New South Wales Court of Criminal Appeal CITATION: Chahine v R [2006] NSWCCA 179 HEARING DATE(S): 13 April 2006 JUDGMENT DATE: 7 June 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 2; Johnson J at 3 DECISION: Appeal against conviction dismissed. CATCHWORDS: CRIMINAL LAW - appeal against conviction - aggravated robbery - Crown case based upon circumstantial evidence - location of appellant's fingerprints at crime scene and on getaway car - victim identified another person and excluded appellant in photographic identification - erroneous direction concerning factual findings favourable to appellant - whether miscarriage of justice - whether verdict unreasonable LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912 R v G (NSW Court of Criminal Appeal, 17 February 1992, BC9203055) Jones v Dunkel (1959) 101 CLR 298 Dyers v The Queen (2002) 210 CLR 285 Aslett v Regina [2006] NSWCCA 49 Woolmington v Director of Public Prosecutions (1935) AC 462 R v Youssef (1990) 50 A Crim R 1 R v Kanaan [2005] NSWCCA 385 Papakosmas v The Queen (1999) 196 CLR 297 R v Villa [2005] NSWCCA 4 R v Wilson (2005) 62 NSWLR 346 TKWJ v The Queen (2002) 212 CLR 124 Nudd v The Queen (2006) 80 ALJR 614 CASES CITED: Peacock v The King (1911) 13 CLR 619 R v Ayoub [2004] NSWCCA 209 Weiss v The Queen (2005) 80 ALJR 444; [2005] HCA 81 Knight v The Queen (1992) 175 CLR 495 R v Zouras [2002] VSCA 182 R v Cable (1947) 47 SR 183 R v Ingivald (NSW Court of Criminal Appeal, 11 April 1989, unreported) R v Chahine [2006] NSWCCA 99 R v Kaldor (2004) 150 A Crim R 271 R v Rose (2002) 55 NSWLR 701 Kanaan v R [2006] NSWCCA 109 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] 213 CLR 487 PARTIES: Shadi Chahine (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2005/345 COUNSEL: Mr P Hamill SC (Appellant) Ms J Dwyer (Respondent) SOLICITORS: Nyman Gibson Stewart (Appellant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0446 LOWER COURT JUDICIAL OFFICER: Phegan DCJ LOWER COURT DATE OF DECISION: 8 November 2004 (conviction) 24 June 2005 (sentence) IN THE supreme COURT OF new south wales court of CRIMINAL APPEAL 2005/345 McCLELLAN CJ at CL HOEBEN J JOHNSON J 7 June 2006 SHADI CHAHINE v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Johnson J. 2 HOEBEN J: I agree with Johnson J. 3 JOHNSON J: The Appellant, Shadi Chahine, appeals against conviction upon a charge of aggravated robbery under s.95(1) Crimes Act 1900. The Appellant stood trial in the Sydney District Court before Phegan DCJ and a jury between 2 and 8 November 2004. On the lastmentioned date, the jury returned a verdict of guilty. 4 On 24 June 2005, Phegan DCJ sentenced the Appellant to a term of imprisonment comprising a non-parole period of two years and 10 months commencing on 21 December 2003 and expiring on 20 October 2006 with a balance of term of one year and two months to expire on 20 December 2007. Accordingly, the Appellant was sentenced to an effective term of four years' imprisonment with a non-parole period of two years and 10 months. 5 The present appeal relates to conviction only. No challenge has been made to the sentence imposed by the learned sentencing Judge. Certificate under s.5(1)(b) Criminal Appeal Act 1912 6 After sentence was imposed on the Appellant on 24 June 2005, counsel then appearing for him made an application to Phegan DCJ for a "certificate of appeal" (ROS21-22). No grounds were formulated at that time for inclusion in a certificate. The Crown representative indicated that the Crown did not wish to be heard on the matter. Phegan DCJ granted a certificate. 7 When the appeal was called on before this Court on 13 April 2006, Mr Hamill SC, for the Appellant, informed the Court that a certificate had not been provided by his Honour although it was said that a draft had recently been provided to him. 8 Section 5(1) Criminal Appeal Act 1912 is in the following terms: "5 Right of appeal in criminal cases (1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on the person's conviction. …" 9 Where a certificate is granted by the trial judge under s.5(1)(b) of the Act, it has the consequence that an appellant may appeal against conviction on any ground of appeal which involves a question of fact alone or a question of mixed fact and law without the leave of the Court of Criminal Appeal. 10 In R v G (NSW Court of Criminal Appeal, 17 February 1992, BC9203055), Campbell J (Gleeson CJ and Kirby P agreeing) at page 29 observed that it was inappropriate for a s.5(1)(b) certificate to be granted unless there is some matter of substance to be raised. His Honour observed that a risk of injustice does not arise from the refusal of a certificate because application can always be made to this Court for leave to appeal. 11 It does not appear from the transcript in the present case that grounds of appeal were articulated before Phegan DCJ to allow his Honour to decide whether a s.5(1)(b) certificate should be issued. The provision is based upon the premise that grounds will be identified for this purpose. Where defence counsel intends to apply to a trial judge for a s.5(1)(b) certificate, it is appropriate that counsel be in a position to identify, preferably in writing, the grounds sought to be included in the certificate. That did not occur in this case. The failure to follow such a procedure appears to have resulted in the unsatisfactory position that no certificate has in fact been issued by the trial judge which can be placed before this Court. 12 In circumstances where the Crown did not seek to be heard before Phegan DCJ on the application for a certificate, the Court took the view at the hearing of the present appeal that the Appellant ought be granted leave by this Court under s.5(1)(b) to rely upon the grounds contained in his Notice of Appeal. Grounds of Appeal 13 The Appellant relies upon four grounds of appeal: (1) The verdict is unreasonable and cannot be supported having regard to the evidence. (2) The learned trial Judge erred in upholding an objection which denied counsel for the accused the opportunity to explore the question of whether, and how, the man nominated by the victim could be excluded as being the perpetrator of the crime. (3) The learned trial Judge erred in failing to direct the jury that the failure of the prosecution to call the man nominated by the victim was, in the absence of any explanation, a matter properly to be taken into account in assessing the prosecution case. (4) The learned trial Judge misdirected the jury as to the onus and standard of proof. 14 The Appellant was granted leave, at the hearing of the appeal, to rely upon Ground 4. The Offence Charged 15 The Appellant stood trial upon an indictment alleging that, on 5 August 2003, at Randwick in the State of New South Wales, he did rob Neil Nicholson of certain property, to wit a quantity of surveillance tapes and one safe containing a quantity of Australian currency, and at the time of robbery used corporal violence on Neil Nicholson. The Evidence at Trial 16 It was not disputed at the trial that, at about 3.10 am on 5 August 2003, the victim, Mr Nicholson, was robbed by two men whilst working as a parking attendant at the car park at the Prince of Wales Hospital, Randwick. The issue at the trial was whether the Appellant was one of the two robbers. 17 A co-accused, Ali Saleh, pleaded guilty to the charge on 1 November 2004. Mr Saleh did not give evidence at the Appellant's trial. In due course, Mr Saleh was sentenced to a non-parole period of one year and 10 months commencing on 22 October 2004 and expiring on 21 August 2006 with a balance of term of one year and five months expiring on 21 January 2008. Mr Saleh's effective sentence was one of imprisonment for three years and three months with a non-parole period of one year and 10 months. 18 It was the evidence of Mr Nicholson that at about 3.10 am on 5 August 2003, a man came to the inquiry window at the car park office and asked if there was a toilet nearby. The Crown alleged that this man was the Appellant. Mr Nicholson directed the man to the lifts, having told him that he needed to go to the reception area of the hospital. Mr Nicholson heard a noise behind him and he turned and saw a second man half-way through the office window. 19 Mr Nicholson described the first man as being five foot seven or eight inches tall with a stocky build, of Mediterranean, Greek appearance with short crew-cut hair and aged 20 to 25 years old. He had a heavy growth of hair on the lower part of his face which Mr Nicholson described as "like stubble" as though he had not shaved for the day. He did not have a beard or moustache (T4, 2 November 2004). 20 It was accepted at trial that the Appellant was five foot five inches or 162.5 cm tall (T201). 21 Mr Nicholson described the second man as being about six feet tall, slim, Mediterranean appearance with crew-cut hair and very dark stubble (T6, 2 November 2004). It was the Crown case that Mr Saleh was the second man. 22 Mr Nicholson moved towards the second man who had come through the inquiry window and knocked him back. Mr Nicholson grabbed the second man and the first man came from behind and grabbed Mr Nicholson and pulled him back. A struggle ensued between Mr Nicholson and the two men and they forced him to the ground in the office area. The first man grabbed his legs and held him down and the second man got down on top of his chest and punched him in the face several times. The first man threw a few punches as well (T7-8, 2 November 2004). 23 By this time, Mr Nicholson realised that he had no choice. He told the men that he gave up and that they could do what they wanted. The second man continued to hit Mr Nicholson around the face and mouth, but then stopped and taped up his wrists and legs with silver masking tape (T8, 2 November 2004). Mr Nicholson was then dragged along the ground into the kitchen area of the office. 24 The first man went into the manager's office where the safes were kept. The second man went into the main office where the till and video recorders were located. Mr Nicholson heard banging and one of the men said "I found it". The second man went into the manager's office, and Mr Nicholson heard more banging. He came out a short time later with one of the video tapes in his hand. This man left the office and Mr Nicholson heard the sound of a motor vehicle. He saw the first man pushing the safe along the ground towards the exit door. The first man told the second man "give me a hand". Mr Nicholson caught a glimpse of the motor vehicle which he described as a white old-model vehicle. 25 Mr Nicholson loosened his bonds and called the police and security. He said that about 15 to 20 minutes had passed between the time when he spoke to the first man and the time when he rang the police (T10, 2 November 2004). The white car left the hospital car park heading in the direction of Barker Street, Randwick. 26 At about 4.10 am on 5 August 2003, Tracy Stokes observed a white 1978 Toyota Celica VAW 849 parked on the eastern side of Harbourne Road, Kingsford with the driver-side wheels up on the gutter. The vehicle had crashed into the rear-driver's door of a white van. The motor was still running, the headlights were on and the driver's side door was open. This spot was about 1.5 kilometres from the scene of the robbery at the Prince of Wales Hospital car park. A large safe was sitting on the front-passenger's seat. A video tape was on the floor. These were the safe and video tape which had been stolen from the Prince of Wales Hospital car park area earlier that morning. 27 The office area of the car park and the white Toyota Celica motor vehicle were subjected to thorough fingerprint examination. A fingerprint of the Appellant's left index finger was found on the interior front left of the inquiry window in the car park office on the right frame of the sliding glass window. This fingerprint was approximately 80 cms from the base of the window and about 1.76 metres from the floor (T109, 185-186). A fingerprint of the Appellant's left middle finger was found on the exterior of the front-passenger door of the Toyota Celica motor vehicle (T101, 111-112, 125, 129). The fingerprints of Mr Saleh were found on the interior and exterior of the Toyota Celica motor vehicle and on a cigarette packet and a tape bundle located inside the vehicle (T102, 129). 28 At trial, there was no dispute that the Appellant's fingerprints had been located inside the office window and on the exterior of the Toyota Celica motor vehicle. The location of the Appellant's fingerprints in these two different places, comprising the crime scene and the getaway vehicle, provided the foundation for the Crown case against the Appellant. 29 On 12 September 2003, Mr Nicholson attended Maroubra Police Station and looked at photographs of 12 men. The Appellant, who had been arrested on 4 September 2003, was depicted in photograph 9. Mr Nicholson told Detective Leading Senior Constable Woodward that the man depicted in photograph 12 was the person who had come to the inquiry window in the car park. He said that the men depicted in photographs 1 and 8 had similar features, namely, their eyes and the shape of their faces and noses. Mr Nicholson was asked by Detective Woodward which photographs he considered were definitely not similar to the offenders and Mr Nicholson indicated photographs 2, 3, 4, 5, 6, 7, 9, 10 and 11 (T14-15). 30 At trial, counsel for the Appellant (who did not appear on the appeal), placed heavy emphasis upon Mr Nicholson's photographic identification of another person on 12 September 2003 and his exclusion of the photograph of the Appellant at that time. 31 Mr James Ali was called in the Crown case, apparently at the request of the Appellant's legal representatives. Mr Ali worked as a parking attendant at the Prince of Wales Hospital. Mr Ali's evidence fluctuated in the course of examination in chief, cross-examination and re-examination. The Appellant's trial counsel cross-examined him in an effort to confirm that Mr Ali had seen the Appellant on an earlier occasion or occasions in the Prince of Wales Hospital car park and in the vicinity of the window near the inquiry office. Further reference will be made to Mr Ali's evidence later in this judgment. 32 The Appellant did not give evidence and no witness was called in the defence case. 33 Although a number of other witnesses were called in the Crown case, it is not presently necessary to refer to their evidence. Put shortly, the Crown submitted to the jury that the circumstantial evidence in the form of two fingerprints of the Appellant in two different places associated with the crime was such as to exclude any reasonable hypothesis consistent with innocence and ought lead the jury to be satisfied beyond reasonable doubt of the Appellant's guilt. The Crown submitted that the jury would be satisfied that Mr Nicholson was mistaken in his identification of the man in photograph 12 and his exclusion of the Appellant in photograph 9. In this regard, the Crown invited the jury to examine the 12 photographs viewed by Mr Nicholson on 12 September 2003 and, in particular, photographs 9 and 12. The Crown submitted that there were clear similarities in the features of the persons depicted in photographs 9 and 12. The Crown submitted that the general description provided by Mr Nicholson of the first man was consistent with the description of the Appellant. 34 Trial counsel for the Appellant submitted that the jury would not be satisfied beyond reasonable doubt of the guilt of the Appellant. Heavy reliance was placed upon Mr Nicholson's identification of the man in photograph 12 and the exclusion of the Appellant in photograph 9. It was submitted that the evidence of Mr Ali left open the reasonable possibility that the Appellant had been in the vicinity of the inquiry office window, and thus an innocent explanation may be available for the fingerprint located inside that window. It was submitted that an innocent explanation may be readily available for the location of the Appellant's fingerprint on the exterior of the Toyota Celica motor vehicle. It was emphasised that no fingerprints of the Appellant had been identified inside the vehicle nor inside the office area of the car park. The Grounds of Appeal 35 I propose to consider Grounds 2, 3 and 4 and then return to Ground 1. Ground 2 - Cross-Examination of Detective Woodward 36 During the cross-examination of the officer-in-charge, Detective Woodward, the following exchange occurred (T194-5): "Q. The man who was selected by Mr Nicholson in photograph number 12 his name was Mustapha Jebara, is that right. J E B A R A? A. That's correct. Q. That man, I think you have told us, was at liberty at the time? A. Yes, that's correct. Q. And so it would it (sic) be fair to say from that, that the police would have absolutely no idea where he was at the time this crime was committed? A. That's correct. Q. And he can't be, therefore, he can't can (sic) excluded as the person who possibly committed this crime. Would you agree with that? A. I have excluded him from the crime. Q. Sorry? A. I have excluded him from the crime. Q. In your mind, you have made up your mind who has committed the crime, no doubt, is that right? OBJECTION CROWN PROSECUTOR: What my learned friend is trying to do here is usurp the functions of the Court in making a determination in this. COUNSEL: I agree, I didn't expect the answer, let me rephrase it. COUNSEL: Q. As far as all your investigation is concerned in relation to that man, Mr Jebara, you can not positively exclude him from being the offender at that crime. Do you agree with that? OBJECTION CROWN PROSECUTOR: That is precisely my objection. That is what we are asking this Court to do, not the police officer. COUNSEL: I'm not asking, with all due respect to the Crown, that is not what I am doing. I am not asking this officer to say, 'Man number 12 did it'. All I am asking is, is he able to exclude him by the normal means, such as the Crown is able to say that person was in gaol. HIS HONOUR: I think we might have to sort this out in the absence of the jury." 37 Counsel made submissions on the objection in the absence of the jury. Phegan DCJ then gave the following ruling in the absence of the jury (T196.38): "HIS HONOUR: That all follows from the answer to the question that his whereabouts remain unknown. That is all implicit in that evidence. Obviously there is no evidence he was at a party or anywhere else at the time. We simply don't know. Well, the police don't know. And therefore the jury has no source of information about where he was; except they know he wasn't in custody. Well, that is fine. But to probe further, it seems to me, is an exercise in the evaluation of the thoroughness of the police investigation, which as such has got nothing to do with these proceedings, and certainly nothing to do with the guilt or innocence of the accused. I simply cannot see where this can legitimately take the evidence, except to start to run hares in the mind of jury that they ought not to have to grapple with." 38 Immediately upon the return of the jury, his Honour gave the following direction (T199.3): 'HIS HONOUR: Members of the jury, can I just first of all take up the matter that was raised from the bar table just before you retired for what turned out to be your morning tea break. You will remember that there was some questions put about the person who was in photograph number 12 of Exhibit D who was identified by Mr Nicholson and evidence was given that at the time he was as far as the police knew at liberty and although his whereabouts were not known. All I want to say is that is as far as the evidence in so far as it is relevant to these proceedings should be taken, so you could simply disregard any further exchange that took place about that particular matter beyond that point." Submissions 39 Mr Hamill SC submitted that the learned trial Judge erred in disallowing cross-examination of the police officer relevant to the possibility that another man had committed the crime. It was submitted that it was necessary for the jury to be satisfied beyond reasonable doubt that the identification by Mr Nicholson was wrong and that the evidence excluded the possibility that the man identified by him was the true perpetrator. It was submitted that once the police officer had ventured his own opinion that he had "excluded [Jebara] from the crime", considerations of fairness required that the cross-examiner be permitted to test the basis of that evidence. It was submitted that the jury may have been left with the perhaps erroneous impression that the police had evidence or information which logically excluded Mr Jebara as being present at the time of the robbery. 40 The Crown submitted that the trial Judge did not err in upholding the objection relevant to this ground. It was submitted that his Honour's conclusion that the line of questioning was not relevant was clearly correct. If allowed, the line of questioning would achieve no more than to elicit inadmissible opinion evidence and, accordingly, the evidence was properly disallowed. The Crown submitted that there was no other evidence linking the man in photograph 12 (Mr Jebara) with the robbery other than Mr Nicholson's photographic identification. The evidence before the jury was that Mr Jebara was not in custody at the time of the robbery and his whereabouts were unknown. Had his Honour allowed the line of questioning, the Crown submitted that the answers may have been detrimental to the Appellant's case. Decision 41 It was open to trial defence counsel to explore in cross-examination of the officer-in-charge the whereabouts of Mr Jebara at the time of the robbery. Evidence was before the jury that Mr Jebara was not in custody at the time of the robbery and that police did not know his whereabouts at that time. In answer to a direct question in cross-examination as to whether he had been excluded by Detective Woodward as the offender, the witness answered that he had indeed been excluded. Thereafter, following submissions in the absence of the jury, his Honour disallowed further cross-examination on this topic but proceeded to direct the jury to pay no regard to evidence concerning Mr Jebara except that which indicated that he was not in custody at the time of the robbery and that police were unaware of his whereabouts at the time. This was a favourable direction for the Appellant. It is difficult to see, upon any rational analysis, how cross-examination of Detective Woodward could have advanced the Appellant's case. Rather, a favourable direction was given by the trial judge. 42 The Crown Prosecutor did not refer to this issue during her closing address. Trial defence counsel said the following to the jury (T236.44): "Now the Crown has got gone (sic) to quite a bit of effort to dampen the person number 12. Well, to us, the defence, it doesn't really matter. We are not standing here saying to you, Number 12 the Man, Nicholson got it right. He is out at large, he is at liberty nobody knew where he was. He did it. I am not standing here saying that at all. Maybe he did. We don't know. What I am relying upon as far as Mr Nicholson's evidence is, is how he excluded Mr Chahine." 43 Phegan DCJ did not touch upon this evidence in the summing up nor was any application made for a further direction dealing with this issue. 44 In these circumstances, I am not satisfied that the trial judge fell into error in rejecting the question asked by defence counsel. The evidence which had been given concerning Mr Jebara's whereabouts at the time of the robbery favoured the Appellant. His Honour's direction to the jury also favoured the Appellant. The issue did not loom again in the trial. I am not satisfied that any unfairness to the Appellant resulted. I reject Ground 3. Ground 3 - Failure to Give a Jones v Dunkel Direction Submissions 45 The Crown did not call Mr Jebara as a witness at the trial. Mr Hamill SC submitted that the failure of the Crown to call Mr Jebara as a witness ought to have resulted in the trial judge giving special directions to the jury as to the forensic implications of that failure. In particular, it was submitted that the jury was entitled more readily to draw innocent inferences (favourable to the Appellant) from all of the evidence in view of the failure of the Crown to call the man nominated by Mr Nicholson as playing the role in the robbery which it sought to attribute to the Appellant. 46 Mr Hamill SC referred to the history and scope of directions emanating from the rule in Jones v Dunkel (1959) 101 CLR 298 and referred the Court to the decision of the High Court of Australia in Dyers v The Queen (2002) 210 CLR 285. He acknowledged the following statement of Gaudron and Hayne JJ in Dyers at 291 [6]: "Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses." 47 Mr Hamill SC submitted that, in the present case, given that Mr Nicholson had identified a named person whose whereabouts at the time of the offence were unknown, then that person was a witness to whom the rule in Jones v Dunkel applied. He did not suggest that the Crown had breached any duty by failing to call Mr Jebara and he acknowledged that there was no cross-examination (or other evidence) as to why Mr Jebara was not called at the trial. He submitted, however, that in the peculiar circumstances whereby Mr Jebara's photograph had been nominated by Mr Nicholson, and in view of the requirement that the prosecution exclude the possibility that it was Mr Jebara, and not the Appellant, who committed the crime, the failure to call him was a matter properly to be taken into account in assessing whether the prosecution had excluded all reasonable hypotheses consistent with innocence. 48 The Crown emphasised that no direction had been sought from the trial judge. Leave pursuant to Rule 4 Criminal Appeal Rules was required to argue this ground. As the Appellant did not contend that the Crown had breached a duty to call Mr Jebara to give evidence, it was submitted that the observations of Gaudron and Hayne JJ in Dyers, above, were apposite. As there was no cross-examination on the issue, there was no evidence before the trial court to lay the foundation for such a direction: Aslett v Regina [2006] NSWCCA 49 at paragraph 66. The Crown submitted that leave to argue this ground ought be refused. Decision 49 Critical to the resolution of this ground is the failure of trial defence counsel to seek a Jones v Dunkel direction from the trial judge with respect to Mr Jebara. It is not surprising that no such direction was sought in this case. No witness had been cross-examined so as to raise this issue. Counsel did not address the jury in a way that invited any inference to be drawn adverse to the Crown case, or favourable to the Appellant, arising from the Crown's failure to call Mr Jebara as a witness. The observations of Gaudron and Hayne JJ in Dyers provide a further difficulty, in principle, for the Appellant seeking such a direction. I do not consider that the trial judge has erred in this case in not giving a Jones v Dunkel direction. In my view, leave to argue this ground under Rule 4 ought be refused. Ground 4 - The Onus and Standard of Proof Ground 50 At the hearing of the appeal, Mr Hamill SC was granted leave to add a further ground of appeal. He submitted that the learned trial judge, in one area, misdirected the jury as to the onus and standard of proof. 51 In the course of the summing up, his Honour directed the jury in orthodox terms that the prosecution bore the onus of proof and that the standard of proof was beyond reasonable doubt (SU7-8, 11). Later, his Honour directed the jury (SU19): "You may still, and it is a matter for you, be persuaded beyond reasonable doubt that the only explanation for those two fingerprints being found in the position and applied in the manner in which on the police evidence they were applied in is that they were put there on the morning of the robbery by the accused. But you must be satisfied beyond reasonable doubt because it is absolutely central to the question of whether the accused was the person involved in the robbery. And if the effect of Mr Ali's evidence is to raise that reasonable doubt and to create in your mind a doubt of a reasonable kind then you should, indeed you must, find the accused not guilty." 52 Mr Hamill SC referred to an earlier direction given with respect to the evidence of Mr Ali (SU16-17): "Let me suppose, just for the sake of guiding you, that you do find that Mr Ali never recognised the accused and to the extent that he suggested to the contrary it was part of a somewhat confused presentation in the witness box. The accused's identity was never more, that is, identity with a person he had spoken to on earlier occasions, was never more than a mere possibility. If that is the conclusion you draw then Mr Ali's evidence is not really of very much assistance. It does not take that aspect of the case beyond the realms of speculation. Did he or did he not see the accused before? It is very difficult to tell on that approach to his evidence whether he did or he did not." 53 After the jury retired to consider its verdict, trial defence counsel sought a further direction with respect to Mr Ali's evidence (SU30-32). In the absence of the jury, discussion ensued between the trial judge and counsel concerning possible further directions. His Honour said to trial defence counsel (SU32): "HIS HONOUR: It's difficult because how do they come to a decision it was reasonably possible unless they accept his evidence of recognition. If they reject his evidence of recognition, if they say, we don't accept him when he said he was there before, I remember his face, but all he said was, as he said without exaggeration say at least ten times, it is possible and that's as far as they read his evidence then - I can only repeat what I said, it doesn't say anymore than anyone else could say and I don't think that you can get the mileage out of the possibility, even reasonable possibility. I suppose you can argue it's a reasonable possibility that - it is a reasonable possibility the accused, was there before. He lives in the Sydney area, there might've been any number of reasons he's been at Prince of Wales Hospital, so I suppose it's a reasonable possibility. But what they have to be satisfied is on the balance of probabilities Mr Ali saw him otherwise it is of - now I have no difficulty if this would assist, I have no difficulty because I didn't say this, that when I referred to their accepting his evidence that he'd seen on at least one occasion the accused at that location and spoken to him, that they only have to be satisfied of that on the balance of probabilities that there is no reverse onus of proof on the accused. I have no problem with that. In fact it reminds me that perhaps - well I don't think there'd be any doubt in the jury's mind but it would be an opportunity for me to remind them that the accused doesn't have to prove anything and I'll say that. But that in terms of Mr Ali's evidence if the version is of most assistance to the accused is to be accepted, then they have to be satisfied on the balance of probabilities that that was in fact the case. COUNSEL: I'd be happy with that your Honour. That'd sort it, thank you very much. And that's all, thank you your Honour." 54 Accordingly, trial defence counsel expressed satisfaction with the proposed direction to the trial judge. 55 The Crown Prosecutor submitted that no further direction was required and that such a direction may confuse the issue (SU33): "CROWN PROSECUTOR: Your Honour, in relation to the other matter, I would simply submit that your Honour has already properly and fairly put that matter at great length before the jury and to say anything more at this stage may only confuse the issue. HIS HONOUR: Well I hope I'm capable of not doing that. I accept broadly what you say, but if I put it in the context of reminding them, as I should have, that in general terms the accused bears no onus on the evidence, and that when I referred to this particular example it's a matter that they are required to be satisfied only on the balance of probabilities. I doubt whether that will cause any confusion and it won't, I don't think, unfairly slant the evidence in any direction that it shouldn't, which is why I baulked at what [defence counsel] was pressing me to say beyond that. If I put it in the context that I've said it before but I should have said it again that the accused bears no onus of proof, the fact that he did not give any evidence or call any evidence is not to be used against him, and in the context of specific aspects of the evidence, such as this, to the extent that the jury needs to be satisfied on a matter in the accused's interests, it's only on the balance of probabilities." 56 Accordingly, the trial judge rejected the Crown submission that such a direction ought not be given. Defence counsel did not make any further submission to the trial judge on this issue. 57 As a result of these submissions, his Honour gave the following further direction to the jury (SU45): "I just wanted to remind you of that and relate that to something else I said in this context about Mr Ali's evidence. The evidence of Mr Ali about which there was much debate and about which you were urged to come to different conclusions by counsel, namely whether or not he recognised the accused from earlier occasions. That is a matter, if you are to be satisfied one way or the other, is a matter on which you need to be satisfied only on the balance of probabilities. In other words the burden beyond reasonable doubt which the Crown bears to prove the case against the accused does not apply to an individual piece of evidence such as that where you are simply deciding what to make of what a witness is saying one way or the other and where that conclusion would be, at least potentially, in the accused's interests. If you were satisfied that Mr Ali had seen the accused before at that location you only need to be satisfied of that on the balance of probabilities and no more. So when I talked about being satisfied or convinced by his evidence I just wanted to be sure you did not take that as meaning convinced beyond reasonable doubt." 58 Defence Counsel did not ask the learned trial judge to withdraw this direction or to give the jury any further direction on this matter. Submissions 59 Mr Hamill SC submits that this direction was erroneous because it casts upon the Appellant an onus to establish an alternative hypothesis for the fingerprint on the inside office window on the balance of probabilities. In law, there was no such onus on the Appellant. If the jury on all of the evidence, including the evidence of Mr Ali and the evidence of the particular location of the fingerprint, came to the view that it was possible (or reasonably possible) that the fingerprint on the office window was placed there by the Appellant other than at the time of the robbery, it was submitted that he was entitled to be acquitted. In coming to that view, the jury was bound to take into account the finding of the fingerprint on the outside of the getaway car, but that evidence standing alone was insufficient to establish the case against him. 60 Mr Hamill SC acknowledged that leave was required under Rule 4 to argue this ground. He submitted that leave ought be granted given that there could be no tactical advantage to the Appellant in seeking such a direction at the trial. He submitted that trial counsel simply fell into the same error as the learned trial judge in this respect. It was submitted that the misdirection went to the heart of the trial and wrongly cast an onus of proof upon the Appellant. 61 The Crown submitted that leave ought not be granted to raise this ground of appeal. The further direction was sought by the Appellant's trial counsel who expressed satisfaction with it. Even if the direction given was erroneous, the Crown submitted that the Court would be satisfied that no miscarriage of justice had occurred given the cogency of the fingerprint evidence and the worthlessness of Mr Ali's evidence. Decision 62 In a criminal trial, the onus of proof lies on the prosecution from beginning to end and the standard of proof is beyond reasonable doubt: Woolmington v Director of Public Prosecutions (1935) AC 462 at 481-482. In the absence of a statutory defence casting a legal onus upon an accused person, the onus of proof never shifts to the accused: R v Youssef (1990) 50 A Crim R 1 at 2. Absent such a defence, it is erroneous to direct a jury that a factual finding which may favour the accused need only be established on the balance of probabilities. Such a direction should play no part in a criminal trial. The accused may point to aspects of the evidence in support of a submission that the Crown cannot remove or eliminate the reasonable possibility that the accused is not guilty: R v Youssef at 2-3; R v Kanaan [2005] NSWCCA 385 at paragraph 135. That, however, does not involve a direction that the jury must be satisfied on the balance of probabilities before a fact is found favourable to the accused. 63 In the present case, the trial judge directed the jury, correctly, in his initial instruction concerning the approach to the evidence of Mr Ali. It was only after an application was made by defence counsel that his Honour indicated an intention to introduce the concept of balance of probabilities in a further direction. Defence counsel approved expressly of this direction and asked his Honour to give it. The Crown Prosecutor, correctly, objected to the further direction, but his Honour determined that it ought be given in accordance with the accused's application. 64 To the extent that the learned trial judge has imported the concept of balance of probabilities into the jury's fact-finding process, it is erroneous. However, that does not mean that it necessarily follows that the appeal should succeed and the conviction quashed. 65 There is no case for the grant of leave under Rule 4 unless the Court of Criminal Appeal is satisfied that the Appellant has an arguable case that the trial judge has made an error of law or is satisfied that the Appellant's conviction is otherwise a miscarriage of justice: Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Villa [2005] NSWCCA 4 at paragraph 74. The requirements of Rule 4 do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance of counsel to which he or she is entitled in the increasingly difficult task of giving appropriate directions to the jury: R v Wilson (2005) 62 NSWLR 346 at 353 [24]. If a summing up contains an error which could easily have been cured once the judge's attention had been drawn to it, and if the error has caused no miscarriage of justice, it is not appropriate to permit an appellant to seek a new trial on the basis of that error in the hope that he may do better with a different jury. The right to a fair trial operates in favour of both the accused and the Crown which prosecutes on behalf of the whole community: R v Wilson at 353 [24]. 66 The Appellant placed no reliance in this case upon authorities involving the submission that the conduct of defence counsel at trial was incompetent and that a miscarriage of justice has resulted: TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614. 67 It is appropriate to consider the evidence of Mr Ali, to which the erroneous direction relates, for the purpose of considering whether a miscarriage of justice has occurred in this case. I have carefully read and re-read the evidence of Mr Ali. It is, to say the least, unsatisfactory in a number of respects. 68 The evidence of Mr Ali fluctuated and he demonstrated a tendency to agree, in terms of possibility, with propositions put to him in evidence in chief, cross-examination and re-examination. The flavour of his evidence was that he saw a large number of persons in the course of his duties at the hospital and that it was theoretically possible that he had seen the Appellant before in that context. The tenor of his evidence reflected the concept that this was possible because anything is possible. I do not consider that Mr Ali's evidence possessed any evidentiary worth. His evidence did not point to a reasonable possibility that the Appellant had been, prior to the robbery, in the vicinity of the office window in the car park or that the Appellant's hand may have been applied to the interior window of the inquiry office. 69 In my view, Mr Ali's evidence rose no higher than fanciful supposition or speculation or theoretical possibility that the Appellant may have been in the vicinity of the inquiry office window prior to the robbery. An even greater level of fanciful supposition and speculation would be involved in deriving from Mr Ali's evidence some possible innocent explanation for the Appellant's fingerprint being present on the interior surface of the office window. 70 Viewed in this way, Mr Ali's evidence could rise no higher than a bare possibility or a fanciful supposition or possibility in the sense described by O'Connor J in Peacock v The King (1911) 13 CLR 619 at 661-662; R v Youssef at 3-4. Mr Hamill SC submitted that the distinction between a "possibility" and a "reasonable or real possibility" was of little or no moment. He referred to R v Ayoub [2004] NSWCCA 209 at paragraphs 7, 29-31. I do not accept that R v Ayoub supports the proposition that a bare possibility or mere possibility is sufficient for present purposes. The term "reasonable possibility" has been emphasised in the authorities (R v Youssef; Kanaan v R) and this constitutes the appropriate term to measure Mr Ali's evidence in this case. 71 I am not satisfied that the Appellant has lost an opportunity of acquittal as a result of the erroneous direction given. I am not satisfied that a miscarriage of justice has resulted. Having undertaken an independent assessment of the evidence, I am not satisfied that there was a substantial, or any, miscarriage of justice in the case: Weiss v The Queen (2005) 80 ALJR 444; [2005] HCA 81 at paragraphs 41-47. 72 In the present case, the trial judge had directed the jury correctly until a defence application was made which led to his Honour directing the jury, over Crown objection, in an erroneous fashion. Not only was there an absence of objection by defence counsel at trial to the direction which is now challenged on appeal, but the direction was given to the jury at the request of defence counsel and over Crown objection. Given the nature of the error, I nevertheless took the view that it was appropriate to examine the evidence of Mr Ali to consider whether a miscarriage of justice had occurred. Having undertaken that analysis, I am satisfied clearly that there was no such miscarriage. Although I would grant leave under Rule 4 to permit the Appellant to advance this ground, I reject the ground of appeal. Ground 1 - An Unreasonable Verdict? Submissions 73 Mr Hamill SC submitted that the jury ought to have entertained a reasonable doubt on the evidence in this case. He submits that the question for the jury, as it is for this Court, is whether any rational inference existed which could explain the Crown's circumstantial case based upon the Appellant's fingerprints at the scene of the crime and on the getaway car. He submits that the circumstantial case lacked probative force and that a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence: Knight v The Queen (1992) 175 CLR 495 at 502-503. He submitted that the Crown had failed to lead any evidence of the participation of the Appellant in the robbery and that the presence of the Appellant's fingerprints at the scene of the crime and on the getaway car constituted a basis for speculation or surmise only and not a conclusion, beyond reasonable doubt, that the only rational hypothesis was that the Appellant was guilty of the crime: R v Zouras [2002] VSCA 182. 74 Mr Hamill SC submits that an inference that a man other than the Appellant was the shorter of the two robbers could not reasonably be excluded and that there is a significant possibility that an innocent man has been convicted of this crime. He submits that the following matters of evidence ought to have led the jury to have a reasonable doubt about the Appellant's guilt: (a) Mr Nicholson's evidence that photograph 9, a contemporaneous photograph of the Appellant, was "definitely not similar" to the robber; (b) Mr Nicholson's evidence that the person depicted in photograph 12 was the robber or closely resembled the robber; (c) the failure or inability of the prosecution to exclude the person depicted in photograph 12 as the robber; (d) Mr Ali's evidence to the effect that, while working as a parking attendant, he may have seen the Appellant at the hospital in the area where his fingerprint was found; (e) the fact that the fingerprint was on the exterior of the motor vehicle and that the Appellant's fingerprints were not found inside the vehicle. 75 Whatever suspicions were raised by the fingerprint evidence, Mr Hamill SC submitted that each fingerprint was capable of an explanation other than the Appellant's involvement in the robbery. Reference was made to the evidence of Senior Constable Fishburn (T131-132, 141) that it was possible that the fingerprint on the motor vehicle could have been left by someone walking past and touching the car. Reliance was placed upon Mr Ali's evidence in support of a possible explanation for the fingerprint at the crime scene. 76 Mr Hamill SC emphasised that the two fingerprints were the only items of evidence capable of establishing the Appellant's involvement in the crime. In light of the other possible explanations for the presence of the fingerprints, the evidence of Mr Nicholson (which was completely at odds with the prosecution theory of the case) and the failure by the Crown to exclude the person in photograph 12, he submitted that the Court would come to the view that the verdict of guilty cannot be supported. 77 Mr Hamill SC submitted that Mr Nicholson's positive identification of another man as the offender required the prosecution to exclude that other man beyond reasonable doubt. The prosecution called no evidence capable of excluding him. Mr Jebara was not called to give evidence. The only evidence before the jury was that his photograph was in the array, that he was not in custody at the time of the offence and that the police did not know his whereabouts at the time of the offence. 78 Mr Hamill SC submitted that the verdict of the jury was unreasonable and ought be set aside. 79 The Crown submitted that the present case demonstrated that a circumstantial evidence case may be more reliable than a case based on direct evidence: R v Cable (1947) 47 SR 183 at 184. It was submitted that it was open to the jury to draw the inference beyond reasonable doubt of the Appellant's guilt from the presence of his fingerprints at both the crime scene and on the getaway car which had been found, within an hour of the robbery, approximately 1.5 kilometres away and still containing the stolen safe and video tape. 80 The Crown emphasised the cogency of fingerprint evidence: R v Ingivald (NSW Court of Criminal Appeal, 11 April 1989, unreported, pages 10-11). 81 It was submitted that there was an ample basis for the jury to reject the identification evidence of Mr Nicholson as being unreliable. The Crown pointed to a number of features of Mr Nicholson's evidence which indicated its unreliability. These included: (a) in his description of the first man to approach him, Mr Nicholson said that he did not have a beard or moustache, yet he identified as the offender the man in photograph 12 who appears to have a moustache and a light beard; (b) when asked if he could identify any distinguishing features upon which he based his identification of the man in photograph 12, Mr Nicholson said "No not really, it was just the general appearance" (T20); (c) Mr Nicholson identified two other men in photographs 1 and 8 as being similar to the man involved in the robbery on the basis of the "general shape of the face, the fullness of the face, the nose" (T20) and he used almost identical words to describe the man in photograph 12 "the roundness of the face, the fullness of the face, the eyes the nose" ; (d) Mr Nicholson was seriously assaulted by both offenders and had to attend hospital; he was not well for some time afterwards and said in his evidence he was in shock immediately after the robbery; (e) Mr Nicholson did not attend the police station for the purpose of the identification procedure until about a month after the robbery; (f) the first description given to police by Mr Nicholson fitted the Appellant and even the description given by Mr Nicholson at trial was consistent with the Appellant's appearance in a number of respects; (g) the 12 photographs in Exhibit D display males of very similar appearance and only show facial features, not build nor height; (h) in re-examination, Mr Nicholson said that he had some doubts about his identification of the man in photograph 12; (i) the evidence from the officer-in-charge was that there were no fingerprints of the man in photograph 12 located at either the scene or in the car. 82 The Crown submitted that the jury had the opportunity to observe Mr Nicholson give evidence and, with that advantage, were clearly satisfied beyond reasonable doubt that he was mistaken in his photograph identification. 83 The Crown submitted that the evidence of Mr Ali could not have assisted the jury in their deliberations one way or the other. The uncertainties and variations in the evidence of Mr Ali were emphasised. Further, it was submitted that Mr Ali's evidence, at its highest, did not support a reasonable possibility that the Appellant had stood in the position at the office window where his fingerprint was found after the robbery. Reference was made to a demonstration by the Appellant's solicitor depicted in photographs tendered by the defence at trial. The photographs of the solicitor were said to support a defence argument that the Appellant, who was four inches shorter than his solicitor, may have leaned in the same way on the window innocently and thereby left his fingerprint in the position where it was located. The Crown submitted that the posture of the solicitor in the photographs was unnatural and contorted. Far from helping the Appellant, the Crown submitted that it was open to the jury to use this photographic evidence to support the conclusion that the Appellant's fingerprint was there as a result of him supporting himself as he climbed through the office window in the course of the robbery. 84 Although the Appellant bore no onus, there was no evidence from the Appellant before the jury suggesting any innocent explanation for his fingerprints being present on both the inside of the office window and the outside of the getaway car. 85 As the evidence did not suggest a reasonably possible innocent explanation for the Appellant's fingerprint on the office window, it was open to the jury to draw the only reasonable inference available, being that the Appellant's fingerprints at the scene of the crime and on the getaway car were placed there whilst he committed the crime. 86 The Crown submitted that, taking the evidence as a whole, it was open to the jury acting reasonably to reject the reasonable possibility that someone else (Mr Jebara) was the offender described by Mr Nicholson. It was submitted that the jury had the opportunity to view the accused in Court during the trial together with the photographs which had been shown to Mr Nicholson, including the photographs of the accused and Mr Jebara. The jury were in a position to assess Mr Nicholson's evidence in the context of their own observations, an advantage which this Court does not have. 87 The Crown submitted that there was sufficient evidence to satisfy a jury, acting reasonably, of the Appellant's guilt and that this ground of appeal should be dismissed: R v Chahine [2006] NSWCCA 99 at paragraphs 23-24. Decision 88 In approaching this ground of appeal, it is appropriate to bear in mind the advantages which a jury have over this Court in considering a case based on circumstantial evidence. In R v Kaldor (2004) 150 A Crim R 271, Dunford J at 272-3 [2] and Howie J at 293-4 [86] observed that a jury brings to consideration of a circumstantial case the common experience of members of the community comprising men and women from different backgrounds, of different ages and with different experiences in life, who apply to the case their collective knowledge of human affairs and their common sense. These observations are apt to the present case. 89 The Crown case was based upon the coincidence of two of the Appellant's fingerprints being at two different and remote places which were connected with the crime. The first fingerprint was on the office window which was the point of entry of the robbers at the scene of the crime. The second fingerprint was on the outside of the getaway car which was used by the robbers, and apparently abandoned, and was then located less than an hour after the robbery. The jury was entitled, indeed obliged, to have regard to their own experience of human affairs and common sense in considering what flowed from this coincidence. This was not a case based upon the fingerprints of the Appellant being present at a single location, as in R v Zouras. 90 The evidence of Mr Nicholson, on close examination, did not especially assist the Appellant. The photographs which were shown to Mr Nicholson (Exhibit D) have been provided to the Court for the purpose of this appeal. It must be observed that there is more than a passing similarity between the photograph of the Appellant (photograph 9) and the photograph of Mr Jebara (photograph 12). This feature was emphasised in the Crown address to the jury and, in my view, for understandable reasons. The factors pointed to by the Crown provide a substantial basis for the jury rejecting Mr Nicholson's evidence identifying Mr Jebara and excluding the Appellant. The fragile nature of identification evidence has been recognised and these principles have application even with respect to negative identification: R v Rose (2002) 55 NSWLR 701; Kanaan v R [2006] NSWCCA 109 at paragraphs 107ff. 91 It was clearly open to the jury to form the view that Mr Nicholson, although confident in his identification of Mr Jebara in photograph 12 and in his exclusion of the Appellant in photograph 9, was mistaken. 92 As previously stated in this judgment, the evidence of Mr Ali was unclear and confusing. At its highest, it raised a fanciful or theoretical possibility that the Appellant may have been in the vicinity of the office window at some time. It did not point to a reasonably possible innocent explanation for the Appellant's fingerprint inside the office window. As previously indicated, Mr Ali's evidence was incapable of pointing to a reasonable possibility which could assist the Appellant. His evidence carried no weight at all. 93 I accept the Crown submission that the pose of the Appellant's solicitor depicted in the photographs (Exhibit 1) was unnatural and contorted and did not support the Appellant's case. It provided support for the Crown case. 94 The evidence of Senior Constable Fishburn relied upon by the Appellant was that it was possible that a person's fingerprint could be applied to the exterior of a motor vehicle by way of incidental touching. This evidence did not assist the Appellant. It rose no higher than theoretical possibility. There was no evidence before the jury to suggest a context in which the Appellant may have touched the getaway car innocently and incidentally. 95 In R v Cable, Jordan CJ observed at 184 that, in many cases, circumstantial evidence is stronger than direct evidence, which is subject to the fallibility of human observation and recollection. This statement has direct application in the present case. There was no issue that the Appellant's fingerprints were present in two critical locations. The direct evidence of Mr Nicholson and Mr Ali was highly fallible. 96 The Appellant's fingerprints were located at the scene of the crime and on the getaway car. As Gleeson CJ observed in R v Ingivald (at page 10), fingerprint evidence is powerful and cogent evidence of identification. The combination of the location of the Appellant's fingerprints at two distant places located with the crime was powerful circumstantial evidence. It provided a direct link between the Appellant and the crime. There was no reasonable innocent hypothesis arising from the evidence at the trial which could explain the Appellant's fingerprints at these two locations. Properly understood, the evidence of Mr Nicholson assisted the Crown more than the Appellant. His initial description of the first man to the police was broadly similar to that of the Appellant. The photograph selected by him as being the first man was similar to the photograph of the Appellant. Although Mr Nicholson expressed the opinion that the photograph of the Appellant was not that of the offender, it was clearly open to the jury, on all the evidence, to reject that evidence. The man in photograph 12 and the Appellant are very similar in appearance. It is open to this Court to take the same approach. 97 There was a clear prima facie case and, on all the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of this crime: M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen [2002] 213 CLR 487; R v Chahine at paragraphs 23-25. 98 The appeal against conviction ought be dismissed. ********** 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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