ALAMEDDINE v REGINA [2007] NSWCCA 358

New South Wales Court of Criminal Appeal

CITATION: ALAMEDDINE v REGINA [2007] NSWCCA 358

HEARING DATE(S): 3 December 2007

JUDGMENT DATE: 20 December 2007

JUDGMENT OF: Mason P at 1; Barr J at 53; Bell J at 54

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Appeal – particular grounds – unreasonable or insupportable verdict – where appeal dismissed – whether jury should have had a reasonable doubt – whether appellant participated in offence – where argued that evidence on the timing of the offence could not accommodate appellant's participation

CASES CITED: Libke v The Queen [2007] HCA 30; (2007) 235 ALR 517

PARTIES: Said ALAMEDDINE v REGINA

FILE NUMBER(S): CCA 2006/5271

COUNSEL: Appellant: A Lucas Respondent: M Hobart SC

SOLICITORS: Appellant: M Cavanagh Respondent: S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/11/0564

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 8 December 2006

IN THE COURT OF CRIMINAL APPEAL CCA 2006/5271

MASON P BARR J BELL J

Thursday 20 December 2007 Said ALAMEDDINE v REGINA Judgment

1 MASON P: Following a trial before Judge Berman SC and a jury the appellant was convicted on a charge of aggravated stealing of a set of keys. The circumstance of aggravation was the infliction of violence immediately after the theft. 2 The victim was returning to his residence on the northern side of Orwell Street, Potts Point. Orwell Street runs from Victoria Street in the west to McLeay Street in the east. On its southern side, a little to the east of the victim's residence, is the entrance to Springfield Gardens Mall. 3 It was about 2am on 11 December 2005. The victim was moderately affected by alcohol. He passed a group of about four men standing together near the intersection of Orwell Street and the Mall. Hearing their footsteps behind him he sped up, attempting to reach home as fast as possible. He removed his keys from his pocket as he approached the entrance. A male voice demanded: "Give me your keys". The victim responded "Go fuck yourself". As he did, his keys were snatched from his hand and he was set upon with punches to the face and head. 4 The victim believed that two men in the group commenced to punch him and that they were joined by a third male in the assaults. The victim was pushed back against the wall outside his residence. He heard a male voice shout: "Stop, police" whereupon his attackers ran off in the direction of McLeay Street. The victim described the original assailants as "Arabs" and "definitely the same guys" he had seen earlier. He was unable to describe them further. The third man was described as being in his early to mid-20s, about 5'11" in height, with a shaved head and a few days stubble on his face, wearing a navy blue Adidas tracksuit top. (It is not suggested that this was the appellant.) 5 One of the assailants was Bassam Charrouf. He was originally indicted jointly with the appellant and another man, Ali Fajajo. During the trial he was discharged because the interests of justice required him to be tried separately. At the conclusion of the trial the appellant and Fajajo were found guilty of identical charges. 6 The identity of Charrouf and Fajajo as two of the assailants was not put in issue by the appellant at his trial or in this appeal. 7 Two police officers were sitting in an unmarked vehicle on the southern side of Orwell Street facing east towards McLeay Street. Their car was about 37 metres from the crime scene (Tr p216). When they saw the crime commence they ran towards the group yelling: "Police, stop". 8 Constable Brooks observed two men approach the victim, talk to him and then pin him against the wall directly outside the doorway. Brooks saw two further men join the group and assist in pinning the victim before punches were thrown by the whole group. Constable Rush did not see the start of the incident, but observed the four men attacking the victim as he ran towards the incident. 9 All four men had hoods pulled over their heads. 10 Constable Brooks identified the first two assailants as Charrouf and Fajajo and one of the second group as the appellant. The fourth man was described as wearing a blue and white jumper. 11 The identification evidence concerning the appellant given by Constable Brooks and Constable Rush was cogent and specific. 12 The appellant's counsel informed the judge that it would not be suggested that the officers were unable to recognise the appellant. His case was that they were mistaken in stating that he joined in the assault (Tr p178). The case was fought before the jury on this basis. 13 Constable Brooks had previously seen the appellant at least a dozen times, spoken to him, and was very familiar with his physical appearance (Tr p183). He also identified him by reference to his clothing, an identification corroborated in this regard by the CCTV evidence referred to below. The officer had no doubt that the appellant ran over and joined the group attacking the victim (Tr pp183, 185, 193). 14 Constable Brooks said that he got to about 10 metres of the appellant before he recognised him. He later revised this estimate to 15 metres (Tr p216). The appellant had his hood up and the officer only recognised him when the appellant turned and looked at him before running off towards the entrance to the Mall (Tr pp151, 190-1, 194). 15 Constable Rush also identified the appellant as one of the men punching the victim in the face. He had previously seen the appellant between 15 and 20 times and was very familiar with his appearance (Tr p209). The officer was first able to recognise the appellant as one of the assailants after he got out of the car, ran towards the group and got to under 20 metres away from the crime scene (Tr p232). 16 According to the officers, as they ran towards the group yelling: "Stop, police", Charrouf looked in their direction and then ran across to the south side of Orwell Street and into Springfield Gardens. The other three continued punching and wrestling the victim, apparently unaware of the police for a time. Then they stopped and looked in the direction of the police before themselves running into the Gardens (Tr pp63, 69-70). 17 Fajajo was the last to leave, but because he was the slowest he alone was caught and arrested that night (Tr pp70, 153). 18 Charrouf and the appellant were arrested the following day. 19 It was established that the three identified men had been together at the Crest Hotel, Kings Cross about half an hour before the attack. They left in a group with some others, proceeding to Orwell Street via Springfield Gardens. They pulled up their hoods, despite it being a summer evening. 20 The appellant admitted formally that he was in Orwell Street, wearing a grey hooded "Champion" jacket, and that he was the man shown in security camera footage identified as UM1 (see below). 21 He also gave evidence that he was present in Orwell Street at the time the offence was committed, but he denied prior knowledge of the offence or participation in it. He saw an incident involving two unknown men with hoods throwing punches. Two other men approached the group with guns. The appellant said that he kept walking in a westerly direction towards Victoria Street. 22 The jury were entitled to be very sceptical about the appellant's asserted inability to have recognised Charrouf as one of the assailants. 23 In cross-examination, the appellant said that he had been at the Crest Hotel with Charrouf, Fajajo and another man. But he maintained that he was not in their company when walking along Orwell Street. Before the group got to Orwell Street they were "in front of me and it was pretty dark in Springfield Mall and then I lost them" (Tr p277). He turned left into Orwell Street, saw a fight happening, spoke to a person who asked him for change, and saw the two "civilians" run up, one holding a gun. 24 The appellant makes no complaint about the directions given to the jury, including the directions concerning the risks of wrongful identification. 25 The sole ground of appeal is that the conviction was unreasonable and cannot be supported having regard to the evidence. It is contended that the jury ought to have had a reasonable doubt as to the appellant's participation in the bashing that accompanied the theft of the victim's house key. 26 CCTV footage is said to destroy or seriously undermine the police testimony implicating the appellant in the assault that the jury were otherwise entitled to accept. The CCTV evidence consists of a series of still photographs a little under a second apart, each bearing a computer-recorded time signature. 27 The offender Charrouf, who was the first to run away from the police, ran east along Orwell Street then turned south into the open space known as Springfield Gardens. His entry into the open space is captured on CCTV footage from a security camera pointing north (UM 2) showing him entering the Gardens from Orwell Street (Ex 12). 28 Charrouf is first shown clearly in the photographic still 01:57:45.984. He was then less than 23 metres from the crime scene because 23.4 metres was the distance measured from the crime scene to a column in the Gardens that is a little to the south of where Charrouf is first depicted in the UM 2 stills. 29 There is an earlier still taken from UM 2 (01:57:44.967) that appears to show a darkly dressed runner (not Charrouf) entering the Gardens from Orwell Street. He overtakes Charrouf in later pictures. 30 A different camera (UM 1) was fixed to the northwest corner of the Springfield Gardens apartments looking east along Orwell Street on the southern side. Exhibit 13 was a series of eight stills printed from what was captured by that camera. The time signature depicted in those stills was generated by the same computer that recorded the pictures taken by camera UM 2. In other words there was synchronicity. 31 Camera UM 1 captured photographs of the appellant walking in a westerly direction along the southern side of Orwell Street. This was as he moved towards the police car, walking on the opposite side of Orwell Street to the crime scene. The appellant is first shown at 01:57:33.886 moving towards the camera. He is last shown (head only) at 01:57:41.237, still proceeding in a westerly direction on the southern footpath of Orwell Street, close to the curb. He was then about 16 metres from the crime scene (Tr p308). 32 The period between the last still of the appellant taken by camera UM 1 and the first still of the fleeing Charrouf taken by camera UM 2 is a gap of 4.75 seconds. It shall be referred to as the window period. 33 The period between the last still of the appellant taken by camera UM 1 and the first still in Ex 12, apparently showing a darkly dressed runner entering the Gardens, is 3.73 seconds. 34 The appellant's case, in short, is that 4.75 seconds ought to have been regarded by the jury as an insufficient time for the appellant to have moved from the southern footpath of Orwell Street across to the crime scene, for the assault to have taken place, and for Charrouf to have run to where he was filmed entering Springfield Gardens. Accordingly, the jury ought not to have accepted beyond reasonable doubt the police evidence implicating the appellant in the bashing. This point was squarely raised at trial (see Tr p146). 35 On the basis of the police account, the appellant first took an active role in the assault when he set off running across Orwell Street towards the crime scene that was 16 metres away from where he was last depicted walking westwards in the UM 1 stills. 36 However, the first phase of the crime was almost certainly already in progress when the appellant moved off from the southern side of Orwell Street to assist his companions Charrouf and Fajajo. The evidence of Constable Brooks was that the appellant was not one of the original assailants. 37 The police officers saw the first phase of the crime and they reacted promptly, running towards the incident. It is therefore quite conceivable that they moved from their car at about the same time that the appellant moved from the southern side of the street. The officers recognised the appellant as one of the four hooded assailants when they got to within an estimated 10 metres (Brooks) or 20 metres (Rush) from him. 38 On the police evidence, Charrouf heard and reacted to the police presence first and he was the first to run away into Springfield Gardens. The other three men kept punching the victim before they reacted to the police and then in turn ran into the Gardens. Whether all four assailants were ever punching the victim simultaneously is far from clear on the totality of the evidence. 39 Evidence from Constable Rush referring to "the group" (eg Tr pp210, 232) is consistent with some (eg the appellant) joining the fray at the very time that Charrouf left. Both officers were clear that Charrouf ran off first (Tr pp138, 235). 40 It follows that, on the police evidence, the appellant would still have been participating in the assault for at least some of the time it took Charrouf to travel less than 23 metres from the crime scene to where he was first shown fleeing into the Gardens. This is the central fallacy in the appellant's attempt to treat the 4.75 "window period" as probative of anything relevant. 41 In so concluding, I have accepted for the purpose of argument the appellant's estimates that Charrouf ran at about roughly 6 to 7 metres per second. (Amended Submissions paras 7.3-7.4.) 42 In my opinion, the arguments based upon the timing of the footage from cameras UM 1 and UM 2 did not mean that the jury ought to have had a reasonable doubt about accepting the Crown case based essentially upon the evidence of the two police officers. The concept of a window period of 4.75 seconds is artificial and misconceived. Charrouf's participation in the assault could have commenced before the window period started and the appellant's participation in the assualt could have been continuing until close to when it ended. 43 The appellant also sought to develop the timing argument in alternative ways. 44 There were calculations of the time it would have taken the police officers to react to their earliest observation of the crime and to move from their car to where they first identified the appellant as one of the assailants. This exercise involves the fallacy of concluding that the police only moved off after all four men were punching the victim. Paragraph 7.8 of the appellant's submission accepted that the officers only commenced their run up Orwell Street after the appellant had crossed over to the crime scene. It is conceivable that the officers and the appellant reacted almost simultaneously to the commencement of the assault. 45 I have not overlooked other submissions based upon estimates by the officers as to the "split second" or the (small) number of seconds it took them to do things or during which they observed a particular activity. Given the intense activities observed and the officers' attempts to stop the crime and catch the attackers I place very little weight on such time estimates made in the agony of the moment. 46 Other arguments raised in the written submissions are entirely speculative and/or unconvincing. These include hypotheses based upon camera footage suggestive of other persons fleeing the crime scene. 47 There was one remaining submission. As presented, the prosecution case against the appellant required the jury to be satisfied beyond reasonable doubt that the appellant knew a robbery was occurring at the time he ran across Orwell Street to join the other offenders assaulting the victim. 48 The appellant was not immediately present when the victim was first approached and his keys demanded. The prosecution case as to knowledge was circumstantial, basing itself upon the appellant's association with the other offenders earlier in the evening at the Crest Hotel; the appellant having accompanied Charrouf and the others through Springfield Gardens and into Orwell Street; the appellant's presence on the opposite side of Orwell Street when the offence began; the appellant's attire (wearing a hood); and the appellant's willingness to become involved in offering violence to the victim. 49 The appellant submits that this circumstantial evidence was insufficient to exclude the possibility that his knowledge was limited to the fact of an assault in company. I do not agree. In my view, the jury were entitled to reason that the appellants saw and/or knew the purpose of his companions pinning the victim to the wall. It was not necessary that he knew the particular item of personal property taken. 50 As Hayne J said in Libke v The Queen [2007] HCA 30; (2007) 235 ALR 517 at [113] "the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard." 51 In my opinion, it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty. 52 I would therefore dismiss the appeal. 53 BARR J: I agree with Mason P. 54 BELL J: I agree with Mason P.