Local Court New South Wales Medium Neutral Citation: R v Ibrahim Ali Ayache [2011] NSWLC 2 Hearing dates: 7 February 2011 Decision date: 15 February 2011 Jurisdiction: Criminal Before: Magistrate Tsavdaridis Decision: 1. Prosecution evidence, adduced by way of paper committal, is, pursuant to s.62 of the Criminal Procedure Act 1986 (NSW), capable of satisfying a jury, properly instructed, beyond reasonable doubt that the Accused has committed an indictable offence. 2. Having regard to evidence adduced, by way of paper committal, there is, pursuant to s.64 of the Criminal Procedure Act 1986 (NSW), a reasonable prospect that a reasonable jury, properly instructed, would convict the Accused of an indictable offence. 3. Accused committed for trial to, and is directed to attend the arraignment at, the District Court of NSW at Sydney at 9.30 a.m. on Friday 25 February 2011. Catchwords: Paper committal - Admissions made by Accused - Circumstantial evidence - Admissions to be tape recorded - Section 281 Criminal Procedure Act 1986 (NSW) Legislation Cited: Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Bail Act 1978 (NSW) Local Court Rules 2009 (NSW) Cases Cited: Plomp v R (1963) 110 CLR 234 Chamberlain v R (No 2) (1984) 153 CLR 521 Shepard v R (1990) 170 CLR 573 Grasby v R (1989) 168 CLR 1 Hannah v Kearney and DPP (Supreme Court of NSW, per Studdert J, 28 May 1998, unreported) Moss v Brown (1979) 1 NSWLR 114 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) Ibrahim Ali Ayache (Accused) Representation: Mr T C Spohr Office of Director of Public Prosecutions (Crown) Mr G Thomas of Counsel (Accused) File Number(s): H39895228 2009/00328924 Judgment 1This case was set down for a paper committal, with submissions, on 7 February 2011. 2The Accused is charged with robbery armed with an offensive weapon contrary to s.97(1) of the Crimes Act 1900 (NSW). 3As is customary in this Court, the Crown's brief of evidence was tendered and marked Exhibit 1. Written submissions prepared by the Crown were also tendered and marked Exhibit 2. There was no objection to the tender of these documents. Extensive oral submissions were made by Defence Counsel to which the Crown also responded in oral form. Accordingly, I will now proceed to deal with the proceedings on the basis of what is contained in the Crown's brief of evidence and written submissions and the oral submissions, made by the parties. 4Factually, it is alleged that at approximately 8.34 p.m. on 28 December 2009, the Accused, together with another male, attended the Lucky Seven Convenience Store situated at 9/35A Arncliffe Street, Wolli Creek. It is alleged that the Accused was of solid build, wore a white cap with a "Nike" emblem, a red bandanna tied around his nose and mouth, and a light blue jumper with the word "FILA" written across the chest, white tracksuit pants and white sneakers. It is further alleged that the Accused was holding a knife in his left hand and was accompanied by another male wearing a black hooded jumper with a thick white stripe down each sleeve and the word "Puma" and an emblem written across the chest, dark pants and white sneakers. This person, it is alleged, had the hood of the jumper pulled tight over his head and face and was carrying a red carry bag. It is alleged that the closed circuit television (CCTV) footage depicts the Accused approaching the shop attendant standing behind the counter and threatening him with the knife; commencing to empty the money tray of the cash register and at one point picking up the tray and looking underneath; emptying the cash tray; pulling out the top drawer and appearing to rummage through the contents of the drawer; pulling the second drawer out and tipping it on the floor; and the other male removing numerous packets of cigarettes form the shelves behind the counter and placing these packets into a red coloured bag which he was holding. Immediately thereafter, both males left the store. 5One of the senior investigating officers, Inspector Craig Middleton, gives evidence that Constable Darryl Handley had located a possible witness to the incident and who had obtained the registration number (AA 61 MV) of a vehicle in which the two persons of interest had driven off. The witness had written the registration number and a description of the vehicle, "White Toyota Hilux", on a piece of paper which, at the time, Constable Handley showed to Inspector Middleton. At or about that time, the vehicle's registration was broadcast via police radio to "keep a lookout for the vehicle". It is the evidence of Inspector Middleton that at or about 10.30 p.m., he was driving south along Princes Highway, Rockdale near the intersection of Geeves Lane and noticed a large white Toyota Hilux utility parked outside an adult shop named the Black Garter. It is his evidence that the vehicle was similar in description to the vehicle that had been sighted leaving the robbery at the Lucky Seven Convenience Store earlier that night. After performing a u-turn at The Seven Ways intersection and coming to the end of Geeves Lane, it is Inspector Middleton's evidence that he saw the same white Toyota Hilux utility, which had previously been parked, now turn and enter the commuter car park in front of him, revealing the vehicle's rear registration plate "AA 61 MV". Once the vehicle had parked, Inspector Middleton sees the Accused alight from the driver's seat and walk a short distance to the Lebanese Cuisine Kebab Shop in Geeves Lane where he joined several other males at that location. It is his evidence that he immediately noticed that the Accused was wearing long white tracksuit pants and white joggers. He was also wearing a greyish/blue t-shirt and it is at this stage that Inspector Middleton recognised the Accused's clothing, namely, the white tracksuit pants and white sneakers, height and build as being very similar to one of the males he had viewed earlier on the CCTV footage robbing the Lucky Seven Convenience Store. 6It is Inspector Middleton's evidence that, after calling for assistance, he alighted from his vehicle, walked over to the Lebanese Cuisine Kebab Shop where the Accused was now seated, pointed to him and said "You come over here" , a direction with which the Accused complied, now standing several metres away from the group. 7It is at this stage that Inspector Middleton introduces himself to the Accused, asks him for his name and his movements that evening and informs him that he intends to search the Accused's vehicle on the basis that a male matching the Accused's description committed an armed hold-up at the convenience store at Wolli Creek earlier that evening and that the Accused's car was seen leaving the scene thereafter. The Accused hands his keys to Inspector Middleton. Shortly thereafter additional police arrived at the location and Inspector Middleton requests Constable Mathew Hodgkinson to write down the Accused's details. Apparently after doing so, Constable Hodgkinson, together with Constable Daniel Oliver and the Accused went back towards Inspector Middleton, who was standing next to the white Toyota Hilux motor vehicle in the commuter car park, and watched Inspector Middleton unlock the vehicle and open the rear door. Upon doing so, it is Inspector Middleton's evidence that he saw a black tracksuit top with thin stripes down each arm crumpled up on the rear seat. Also crumpled up next to this jacket was a light blue sloppy joe with the word "FILA" written across the front. It is Inspector Middleton's evidence that he immediately recognised both these items of clothing as the same tops worn by the males depicted in the CCTV footage robbing the Lucky Seven Convenience Store earlier that evening. 8As a result of locating these items of clothing, Inspector Middleton turned to the Accused, whereupon the following exchange took place: - Inspector Middleton:"Mate you are under arrest for the armed hold-up on the Lucky Seven Convenience Store at Wolli Creek earlier tonight. Do you understand that?" Accused: "Yeah I understand" Inspector Middleton:"You are not obliged to say or do anything do you understand?" Accused: "Yeah" Inspector Middleton:"Anything you say or do will be recorded and later used in evidence okay?" Accused: "Yeah" . At this stage, I note that the statements of Inspector Middleton, Constable Hodgkinson and Constable Oliver differ somewhat in that there are three different versions given of the said caution and the Accused's responses. The first is Inspector Middleton's version, referred to above. The second and third are Constable Hodgkinson and Oliver's versions which bundle the Inspector's cautionary questions and the Accused's utterances of understanding into one. Be that as it may, it is Constable Hodgkinson's evidence that after the Accused was handcuffed, he searched the Accused and emptied from his pockets a mobile phone and $160.00 in cash, which he placed on a boot of a vehicle next to him. It is at this point that the Crown asserts the primary evidence, in the form of an admission by the Accused, is made. It is Constable Hodgkinson's evidence that the following questioning took place between him and the Accused: - Hodgkinson:"Do you know why [sic] you have been arrested for." Accused: "Yep." Hodgkinson:"You may as well be honest with us, it is on CCTV footage." Accused:"Yeah, righto, it was me, you've got me." Hodgkinson:"Who was with you, I know there were two of you in the shop." Accused:"I don't know." Hodgkinson:"Come on just be honest, make it easy on you self." Accused:"His name is Seca?" Hodgkinson:"Where is he from." Accused:"Bexley somewhere, I don't know the exact address." Hodgkinson:"What were you wearing." Accused:"I was wearing a blue jumper, a white cap and red bandanna. These trackies and shoes." Hodgkinson:"What about the knife, did you have a knife." Accused: "It was in my left pocket." Hodgkinson:"Did you show the knife." Accused: "Yeah I did." Hodgkinson:"Is the money from the robbery." Accused:"Some of it." Hodgkinson:"What about the rest of the money." Accused:"The boys spent some of the money at the Black Garter." Hodgkinson:"Did you." Accused:"I don't do that shit." Hodgkinson:"Why did you do it." Accused:"I needed the money." Hodgkinson:"Do you work." Accused:"Yeah." Hodgkinson:"What do you do." Accused: "I work in construction." Hodgkinson:"What do you think you're [sic] family will say." Accused:"There [sic] not going to be happy." Hodgkinson:"What did you do with the knife." Accused:"I don't remember, we ditched it as we were driving." 9The Crown submits that the formal statement of Constable Hodgkinson, in which he records the admission is signed by the Constable within hours of the admission being made. Similarly, and contemporaneously, Constable Oliver records the Accused's words in his notebook within hours of the admission being made. 10It is the Crown's submission that prior to making the admission the Accused had been arrested and cautioned by Inspector Middleton in the presence of both Constables Hodgkinson and Oliver and the Court is invited to find the admission reliable on the basis that: - (a) the description of the clothing worn by the Accused matches that of the offender depicted on the CCTV footage; (b) clothing matching the description referred to earlier was found in the vehicle; (c) the Accused indicated that he was wearing a red bandanna; (d) the Accused's DNA profile matches that of the major contributor to a mixture of profiles found on the red bandanna in the vehicle; (e) the Accused's profile is expected to occur in approximately 1 in 500 million individuals in the general population, having regard to the Statement of Gavin Henderson of the Division of Analytical Laboratories dated 22 June 2010. 11It is at this stage that I was addressed by the parties in relation to the admission not being recorded. It is appropriate to outline the pertinent law with respect to this issue. 12Section 281 of the Criminal Procedure Act 1986 (NSW) provides as follows: - " 281Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when theadmission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissibleunless: (a) there is available to the court: (i) a tape recording made by an investigating official of theinterview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonableexcuse as to why a tape recording referred to insubparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admissionin the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not bemade. (3) The hearsay rule and the opinion rule (within the meaning of the EvidenceAct 199 5 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged incovert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who isengaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention orinvestigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possiblecommission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period inwhich it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately butcontemporaneously recorded audio recording." 13Section 70 of the Criminal Procedure Act 1986 (NSW) provides: - " 70Certain evidence may not be excluded A Magistrate in committal proceedings may not exclude evidence on any of the grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995 ." 14Section 85 of the Evidence Act 1995 (NSW) provides: - "85Criminal proceedings: reliability of admissions by defendants (1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note. Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216. (2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3)Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b)if the admission was made in response to questioning: (i)the nature of the questions and the manner in which they were put, and (ii)the nature of any threat, promise or other inducement made to the person questioned." 15Section 90 of the Evidence Act 1995 (NSW) provides: - "90Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a)the evidence is adduced by the prosecution, and (b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note. Part 3.11 contains other exclusionary discretions that are applicable to admissions." 16The Crown contends that given the circumstances in which the admission was made, it was not reasonable to record the admission as it was being made and as required by s.281 of the Criminal Procedure Act 1986 (NSW) and, accordingly, there is a reasonable excuse for the lack of recording in respect of the admission. It is further submitted that there is nothing in the circumstances of the giving of the admission that would make it likely that its truth was adversely affected, within the meaning of s.85(2) of the Evidence Act 1995 (NSW), nor is the use of the admission unfair to the Accused, within the meaning of s.90 of the Evidence Act 1995 (NSW). It is on these bases that the Court is invited to find that the admission is the most reliable indicator that the Accused committed the offence. 17The Defence submits that the exchange of questions and answers which took place between Constable Hodgkinson and the Accused is a conversation, using the words of s.281, between a relevant "investigating official" in circumstances where the admission was made in the course of "official questioning" and which relates to an "indictable offence". The indicia of s.281(1) are not coined in the alternative but, rather, are conjunctive and, in my opinion, where those indicia are satisfied, evidence of the admission must be excluded, by virtue of s.281(2) unless there is available to the Court either: - (a) A tape recording made by an investigating official of the interview in the course of which the admission was made; or if the prosecution establishes that there was a reasonable excuse as to why a tape recording could not be made, then a tape recording of a subsequent interview with the person who made the admission and in which that person states that he made the admission in those terms; or (b) The prosecution establishes that there was a reasonable excuse as to why a tape recording could not be made. 18The onus, if there is no tape recording of the kind referred to, is on the Crown to establish a reasonable excuse as to why a tape recording could not be made. The words "reasonable excuse" are defined by s.281 in an inclusive, rather than an exhaustive, sense. One of the definitions of "reasonable excuse" is the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. 19To the extent that the Crown's submissions contend that a reasonable excuse can be gleaned from the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned, I am not satisfied that the Crown has discharged its onus. To the extent that the Crown submits that a reasonable excuse may be gleaned from the circumstances in which the admission was made and, hence, it was not practicable or reasonable to record it as it was being made, I am not satisfied that the Crown has discharged its onus in establishing that there was a reasonable excuse as to why a tape recording could not made. This is particularly so having regard to the fact that moments after the admission was made by the Accused, Constable Hodgkinson, in his own statement of evidence, states that he was handed a digital video camera and was instructed to, and indeed did, film the entire search of the Accused's vehicle, such search being tendered in DVD format as part of Exhibit 1 to the Crown's brief of evidence. It is evident that the Police were part way through a subsequent interview, namely, an electronic record of interview, with the Accused and, presumably, in which the Accused would have been afforded the opportunity to adopt or reject the admission in the terms alleged, which would have satisfied the requirement under s.281(2)(a)(ii) of the Criminal Procedure Act 1986 (NSW). However, that record of interview was suspended when the Accused's brother telephoned the police station and, after receiving legal advice, the Accused exercised his right to silence, declining to answer any further questions. The Crown, quite rightly, did not criticise the Accused course of action. The fact remains, however, that the original admission was not tape recorded and, in my opinion, no reasonable excuse has been made out by the Crown for that failure as required by s.281(2) of the Criminal Procedure Act 1986 (NSW). 20In the circumstances, and for the reasons given, I find that the evidence of the admission is not admissible pursuant to s.281 of the Criminal Procedure Act 1986 (NSW). 21Having excised the admission from the material available to this Court, I am left with the remaining evidence which, it is conceded, is circumstantial evidence. 22The Crown proposes to rely on the following pieces of evidence: - (a) the DNA evidence of the Accused as the major contributor to a mixture of profiles found on the red bandanna located in the Accused's vehicle. (b) the evidence of a bystander, Mr Mohamad Bazzi, who allegedly saw the Accused leaving the scene of the crime and entering a vehicle. It will be alleged that Mr Bazzi provided a police officer with a handwritten note recording the registration number "AA 61 MV" and a description of the vehicle as "White Toyota Hilux". Mr Bazzi has refused to provide police with a statement, but the Crown submits he is an "available" witness and his handwritten representation as to the registration number and description of the vehicle was made contemporaneously. Enquiries conducted by the police with the Roads & Traffic Authority in relation to the registration number have revealed that the vehicle is registered to Benchmark Civil Pty Limited and further enquiries with the Australian Securities and Investments Commission have revealed that the director of the company is a Mr Michael Ayache of 49 Beaconsfield Street, Bexley, being the same address volunteered by the Accused as to his place of residence. The Crown does not contend, however, that the company director is one and the same person as the Accused; (c) it is the white Toyota Hilux vehicle which was searched, and in which the matching clothing was found, and of which the Accused said he was the driver that evening; (d) the Accused was arrested only approximately three kilometres from the scene of the offence; (e) the offence occurred at approximately 8.30 p.m. and the Accused was arrested at approximately 10.30 p.m.; (f) the Accused was not far from the adult shop where he indicated others had spent money which was obtained during the offence; (g) the search of the vehicle uncovered eleven unopened packets of Dunhill cigarettes of differing sizes and varieties. Between 25 and 40 packets of Dunhill brand cigarettes, of different varieties (particularly Red, Blue, Silver and Menthol in 25 cigarette packs and Dunhill Red, Blue and Silver in 20 cigarette pack), were taken from the scene of the crime. It is this property found in the vehicle, in the Crown's submission, which, given its nature, tends to implicate the Accused; (h) photos of the Accused at the time of his arrest show the Accused to be wearing similar white track pants and similar shoes to those worn by the offender wearing the red bandanna, white hat and blue "FILA" jumper as depicted on the CCTV footage; (i) the Accused's build is also not dissimilar to that of the offender depicted in the CCTV footage; (f) the bandanna and jumper match that found during the search of the vehicle. 23Having regard to the above, the Court is invited by the Crown to find that there is a strong inference that it was the Accused who committed the offence. 24I turn now to what could loosely be referred to as independent evidence. Paragraphs 9 and 11 of the statement of Constable Handley dated 5 January 2010 provide as follows: - "9.A short time later I was approached by Ms HAMIDI who told me that she saw a male run from the store and get into a white twin-cab utility, possibly a Holden Rodeo or similar. I recorded Ms HAMIDI [sic] details in my notebook. 11.A short time later I was approached by Mr Mohamad BAZZI who told me that as he walking to his car he saw a male run past him. He thought this was a bit unusual the manner and speed in which the male was running, and decided to follow the male. He told me that he saw this male enter a white Toyota Hilux dual-cab with a chrome bar and spotlight on the top. Mr BAZZI told me that this vehicle was parked on Mt Olympus Drive, Wolli Creek. Mr BAZZI told me that he wrote the vehicle's registration down on a piece of paper. Mr BAZZI handed me a piece of paper. On this paper was written "AA61MV white Toyota Hilux"." 25Paragraph 5 of the statement of Constable Handley dated 23 August 2010 provides as follows: - "5.In addition to the information from my previous statement I recall Mr. BAZZI telling me that he saw the vehicle, AA61MV, leave the location travelling south along Mt Olympus Drive." 26Paragraphs 4 and 5 of the statement of Senior Constable Lara Tarn forming part of the brief of evidence provide as follows: - "4.On Wednesday 10th March 2010 I contacted Mohammed Bazzi, the male who had provided Constable Handley with a piece of paper with vehicle registration and description on the night 28th December 2009 after a [sic] armed robbery at the Lucky Seven Convenience Store at Wolli Creek. 5.I had previously been informed by Detective Senior Constable Babb that Mr Bazzi would not assist Police with what he had witnessed at the time of the robbery. In my conversation with Mr Bazzi I asked if he had reconsidered his position in relation to providing a statement about what he had seen and told Police on the 28th December 2009. Mr Bazzi advised me that he did not wish to assist in any way. I had a conversation with Mr Bazzi about the seriousness of the matter however he would still not assist Police. I told Mr Bazzi that he may be subpoenaed to court in relation to the matter and gave him my details if he changed his mind." 27Whilst there is reference in the brief to contact being made with Mr Bazzi, there is no evidence in the brief about any contact made with Ms Hamidi. The Crown concedes that neither Ms Hamidi nor Mr Bazzi have provided a statement to Police in relation to their observations on the night in question. For all intents and purposes, there is no physical eyewitness evidence. 28The Defence submits that the evidence proffered by Constable Handley in paragraphs 9 and 11 of his statement dated 5 January 2010, in so far as it relates to his interaction with Ms Hamidi and Mr Bazzi, is hearsay and, hence, inadmissible. The Defence submits that the prosecution case is a weak one at its highest having regard to the following: - (a) there is no conclusive fingerprint evidence in relation to the alleged manipulation and throwing of drawers on the floor of the convenience store during the robbery; (b) there is no DNA evidence placing the Accused at the scene of the robbery; (c) the knife used in the robbery forms no part of the evidence and has not been located; (d) there is no direct evidence that the red bandanna found in the rear seat of the Accused's vehicle was, in fact, the bandanna worn by the offender at the scene of the robbery; (e) to the extent that the police statements contain evidence of the matters referred to above, such evidence is merely derived from the opinions of the respective officers; (f) the fact that the Accused's DNA profile was found on the red bandanna located in the rear seat of the vehicle, is insufficient. There are a number of reasonable hypotheses; (g) there is very limited probative value in the comments made by Ms Hamidi and Mr Bazzi and, as such, their evidence, albeit not having provided a statement, gives no description of the offenders; (h) there is no temporal nexus, that is, as to whether what Ms Hamidi and Mr Bazzi saw allegedly saw was before or after the robbery; (i) there is no reference as to where the witnesses were or how they were alerted to what was happening; and (j) there is no descriptor as to clothing or build of the alleged offender or offenders. 29The Defence submits that this hearsay material does not advance the prosecution case. In particular, it was submitted that the above matters are a number of disparate and unreliable pieces of evidence that are insufficient to mount a viable circumstantial case against the Accused. 30Where evidence is circumstantial, the standard of proof in a criminal case does not alter: Plomp v R (1963) 110 CLR 234 at 252. In determining whether to accept the evidence of a particular fact, the whole of the evidence must be considered rather than considering each item of evidence separately: Chamberlain v R (No 2) (1984) 153 CLR 521 at 536 per Gibbs CJ and Mason J. An inference of guilt may be drawn from a combination of proved facts none of which by itself would support the inference, but not from several facts whose existence is in doubt: Chamberlain v R (No. 2) (1984) 153 CLR 521 at 536 per Gibbs CJ and Mason J. However, a jury cannot view a fact as a basis for an inference of guilt unless it is satisfied of the existence of that fact beyond reasonable doubt. No conviction may be based on such evidence unless the circumstances exclude any rational hypothesis consistent with innocence. Jurors may, however, agree in reaching the same ultimate conclusion but may disagree as to what evidence is to be accepted or as to what inferences are to be drawn from the evidence which they do accept: Chamberlain v R (No. 2) (1984) 153 CLR 521 at 534 - 539 per Gibbs CJ and Mason J. Sometimes intermediate facts constituting indispensable links in a chain of reasoning towards an inference of guilt should be identified and it is common for a direction to be given to a jury that such facts must be proved beyond reasonable doubt: Shepard v R (1990) 170 CLR 573. 31Whilst I am required to act judicially, that is, justly and fairly, what I am required to bear in mind in conducting a committal hearing is that I am carrying out an executive or ministerial function: See Grasby v R (1989) 168 CLR 1. The fundamental objective of committal proceedings is to facilitate a fair trial in the event that the Accused is committed for trial: See Hannah v Kearney and DPP (Studdert J, 28 May 1998, unreported). The nature and purpose of these proceedings is to receive, examine and permit the testing of evidence introduced by the prosecutor before a magistrate in order to determine whether there is sufficient evidence to warrant the person charged being put on trial and, if not, to discharge that person: See Moss v Brown (1979) 1 NSWLR 114 at 125. 32Even if I were to excise from my mind the hearsay evidence of Ms Hamidi and Mr Bazzi, proffered through the witness statement of Constable Handley dated 5 January 2010, the Court is still left with a number of pieces of evidence which, when taken together, circumstantial as they may be, constitute indispensable links in a chain of reasoning towards an inference of guilt. Trial judges provide directions to juries every day and such directions apply to circumstantial evidence and the drawing of inferences. Competing inferences, as are evident from this case, may arise, whether the case involves one of circumstantial or direct evidence, however, it is for the jury to determine, properly directed, whether the inference of guilt arises and, if so, whether it completely overcomes all other inferences so as to leave no reasonable doubt in their minds: Plomp v R (1963) 110 CLR 234 at 246, in a judgement substantially agreed with by all other members of the Court. It is the words "properly instructed" in both s. 62 and 64 of the Criminal Procedure Act 1986 (NSW) which assist in operating to ensure that the Accused receives a fair trial, within the rules of evidence, the parameters of which are dictated by the Evidence Act 1995 (NSW) and common law interpretation of that statute. 33Accordingly, for the reasons given, I find that the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt, that the Accused has committed an indictable offence, this being the threshold test set out in s.62 of the Criminal Procedure Act 1986 (NSW). For the purposes of s.63 of the Criminal procedure Act 1986 (NSW), I am required to now afford the Accused the opportunity to answer the charge and to give a warning in the form required by r.3.3 of the Local Court Rules 2009 (NSW) in the following words: - "[Mr Ayache. I will give you a warning and an opportunity to answer the charge. You may consult with your barrister before answering but you must ensure that your answer is recorded through the microphones ] . Before you say anything in answer to the charge, you should know that you do not have to say anything unless you want to. However, if you do say something, it may be recorded and used against you at your trial. You should understand that, if a promise of favourable treatment has been made to you if you make admissions as to your guilt, that promise cannot be relied upon. Similarly, you have nothing to fear from any threat that may have been made to you to persuade you to make any admission as to your guilt. However, even if you have received such threat or promise, anything you say may now still be used against you at your trial. Do you want to say anything in answer to the charge? [No] Do you want to give any evidence in relation to the charge? [No] Do you want to call any witnesses on your behalf?" [No] 34As to the threshold test in s.64 of the Criminal Procedure Act 1986 (NSW), I have considered all the evidence and, in my opinion, having regard to that evidence, I am satisfied that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the Accused person of an indictable offence. 35Accordingly, the Accused is committed for trial to, and directed to attend the arraignment at, the District Court of NSW at Sydney at 9.30 a.m. on Friday 25 February 2011. By law I am obliged to hand to the Accused a copy of two notices. One sets out the Accused's rights under the Bail Act 1978 (NSW), and the second, the provision of legal aid. It also explains the position if the Accused intends at the trial to rely on an alibi defence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2013