being non-consensual was uncontested (SU 7). The context made it perfectly clear that he was referring to particular incidents that did not involve any of the accused who were on trial. 274 When Judge Finnane came to give general directions on the question of consent involving Mohammed Skaf and the incident involving him in the Marion Street toilet, he said the following (SU 51, emphasis added): If a woman gives a consent, although a grudging one, that is consent. You have to examine all the circumstances. In this particular case, you will bear in mind what I said to you earlier, that, on the Crown case, she was sexually assaulted without her consent by at least four men in the toilets at the Marion Street carpark. There is no evidence to the contrary. It is possible that you could disbelieve it. If you were prepared to disbelieve every word she said you could disbelieve that that occurred at all. After all, it is her credibility, you are entitled as a jury not to believe anything she said, just as you are entitled to believe everything, but normally, one would think, in a case where there is nothing to the contrary of something having happened you would tend to think it did happen. So at least four men sexually assaulted her in those toilets against her will, and I will come to the detail of it tomorrow. The question is did the fifth one , he was not the fifth in order but he was part of the group, Mr Mohammed Skaf, did he sexually assault her against her will or did she agree to have sex with him but with none of the others? 275 Mohammed Skaf and Chami submit that these directions were erroneous and that the trial miscarried in consequence. 276 Mohammed Skaf was the first man alleged to have had intercourse with the complainant. He submits that what occurred afterwards had no bearing on the consent issue as regards what happened in the Marion Street carpark toilet. Accordingly, it was irrelevant to look at the improbability of the complainant consenting to a series of sexual encounters with different men, all of them strangers, in different places. He was the first and the complainant consented to intercourse with him at the Marion Street carpark, whatever may have happened later. 277 Chami's complaint is a different one, although it seeks to attach itself to that of Mohammed Skaf. He contends that the general bolstering of the complainant's evidence harmed his defence that he believed that the intercourse which took place later, in the red car, was consensual. 278 It is convenient to address Chami's appeal first. It has no merit, particularly bearing in mind that Chami was ultimately at pains to concede the Crown case of lack of consent, confining himself to putting the Crown to proof that he knew the complainant was not consenting. In any event, it was perfectly open to the judge to put the complainant's evidence fully and fairly to the jury, including her (unchallenged) evidence as to the assaults suffered at the hands of the other men. The manner of the directions did not unfairly bolster the complainant's credibility. 279 Mohammed Skaf's submission is a stronger one, because the incident involving him in the Marion Street toilet was the first act of sexual intercourse and because there was evidence of the complainant's non-objection to what he says were the early overtures on the train and in the walk from Bankstown station. 280 But before we address it, we point out that it was Mohammed Skaf's counsel who positively embraced the fact that other assaults had occurred, suggesting that guilty pleas had already been entered (Mr Jankowski's address at Tr p1200). (This submission about the guilty pleas was later withdrawn because it overstated the evidence.) 281 At SU 114-7 the judge recounted in detail the factual material relied upon respectively by the Crown and the defence on the issue of whether the complainant consented to sexual intercourse with Mohammed Skaf in the Marion Street toilet. Towards the end of the passage he said (SU 116-7): It basically was put that all the way to the toilets he was, you know, making it plain what he wanted, and she was willing to be in it. And then when they got there, she was happy to have sex with him; but as far as the others, she didn't want to have anything to do with the others. He, however, on his version, merely walked out and left her to her fate. Well, it's possible, ladies and gentlemen, that she could have consented to have sex with one out of five. I suppose the fact that he showed what could be regarded as extreme callousness afterwards wouldn't necessarily show that that was not so. But certainly you've got to look at all the actions of both the parties during that relevant period. 282 The reference to "extreme callousness" was based upon Mohammed Skaf's statement in his ERISP of 13 November 2000 (Q & A 34) that he was told later that the others "went through her" and that he "didn't really care what they did to her". It was open for this judicial observation to be made. 283 The directions as a whole made it clear that the jury had to give separate consideration to the case against Mohammed Skaf on counts 1 and 2. The factual bases of the defence argument that lack of consent was not established by the Crown were fully laid out before the jury. 284 The submission remains that the judge's reference to the possibility of consent to sex with one out of the five men at the toilet was an invitation to view things globally and to rely upon what happened later as evidence of the complainant's earlier state of mind. In our opinion there was no misdirection or miscarriage. The sexual assaults by other (later) men at the Marion Street toilets were proved without objection and were part of the narrative relevant to other issues. To suggest that it was possible that the complainant consented to sex with Mohammed Skaf and later refused consent to the others was a necessary and proper direction to ensure that the jury did not overlook the need to consider the case against Mohammed Skaf separately. 285 One can envisage a direction about such a possibility so ringing with sarcasm as to be unfair. This was not the situation here, nor was it viewed as such at trial. The Crown is entitled to invoke rule 4. As indicated, the facts relied upon to indicate that the encounter with Mohammed Skaf was consensual were fairly placed before the jury in the summing up. 286 We reject the submission that the directions were to the effect that the jury might permissibly reason that if the complainant refused consent to the others at the toilet, then she must have done likewise for Mohammed Skaf. 287 These grounds fail. Failure to give directions identifying the evidence admissible against Mohammed Skaf (Mohammed Skaf 4 ) 288 This complaint, which was not raised at trial, has no substance. 289 The trial judge provided the jury with a "Summary of facts for each case". In truth it was a brief summary of the issues plus a checklist of the major evidentiary sources led against each accused. For each accused, under the heading "Evidence against [name of accused]" the first item was simply stated as: "Evidence of [Ms T]". 290 The appellant submits that this meant that the jury were not given proper assistance about the evidence of the complainant admissible against him. In fact that information was provided in the summing up itself. The jury were reminded in detail about the complainant's evidence referable to this accused (see eg SU 98-102), including the evidence referable to the particular issues of consent and identification (SU 114-123). The jury were also left in no doubt that the key issues referable to this accused were consent and the accused's belief as to consent as regards the intercourse in the toilet at the Marion Street carpark; and the identification of the accused as the assailant at the industrial complex. Directions on identification warnings (Ghanem 2, Mohammed Skaf 6) 291 The complainant's identification of Ghanem was the key issue in the case against him. And her identification of Mohammed Skaf as the man in the yellow jumper who returned at the industrial complex was critical in relation to his conviction on the counts relating to that place. This is not to assert that it was the only evidence that located these accused at the scene of their alleged crimes (see above). 292 The Written Directions as to identification generally were as follows: Identification The accused Bilal Skaf, Mohammed Ghanem and Mohammed Skaf, (in relation only to the alleged assaults at Chullora) have each, through his counsel, submitted that there is doubt about the identification of himself as the perpetrator of any assault on the complainant. You must approach any evidence of identification with considerable caution before you accept it as reliable. This caution is necessary even if you accept the complainant as completely honest. Many witnesses are honest but not reliable. In this case, the identification is that of the complainant [Ms T]. She identified each of these accused and two other assailants, Tayyab Sheikh and ["H"] by looking at photoboards. She did not identify Mahmoud Chami. However, the reliability of this identification evidence has been challenged by the counsel for Bilal Skaf, Mohammed Skaf and Mohammed Ghanem. I will take you to those challenges. The fact that they have been made means that you must exercise caution in accepting the identification evidence. You have to take into account the opportunity she had for observation, her age, her mental condition, her reliability, the fact that she made two different statements about the events of this night and gave varying accounts to different people, of what had happened. You should also take into account the effects on her mind produced by the ordeal she suffered on this night and the effect that would have had on her ability to identify each of the accused. Was she certain, was she hesitant, was she reliable. You must take into account when the particular identifications were made. You must bear in mind that many people mistakenly identify others and grave miscarriages of justice can occur if identification is mistaken. 293 Ghanem submits that the jury were misdirected when they were informed that there was no doubt, in light of the complainant's photoboard identification of Tayyab Sheikh and H, that those two men were at Bankstown on the night and that they, on the Crown case, both assaulted the complainant (SU 91). 294 He does not suggest that this was an inaccurate statement about the complainant's evidence or the Crown submissions based upon it in relation to these two men. The submission is however that the jury would have been confused into thinking that there was an unchallenged identification of Ghanem as well. 295 We have already indicated why it was open to the judge to recount without undue elaboration the entire narrative of the evening in question even though it touched upon assaults at the hands of men who were not accused at this particular trial. We have also considered the passage at SU 91-2, with its references to the complainant having identified four people clearly, and would reject the submission that the jury might have thought that one of those four people was Ghanem. In our view, the jury would have understood that Ghanem was not one of the four. The matter might have been expressed with greater clarity, but read fairly, the "four" were Tayyab Sheikh, H, Mohammed Skaf and Chami. The passage at SU 90 explained that Chami was one of the four because the complainant had given a description of him and because Chami had admitted his presence in the red car. 296 When the judge turned to consider questions of identification in relation to "the other three" he made it quite explicit that they were Bilal Skaf, Mohammed Skaf (as regards the later assault) and Ghanem. The written and oral directions were replete with instructions about the factual issues relevant to the disputed identification of Ghanem. 297 We would also reject Ghanem's submission that the directions suggested to the jury that the disputed identifications were in some way bolstered by those that were not in issue at the trial. 298 Nor do we accept Ghanem's submission that the composition of the photoboard called for a particular need for a judicial warning on that matter. No such direction was sought trial. 299 Rule 4 should be applied. Ghanem's ground of appeal in its several manifestations should be rejected. 300 Mohamad Skaf's ground of appeal in relation to the identification directions follows a broadly similar path. He too submits that unfairness and confusion were generated by the terms in which the judge referred to the complainant's photoboard identification of Tayyab Sheikh and H, the unchallenged identification of Chami as the man in the red car and the undisputed identification of himself (Mohammed Skaf) as the first man in the Marion Street toilet. He draws particular attention to the remark (at SU 92) that: Well, you have got to take all that into account, you have got to take into account she has identified four people clearly and not identified another one. 301 It is however fanciful to suggest that this comment harmed the appellant on the issue of identification concerning the later incident at the industrial complex. The written and oral directions were as clear as possible that such identification was disputed and that the evidence touching that issue required separate examination (see SU 93-4, 117-120). 302 To the very limited extent that comparison was being drawn between the disputed and undisputed identifications, this was at most neutral and probably favourable to those appellants who raised issues about the complainant's identification of them. But as regards Mohammed Skaf there is a further air of unreality about this present complaint. The real issue touching his guilt in relation to the sexual assault at the industrial complex turned upon the cogency of the evidence that the man who undisputedly was on the train and the first to go into the toilet cubicle at Marion Street was the same as the man in the yellow jumper who turned up at the industrial complex. The complainant gave firm and compelling evidence that he was, and this evidence drew considerable support from the independent material about the mobile phone and the SIM card in it. The jury would not have been deflected from fairly addressing this aspect of the Crown case by the passing remarks directed at the uncontested evidence concerning Tayyab Sheikh and H who had been involved in the Marion Street toiled incidents. There were certainly factual issues relevant to the assessment of the complainant's evidence identifying Mohammed Skaf at the industrial complex, but they were drawn to the attention of the jury ( SU 117-9). 303 These grounds fail. Evidence and Directions as to consciousness of guilt (Bilal Skaf 3-4, Mohammed Skaf 8) 304 The Crown did not open to the jury that it would rely on Bilal Skaf's lies as evidence of consciousness of guilt. But after his plea of guilty to counts 16 and 17 (relating to attempts to pervert the course of justice), the court was informed that the prosecution wished to rely on the underlying material as evidence of consciousness of guilt. The judge correctly ruled that the material was admissible for such use. 305 Despite the form of Bilal Skaf's ground 3, we understand his complaint about consciousness of guilt to be confined to the way it was dealt with in the directions to the jury. 306 In her closing address to the jury the Crown prosecutor did not refer to "consciousness of guilt" in terms. But Bilal Skaf's counsel addressed the jury on the matter, suggesting the subject matter of the guilty pleas did not evidence consciousness of guilt (Tr p1155). 307 The written directions given to the jury included the following: 5. Consciousness of Guilt • The Crown says that the accused Bilal Skaf has by his actions before this trial exhibited a consciousness of guilt. • It says that there is evidence that he made out a false statement to police seeking to provide a false alibi for himself and for his brother Mohammed Skaf. ( Exhibit C17, C42 and C43). • It also says that he sought to recruit Susan Bakry, Tayyab Sheikh and Tahir Sheikh to support these false alibis. (see Exhibits C42 and C43). • If you are satisfied that this is so and that these lies are about important matters in the trial (and you might think that providing false alibis to the police about himself and his brother are lies about important matters) AND that the lies show he has a knowledge of the offence or some aspect of it, AND that he told the lies because he knew that the truth about the matter about which he lied would implicate him in the matter, or, to put it another way, because he had a realisation and a fear of the truth, then you can take those lies into account for the purpose of concluding that he was acting with a consciousness of guilt of the offences charged against him. 308 There were further directions on consciousness of guilt in the summing up. The judge told the jury that there was evidence that Bilal Skaf had made a false statement to police to provide a false alibi for "himself and his brother Mohammed Skaf". He continued (SU 80-1): Now those matters concern not just his brother, but also him. He is said by the Crown to be involved in serious sexual assaults on this night. So if you're satisfied that he has done that, that these matters are lies, I've expressed a view - there's no two ways about it – I've expressed a view about what they are. Like all views about facts in this case, they are my views, but you're entitled to agree or disagree with them. If you're satisfied that he's done those things, and it would seem to me that you probably would be, and those lies are about important matters in the trial - and I've put in the paragraph you might think providing false alibis to police about himself and his brother would be important matters - and they show, the lies show he has a knowledge of the offence or offences or some aspect of it, and he told the lies because he knew the truth about the matter about which he lied would implicate him in the matter, or because he had a realisation of the truth and a fear of the truth, you can take them into account for the purpose of concluding that he was acting with a consciousness of guilt of the offences charged against him. So if you think that he was doing these things because he was aware he was involved in committing these offences and he was doing it, that's his motivation for being involved in these false alibis, that that shows there is present in his mind a consciousness of guilt, then you can take that into account as evidence against him of the offences for which he's been charged. If, however you think there's a reasonable possibility that he was telling lies for some reason not connected with a consciousness of guilt, then you can't use it for that purpose. 309 Bilal Skaf accepts that the written directions were in accordance with Edwards v The Queen (1993) 178 CLR 193. His complaint in this Court concerns the failure of the trial judge to direct the jury that other potential reasons for his conduct were a desire to protect his brother, or a dishonest attempt to escape an unjust accusation. He cites well-known judicial warnings about the risk that juries may misapply evidence of this nature, coupled with injunctions to trial judges to instruct juries in appropriate cases that there may be reasons for telling a lie apart from the realisation of guilt and that those reasons should be considered and excluded before using the lie as an admission of guilt (R v Lucas [1981] QB 720 at 724, R v Sutton (1986) 5 NSWLR 697 at 701, Edwards at 210-11). 310 Bilal Skaf submits that the judge erred in permitting the Crown to rely on this material as evidence of consciousness of guilt. The deceptive conduct was directed at the protection of his brother (who had already been interviewed by the police) and nothing else. Bilal Skaf was not identified by the appellant until 15 November 2000. Alternatively, it is submitted that the facts called for strong directions about other potential reasons for lying, particularly in a trial where Bilal Skaf did not give evidence. 311 The Crown argued before us, as it had at trial (Tr pp662, 675), that the conduct had a dual aspect that included Bilal Skaf seeking assistance to corroborate his version of events that he was at home as well as his brother. 312 The real issue on the facts was whether the jury should conclude that Bilal Skaf set about attempting to gather false evidence in order to protect himself as well as his brother. If so this would be clear evidence of his consciousness of guilt. Bilal Skaf obviously knew that the police were investigating allegations of sexual assault concerning this complainant and the events of the particular evening. 313 The written directions required the jury to consider the possibility that factors other than consciousness of his own guilt motivated Bilal Skaf to make the intercepted phone calls (see above). Bilal Skaf's counsel urged the jury to view the conversations as directed solely to garnering support for his brother's case (Tr pp1132-3, 1155.). The material was certainly capable of supporting a wider view. The real issue was factual and the jury received adequate instruction on it. No further directions were sought. 314 Rule 4 applies. This ground fails. 315 Mohammed Skaf had admittedly told significant lies in his early ERISPs. Yet the written and oral directions squarely instructed the jury that consciousness of guilt affected only Bilal Skaf. The jury were correctly told that Mohammed Skaf's lies in the early ERISPs were relevant only to the credibility of the accounts he gave in the later ERISPs. (SU 78 and Written Directions). 316 When dealing with Chami, the judge gave exemplary directions as to possible reasons for telling lies (SU 71). He then recounted Mohammed Skaf's ERISPs and referred to the Crown submissions about deliberate lies and their impact on the credibility of his case based upon his last ERISP (SU 77-8). The jury told (SU 78): Well, you look at his explanation for why he told those lies. 317 Mohammed Skaf submits that the jury should have been warned against the danger of concluding that he lied because he was guilty. Absence of consent on the complainant's part could not be proved through reliance upon the ERISP lies where the Crown had not asserted consciousness of guilt. Yet there was a danger that the jury might do this, especially if there was no attempt to isolate the particular matters which could be established as lies. 318 This last submission is uncompelling. The central and obvious lie was the false story about the visit to Canberra. 319 Mohammed Skaf cites Zoneff v The Queen (2000) 200 CLR 234. That was a case in which the trial judge raised the issue of consciousness of guilt but failed to give a full Edwards direction. By contrast the present jury were told not to consider consciousness of guilt in relation to Mohammed Skaf. This removed any danger of inappropriate reasoning based upon consciousness of guilt (cf Dhanhoa v The Queen (2003) 77 ALJR 1433, [2003] HCA 40 at [34]). 320 The instruction that "people have many reasons" for telling lies sufficiently reminded the jury that lying did not necessarily betoken guilt. The other directions amply brought home the need to be satisfied on the key issues of consent and identification and the centrality of the complainant's evidence on these matters. 321 These grounds fail. General lack of balance and atmosphere of prejudice (Chami 7, Mohammed Skaf 10) 322 These appellants submit that the manner in which the trial judge conducted the proceedings and the terms of his summing up resulted in the jury's deliberations being conducted in an atmosphere of unfair prejudice. This portmanteau complaint partly repeats earlier grounds of appeal and differs slightly as between the appellants when broken down into specific integers. 323 Chami points to the following: i) the refusal to permit counsel to address on his mistaken belief that the complainant was not consenting ( cf Chami 4); ii) references in the summing up to the assaults earlier committed by others not on trial as having been "established through lack of challenge" (cf Chami 2); iii) the Crown prosecutor's "comment" made during the cross-examination of Mr Chami's sister-in-law that he would not "have the opportunity" of cross-examining Chami (cf Chami 5); iv) the comment made by the Crown prosecutor during closing address referring to the complainant having been subjected "to a cruel ordeal" in having to give evidence at the trial; v) the judicial statement made in the course of the following cross-examination of Ghanem (Tr p 1023) : Q. Did you have any discussions with Bilal Skaf about the events of the night before? A. What? What happened the night before? HIS HONOUR: Q. The 30 August was the night on which [Ms T ] was assaulted by four groups of men. A. Yeah. 324 We have already dealt with items (i)-(iii) individually. 325 As to (iv), the submission overstates the prosecutor's remarks. They were directed specifically to the process of making complaint to the police (see Tr p1095). If they may have conveyed a hint of reference to her role as a witness the connexion was fleeting. Nothing reflected on the conduct of any cross-examiner. 326 As to (v), the transcript does not disclose the manner in which this statement was made. It is submitted that it was uttered with a degree of emphasis and conviction that would have conveyed to everyone in the crowded courtroom that the judge had formed a firm and committed view about the guilt of the appellants. There is no evidence supporting this proposition. 327 His Honour's comment attracted no immediate attention from any of the counsel at the trial. Ghanem's cross-examination continued over nine further pages of transcript until the morning tea adjournment at Tr p1032 . After the adjournment it continued until its completion (Tr p1046). Ghanem called another witness and then closed his case. Chami then commenced his case, calling three character witnesses. It was during the Crown prosecutor's cross-examination of one of those witnesses that the comment about not having the opportunity of cross examining Chami was made. Chami's counsel then made the unsuccessful application for the discharge of the jury based upon that alleged "comment" that we have already dealt with as a substantive ground of appeal. Then followed a successful application by Ghanem for a directed verdict on one of the counts in the indictment. 328 The Crown prosecutor then commenced her address (Tr p 1083). It was obviously fairly late in the afternoon because it was not very long before the trial was adjourned to the next morning. 329 It was only the next morning that Chami's counsel applied for a discharge of the jury (Tr p1089). Ms Francis raised three matters, two of them being items (i) and (iii) as set out above. The application was refused. As regards item (iv) Finnane DCJ said that he was unable to see that his statement could in any way have prejudiced any of the accused. The evidence showed that the complainant had been assaulted by four groups of men. So far as Chami was concerned, he did not dispute that other persons may have assaulted Ms T, but he said that he did not do so himself. The judge added that the jury would of course have to be told that it was a matter for them to determine whether in fact anybody was assaulted or not assaulted. They would also be told that, while the trial judge was entitled to make comments on the facts, it would be the jury's version of the facts, not his, that counted. [Directions along these lines were given later, in the summing up: see SU 10-12] As regards item (iii), there had already been a ruling on this matter which the judge declined to change. His Honour dealt with one other matter that had been raised and that is no longer in issue. The application to discharge the jury was refused. 330 Counsel for Ghanem (Ms Langley) later sought a discharge based upon the "cruel ordeal" remark (Tr p1109). The judge declined, indicating that he proposed to say something during the summing up about the process of trial and the examination and cross examination of the complainant (Tr p1110). It appears that this was overlooked and the judge was not reminded about the matter. 331 In this Court, Chami relies upon the totality of these matters in support of his compendious ground of appeal. In addition, it is submitted that it was particularly inappropriate for the judge to have said in his reasons for declining the discharge that "I am unable to see that my making that statement [about four groups of men assaulting Ms T] could in any way prejudice any of the accused in any respect since it is a mere statement of fact as I can see it". Chami submits that such a remark was tantamount to a finding of guilt by the trial judge during the pendency of the trial. This submission dramatically overstates the position. In the first place, the judge's reasons for refusing the discharge were not disclosed to the jury. Secondly, those reasons were not seen then or now as the basis for an objection grounded upon a reasonable apprehension of bias. Thirdly, the remarks were little more than a firm assertion of a judicial right that was never taken up in the present trial. As indicated, the summing up contained standard directions as to the respective roles of judge and jury. Nothing was put to the jury about the judge having any opinion as to whether any of the accused before them were guilty of the offences charged. As regards others who were not before the jury, the complainant had given evidence without objection, cross-examination or challenge as to assaults committed in the toilets at the Marion Street car park and in the black car. There is no need to supplement our earlier reasons concluding that nothing relating to this evidence caused any miscarriage. 332 Similar reasoning applies to the complaint based on item (v) above. The judicial clarification offered to Mr Ghanem to assist him in understanding the question put in cross-examination would not have been seen by the jury as expressing any view relevant to the guilt of the four accused at trial. The failure to raise prompt objection and the absence of evidence supporting the submission that the judge spoke with a degree of emphasis and conviction that inferred guilt means that we are entirely unpersuaded by this particular challenge to the fairness of the trial. 333 None of the five matters complained of, taken singly or together, establish a miscarriage of justice. 334 Mohamed Skaf adopted Chami's submissions in aid of his identical ground of appeal, save that he also invoked the cumulative effect of his own nine grounds of appeal. We have considered his complaint in this context but equally find it to be without merit. 335 These grounds of appeal must be rejected. Unreasonable verdict (Bilal Skaf 1) 336 Bilal Skaf submitted that it was not open to the jury to be satisfied beyond reasonable doubt that the complainant had positively and reliably identified him. He also submitted under this ground that he had suffered unfair prejudice from the fact that Chami in his ERISP had implicated him to a degree (Ex C33, pp223, 227-32). Chami did not give evidence. The jury were given directions that this ERISP was only to be regarded as evidence in the case against Chami. 337 The jury were told repeatedly that the Crown case against Bilal Skaf depended upon their acceptance of the complainant's evidence. The Directions of Law concluded with the instruction: Unless you are satisfied beyond reasonable doubt that she has correctly and reliably identified each accused and correctly and reliably established to your satisfaction that he did the things she claims, you must find that accused not guilty. However, if you are satisfied beyond reasonable doubt that she has correctly identified the accused and his crimes then you should convict him. 338 Bilal Skaf submits that the "identification" of him by the complainant was not in fact identification evidence at all. The form of this submission suggests that the real complaint concerns wrongful admission of evidence. However, an attack on the conviction itself on the ground that it was unreasonable having regard to the identification evidence is not lacking in precedent (see Pitkin v The Queen (1995) 69 ALJR 612). The nub of the complaint in the written and oral submissions centres upon the words used by the complainant when she was shown the array of photos that included a photo of the appellant. The complainant went from "No 15 sort of looks familiar" to "I think he was the offender identified as Sam 2" to "he looks a lot like him". 339 Citing Pitkin, Bilal Skaf submits that this was not an act of identification at all, but rather a statement that he resembled the offender. In addition, the procedure took place two and a half months after the event and the quality of the photograph that was used to identify him was poor. An application at trial for the identification evidence to be withdrawn because of unfairness in the array was rejected (Tr p623-4). 340 Pitkin is distinguishable, because the conviction was based solely upon the purported identification of a witness who said that the offender "looked like" the person in the photograph. 341 Here the complainant's evidence was considerably stronger. The jury had the video-recording of the whole process. The complainant looked at the photoboard and said "Number 15 sort of looks familiar" in relation to the person she called "Sam 2". Detective Porta asked her how sure she was and she said "I'm not 100% sure… but he looks a hell of a lot like the person I identified as Sam 2" (Tr p384). His eyebrows stood out to her. In her evidence she explained that she was not 100% sure because it was not a very good photo (Tr pp420, 445). 342 There was also the additional evidence implicating Bilal Skaf to which we have already drawn attention. Orders 343 The appeals against conviction of Mahmoud Chami, Bilal Skaf and Mohammed Skaf are dismissed. Mohamed Ghanem's appeal is allowed. The conviction and sentence are set aside and a new trial is ordered. ****************** Last Modified: 04/04/2008 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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