R v SYED, ISLAM, MAHMOOD [2008] NSWCCA 37

New South Wales Court of Criminal Appeal

CITATION: R v SYED, ISLAM, MAHMOOD [2008] NSWCCA 37

HEARING DATE(S): 26 September 2007

JUDGMENT DATE: 4 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Harrison J at 96

DECISION: Dismiss each of the appeals against conviction. Dismiss each Crown appeal.

Regina PARTIES: Samiul SYED Naimul ISLAM Hassan MAHMOOD

FILE NUMBER(S): CCA 2007/3244; 2007/3055; 2007/3245; 2007/3026; 2007/5193; 2007/3246

Crown: Ms Woodburne COUNSEL: Syed: Mr Byrne SC; Mr Brasch Islam: Mr Thangaraj Mahmood: Mr Smith

Crown: S Kavanagh (DPP) SOLICITORS: Syed: Carters Solicitors Islam: Nyman Gibson Stewart Mahmood: George Sten & Co

LOWER COURT JURISDICTION: District Court

06/11/0099 LOWER COURT FILE NUMBER(S): 06/11/0234 06/11/0245

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

- 23 - IN THE COURT OF CRIMINAL APPEAL 2007/3244; 2007/3055 2007/3245; 2007/3026 2007/5193; 2007/3246

McCLELLAN CJ AT CL HULME J HARRISON J Tuesday, 4 March 2008 Naimul ISLAM v REGINA Hassan MAHMOOD v REGINA Samiul SYED v REGINA Judgment 1 MCCLELLAN CJ AT CL: I agree with Hulme J. 2 HULME J: On 18 October 2006 each of the Appellants was found guilty by a jury. In the case of Mahmood and Samiul Syed the offence for which they had stood trial was that on 17 August 2005 "they then being in company with each other, SS and HR did rob Ngai Liu of property namely a Nokia 8310 mobile phone." The charge against Naimul Islam was that "before the offence was committed as alleged in count 1 by the persons mentioned, he did move, procure, aid and counsel those persons to commit the offence in count 1". SS and HR were juveniles at the time of the suggested offences and, given the prohibition on the publication of their names imposed by s11 of the Children (Criminal Proceedings) Act, they will be referred to by those initials. 3 On 24 May 2007 Judge Phegan sentenced the offenders as follows:- 1. In the case of Samiul Syed, imprisonment for a non-parole period of 1 year and 3 months commencing on 24 May 2007 together with a further period of imprisonment for 7 months, the sentence being suspended for its term on condition that the offender be of good behaviour and appear for sentence if called upon. 2. In the case of Mahmood, imprisonment for a non-parole period of 1 year and 3 months commencing on 24 May 2007 together with a further period of imprisonment for 5 months, the sentence being suspended for its term on condition that the offender be of good behaviour and appear for sentence if called upon. 3. In the case of Islam, imprisonment for a non-parole period of 10 months commencing on 24 May 2007 together with a further period of imprisonment for 5 months, the sentence being suspended for its term on condition that the offender be of good behaviour and appear for sentence if called upon. 4 (For completeness I should add that there were also other conditions of the bonds but to these it is unnecessary to refer.) 5 All three persons have appealed against their convictions and the Crown has appealed against the sentences imposed. 6 Islam's sole ground of appeal was:- "1. His Honour erred in failing to exercise his discretion under s138 of the Evidence Act 1995 to not admit into evidence the electronically recorded interview of (SS) tendered (exhibit U) by the Crown…" 7 Mahmood's grounds of appeal were:- (i) That the trial Judge erred in admitting into evidence the interview between (SS) and the Police; (ii) That the trial Judge erred in failing to adequately direct the jury concerning the unreliability of the evidence of (SS) pursuant to s165 Evidence Act 1995; (iii) The trial Judge erred in refusing to permit (Mahmood) to adduce evidence of a prior consistent statement after it had been suggested to (him) in cross-examination that he had fabricated part of his evidence. 8 Syed's grounds of appeal were:- (i) The learned trial judge erred in admitting into evidence the contents of an electronically recorded interview between (SS) and investigating police. (ii) The directions given by the learned trial judge as to the potential unreliability of the evidence in the recorded interview referred to in (the immediately preceding) ground… were inadequate. 9 The appeal was heard on 26 September 2007. During the hearing of the appeal, counsel for Islam said that he wished to rely on Mahmood's second ground of appeal. On 4 October 2007 Islam sought to supplement his ground of appeal by, firstly, relying also on Section 137 of the Evidence Act and adding a further ground:- "The verdict of the jury was unreasonable and cannot be supported having regard to the evidence." 10 The documents setting out these matters said that Islam relied on the written and oral submissions already made and contained the submission that "further written submission handed to the Court on the last occasion by the Crown, along with the ERISP, demonstrated that the evidence against (Islam) was insufficient". 11 In a letter also of 4 October to the Registrar of the Court the Crown indicated that it did not object to Islam relying on the second of Syed's grounds but objected to the filing of the additional ground and opposed leave – more accurately an extension of time - required by Rule 25A of the Criminal Appeal Rules, being granted by the Court. The letter went on to say that if leave were granted the Crown would make a submission in response. Without making any decision on the leave issue the Court wrote to the Crown inviting such a submission and one was received. 12 Evidence given in the Appellant's trial included the following. At about 8.20pm on 17 August 2005, Ngai Liu was on the footpath of Willis Street, Kensington, a little to the north of the north-western corner of the intersection of Willis Street and Middle Street. He was walking south towards the intersection. He was approached by a man who asked "What's the time, buddy?". While Mr Liu was occupied in taking out his mobile phone to answer this question the man wrapped his right arm against Mr Liu's neck, displayed an opened fold-out knife some 10cm from Mr Liu's face and said words to the effect, "Give me everything you've got. I've got a knife and give me your wallet." The man was black and was wearing "a white or light coloured athletic top and similarly athletic pants which covered his build." 13 According to Mr Liu he initially froze but then struggled loose with the result he was facing the man, about one metre away. Mr Liu then observed three other men on or just off the diagonally opposite corner of the intersection walking briskly in his direction. These men wore similar clothes to the person who had approached Mr Liu, i.e. an athletic top and pants but Mr Liu could not recall the colour of these. They arrived on or immediately adjacent to the north-western corner, some 5 metres from Mr Liu at which stage another person, later identified as Tony Ward called out from his fence-line some 10 metres further to the north of Mr Liu, "What's happening here?" 14 Mr Liu perceived an opportunity to escape. He crouched down, placed his mobile phone on the ground, called out "Help" and ran to Mr Ward and into Mr Ward's premises. 15 Shortly after Mr Liu had freed himself from the original offender's embrace he heard someone, probably that man, repeat a number of times "Give me your wallet. Give me everything you've got." Mr Liu described this person as black and his clothing as white or light coloured athletic top and athletic pants. 16 There was no challenge during the cross examination of Mr Liu to the substance of these matters. 17 Mr Ward gave evidence of his observation of events from, in his estimate, some 20 metres away. Although he did not give evidence of all of the matters of detail to which Mr Liu had referred, Mr Ward provided corroboration of the incident. The only significant inconsistency between his evidence and that of Mr Liu was that Mr Ward on seeing the group had the impression – his evidence suggests reasonably firmly – that the group of persons was in a huddle, 3 or 4 surrounding Mr Liu, that when he called the group opened and Mr Liu then came out of the centre of the huddle. 18 Immediately on Mr Liu's arrival at Mr Ward's premises, a phone call was made to 000 and police arrived shortly thereafter. At the time of their arrival Islam was seen to be sitting in the driver's seat of a Nissan Pulsar motor vehicle parked some 40 metres away from the intersection. As a police car passed, he was observed to sink down in to the seat. HR and Mahmood were observed by police walking along the southern footpath of Middle Street before turning into another street, Forsyth Street some 2 blocks from where the attack on Mr Liu had occurred. HR was observed to be wearing a thick white jacket and track-suit pants. Mahmood was wearing a white jacket, blue jeans and a dark baseball cap. HR was observed by a Sergeant Callaghan to move toward a small brick front fence. Sergeant Callaghan approached the two and on request they emptied their pockets. Shortly thereafter a folded flick knife was found over the fence. The knife was the subject of testing for DNA. HR was found to have the same DNA profile as the major component of that found on the knife, a profile that is expected to occur in fewer than 1 in 10 billion individuals. 19 Sometime later while Constables Howard and Gibson were conducting surveillance of the Nissan Pulsar two males were seen to approach it, look in and walk on. Five minutes later the same two persons approached it again, looked in it several times and again walked past. These persons were the Appellant Syed and SS. The police officers approached these two. Samiul Syed was in possession of a Nokia mobile phone, identified by Mr Liu in evidence which was unchallenged as his. There was other evidence to similar effect. 20 In addition to the foregoing, the Crown relied extensively on evidence given by or tendered through SS who was called by the Crown. This witness acknowledged being arrested on the evening of 17 August at Kingsford saying he had arrived there in a car of his brother-in-law Islam, others in the car being HR, Mahmood and Syed. When questioned further about some aspects of the occasion SS purported to have an extensive lack of recollection of the events of the night. The Crown was then given leave under s38 of the Evidence Act to cross-examine SS. During this cross-examination the record of an ERISP conducted between police and SS and which commenced at about 7.00am on the morning of 18 August and referred to in the first ground of appeal was admitted into evidence. 21 In the course of the interview, SS said that he, HR and the Appellants were in a car, initially with the intention of visiting one of SS's mates at Mascot. Instead of going to Mascot, the group drove to Kingsford, driving around. Someone brought up the idea of rolling (a victim). At some stage everyone other than the driver jumped out of the car, walked up to some person who started screaming and ran off when "we tried to grab him". No property was obtained from this person. The group continued walking and saw another person who from SS's description of events was clearly Mr Liu. Although not expressed as clearly as it might be, the tenor of his remarks in the interview was that all of the group tried to grab this second victim although no-one actually succeeded. That victim dropped his phone and one of the group, probably Syed, picked it up and all walked off. 22 Otherwise, and except insofar as lies one or other of them told while being interviewed by police might be regarded as incriminating, the evidence implicating the Appellants in the offence committed against Mr Lieu was very limited.