Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khan v R [2012] NSWCCA 74 Hearing dates: 21 February 2012 Decision date: 27 April 2012 Before: Macfarlan JA at [1] RS Hulme J at [56] Garling J at [57] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - detention with the intention of holding to ransom in the company of others with occasioning of actual bodily harm - s 86(3) Crimes Act 1900 - whether verdict unsafe and unsatisfactory - s 6 Criminal Appeal Act 1912 - whether evidence to support Crown case Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Rasic v R [2009] NSWCCA 202 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Michael Dean Khan (Applicant) Regina (Respondent) Representation: Counsel: G Corr (Applicant) J Dwyer (Respondent) Solicitors: JPM Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2008/11508 Decision under appeal Citation: R v Michael Dean Khan Date of Decision: 2010-11-12 00:00:00 Before: Cogswell DCJ File Number(s): 2008/11508 Judgment 1MACFARLAN JA: On 6 September 2010, at the conclusion of a trial in the District Court before Cogswell DCJ and a jury of 12, the jury found the applicant guilty of the following offence with which he and two co-accused had been charged and to which they had pleaded not guilty: "On or about 4 September 2008, at Doonside, in the State of New South Wales, while in company with each other, [the accused] detained Maninder Singh without his consent and with the intention of holding him for ransom, and at the time of detaining in these circumstances, actual bodily harm was occasioned to Maninder Singh" (s 86(3) Crimes Act 1900). 2The jury also found the co-accused, Mr Saurav Mahay and Mr Dushand Rana, guilty of the offence charged. 3On 11 November 2010 the trial judge sentenced the applicant to imprisonment for a total term of four years and six months commencing on 9 September 2010, with a non-parole period of two years and eight months commencing on the same date. 4The sole ground of appeal against his conviction that the applicant pressed at the hearing of the appeal was that the jury's verdict against him was unsafe and unsatisfactory. As this ground of appeal does not raise "a question of law alone" (see s 5(1)(a) of the Criminal Appeal Act 1912), leave to appeal is required under s 5(1)(b) of that Act (Rasic v R [2009] NSWCCA 202 at [12]). 5In essence, the Crown's case against the applicant was as follows. On the evening of 4 September 2008 the victim ("Maninder") voluntarily accompanied the applicant's co-accused (to whom I shall refer as Saurav and Dushand) in a visit to the applicant's home. After they had arrived, Maninder asked to leave but Saurav and Dushand told him that he would have to stay. During the evening Maninder was taken to the backyard of the home where he was beaten by the co-accused in the presence of the applicant. Maninder was told that he could not leave until $7,000 was paid to the co-accused. He was threatened with a knife and detained at the applicant's home throughout the night. Shortly before midnight, four friends of Maninder, including Mr Vikram Singh ("Vikram"), entered Blacktown Police Station and complained that Maninder was being held elsewhere against his will. A number of telephone calls occurred thereafter between Vikram and those alleged to be detaining Maninder. A number of these calls were received by Vikram whilst he was at the police station and were intercepted and recorded by the police. At 11.55 am on 5 September 2008, the applicant rang Detective Senior Constable Camilleri at the police station and agreed to bring Maninder there by 12.30 pm. This did not occur and at 1.10 pm in Westfield Shopping Centre car park, across the road from the police station, police stopped a vehicle in which the applicant, his co-accused and Maninder were travelling. The applicant and his co-accused were arrested and subsequently charged with the offence for which they stood trial. THE APPLICANT'S GROUND OF APPEAL 6The applicant's ground of appeal invokes the power and duty of this Court embodied in s 6 of the Criminal Appeal Act 1912 to allow an appeal against conviction if the Court is of the opinion that the verdict of a jury should be set aside upon grounds that the verdict "is unreasonable, or cannot be supported, having regard to the evidence", subject to the proviso that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. There will be little, if any, room for operation of the proviso where the verdict is found to be unreasonable or not supported by the evidence. 7In SKA v The Queen [2011] HCA 13, 243 CLR 400, French CJ, Gummow and Kiefel JJ described the principles applicable to an appeal on this ground as follows: "[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence". [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' ... [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'" (references omitted). 8Later in their judgment French CJ, Gummow and Kiefel JJ described the "central question" for the Court of Criminal Appeal as "whether on the evidence the court was satisfied that the applicant was guilty of the offences" (at [20]). 9To determine this appeal in accordance with these principles, I have reviewed the whole of the evidence given at the trial. I proceed to summarise that evidence insofar as it relates to this appeal. As the trial took place over some 23 court days, my summary is necessarily far from exhaustive. It is drawn largely from the Crown's 71 page Summary of Trial, the accuracy of which was accepted by counsel for the applicant. THE CROWN CASE AT THE TRIAL The evidence of Mr Maninder Singh, the victim 10Maninder gave evidence that he had come to Australia on a student visa which had been cancelled, but that he had obtained a bridging visa. 11He said that he lived in a house at Doonside with three friends, Gurvinder (also known as Gary), Gulab and Manjeet. On the evening of 4 September 2008 another of his friends, Vikram, came to the house, as did Saurav and Dushand. Saurav asked Maninder to come with him and Dushand to buy some alcohol. Maninder agreed. After the alcohol was bought, Saurav told him that the three of them would visit the home of his cousin (this being a reference to the applicant). After their arrival there the three of them and the applicant sat in a car outside the applicant's home for 10 to 15 minutes. During this time Maninder said to Dushand "Let me go home", to which Saurav replied "You stay here with us tonight". Maninder then said "I'm going to go back home", to which one or more of the others replied "You're not going home, you're going to stay here". The applicant lived at the home with his wife and child who were both at home on the night of 4 - 5 September 2008. 12Maninder's evidence was that he was then taken to the backyard of the applicant's home where Saurav and Dushand kicked him in the stomach and "hit his face, his ear, his stomach and all his body" (Transcript p 35 - 36). Saurav and Dushand told him to give them $7,000. 13Maninder said that he was shouting "help me, help me" and that the beating continued for about 20 or 25 minutes during which time Dushand threatened him with a knife. Saurav and Dushand said that they needed $7,000 from him and were going to call Maninder's father in India, presumably to demand the money. They then told Maninder to telephone his friend Vikram in order to obtain the money. They forced Maninder to tell Vikram that he (Maninder) was alright but needed $7,000. Maninder was then taken into a shed in the backyard for about an hour. After that, Saurav and Dushand took him into the house and he was forced to lie on a bed for the remainder of the night between Saurav and Dushand. 14Maninder initially said that he was not sure whether the applicant was inside or outside the house when he was taken to the backyard (Transcript p 33). Maninder was also unable to recall the applicant's whereabouts when he was being beaten in the backyard (Transcript p 34). When asked if others were present with Dushand and Saurav in the shed, Maninder said "I'm not sure but I remember Saurav and [Dushand] were there. I - I forget" (Transcript p 45). At this stage the Crown Prosecutor sought leave to use a record of a police interview with Maninder to revive his memory. This leave was given later in the trial and the recording of the interview was played to Maninder in the absence of the jury. In the presence of the jury, Maninder then gave evidence that the applicant was present when Saurav and Dushand beat him in the backyard and that the applicant was present with himself, Saurav and Dushand in the shed (Transcript pp 90 - 91). 15Maninder said that when he got out of bed the next morning, he could not walk because of the injuries that he had sustained the night before. The applicant, his wife and child, Saurav, Dushand and Maninder remained at the house for one to two hours. Saurav and Dushand then told Maninder to call Vikram and tell him that they were going to Auburn Police Station (Vikram was in fact at Blacktown Police Station at the time) and "they said like tell them lie, that you bashed by some other peoples, not from us" (Transcript p 58). Maninder said that he agreed to do so because he was "really scared". 16The applicant then drove to the Westpoint Shopping Centre car park with Maninder seated in the back with Saurav, and Dushand sitting in the front. After they had parked, Dushand moved to the back of the car so that Maninder was positioned between himself and Saurav. Saurav rang Vikram again, informing him that they were going to the city and intended to kill Maninder and throw him in the river. After the car started moving, the police stopped it and arrested the applicant, Saurav and Dushand. 17In cross-examination Maninder agreed that the threats made towards him on the night of 4 September 2008 were in the Punjabi language but he denied that any discussion about money including numbers or the word "thousand" occurred only in Punjabi. He maintained that they were spoken in English and Punjabi. He agreed that the applicant did not at any stage speak in Punjabi. 18Although Maninder initially denied that he had asked the applicant to lend him money, he later agreed that he had asked the applicant if he could help him with money. 19Maninder also agreed that the applicant did not physically touch him or threaten him and always treated him "nicely". He did not complain to the applicant's wife about his injuries or seek her help. Mr Vikram Singh's evidence 20Vikram said that he is a distant cousin of Maninder. He said that after Saurav and Dushand arrived at Maninder's house they said that they wished to speak to Maninder outside. Vikram later saw them drinking alcohol whilst sitting in a car outside but when he returned later the car had gone. About 15 minutes later Saurav rang him and said "If you need your boy back we need $7,000 now". Vikram regarded the call as serious. About an hour later Maninder called Vikram. His voice was shaking and he could not speak clearly. He said to Vikram "please give them $7,000 and take me back". 21Vikram decided to report the matter to the police and did so at Blacktown Police Station at about midnight. About 12.15 am, whilst he was with the police, Vikram received a call from Saurav who asked if Vikram had made arrangements for the money to be provided. About an hour later Maninder called Vikram to ask the same question. Vikram said that they had only arranged $4,000. Another hour later Maninder called again and asked how much they had arranged. Vikram repeated that he had only $4,000. Maninder replied "It's okay, bring whatever you got". Vikram said that Maninder could not speak clearly and sounded like he was in pain. Other calls were made the following morning. With Vikram's concurrence, the police recorded eight calls. The recordings of seven of these calls were tendered in evidence against the applicant. 22Even when translated, the calls tendered against the applicant were difficult to understand. However what can be discerned from the recordings tended to support Vikram's evidence. In particular, the recordings indicated, consistently with Vikram's evidence, that Saurav was seeking money from Vikram, that Vikram said that he only had $4,000 and that Vikram feared that Maninder had been beaten. Mr Rohit Sharma's evidence 23Mr Sharma is a friend of Maninder. He gave evidence that on the evening of 4 September 2008 at Maninder's house, Dushand or Saurav asked Maninder to come outside to talk in the car. Later Mr Sharma observed that Maninder, Saurav, Dushand and the car had gone. He said that thereafter Vikram repeatedly called Saurav to ask about Maninder. Police and medical evidence 24Dr Ronald Dizon, a physician, was working in the Emergency Department at Blacktown Hospital on 5 September 2008 when Maninder was brought in. He said that Maninder provided a history of an assault and possible head injury that caused a loss of consciousness. After examining Maninder, Dr Dizon was satisfied that Maninder had a bruise surrounding his left eye, blood under the skin and concussion (Transcript pp 945 - 6). The injuries were consistent with the history that he had been given. He was not asked to express a view about how recent the injuries were. 25Detective Senior Constable Camilleri of Blacktown Police Station gave evidence that just before 1.00 am on 5 September 2008 he was told by other police officers at the station that a person named Maninder Singh was missing and that they were investigating suggestions that he may have been kidnapped by two male persons who were demanding a ransom of $7,000 for his return (Transcript p 930). At about 11.55 am the following morning he received a telephone call from the applicant who said that a friend of his had reported that Maninder was missing. The applicant said that Maninder was with him and was fine. Detective Camilleri asked the applicant to bring Maninder to the police station at 12.30 pm and the applicant agreed. 26Detective Camilleri said that later in the day he saw Maninder and observed that he had "bruising and swelling around his left eye and cheek, two red scratches on the left side of his forehead while his left ear was very swollen and purple in colour" (Transcript p 1028). Maninder complained that his stomach was sore and that Dushand and Saurav "did this". Maninder said that the applicant was present when he was assaulted by Dushand and Saurav (Transcript p 1030). 27Detective Camilleri also gave evidence that Constable Allison had found in a car located at the applicant's premises the empty packaging for two paring knives and a receipt from Blacktown Woolworths for these items dated 4 September 2008 and timed at 18.33. 28Detective Brennan gave evidence that at about 1.15 pm on 5 September 2008 in the Westpoint Shopping Centre car park he arrested the applicant for kidnapping. He found a piece of cardboard in the applicant's jacket pocket with Maninder's mobile phone number written on it. Also written on the cardboard was a reference to an amount of $7,000, or more, with the numbers of hundreds and tens of dollars indistinct. The number of thousands (seven) however was clear. Detective Brennan observed that Maninder had some swelling and bruising around his left eye. 29Senior Constable Fishlock, who was also present at the arrest, observed that Maninder had a bruised left eye, swelling and redness to his left ear and the left side of his head, and heavy breathing. Constable Fishlock said that Maninder was complaining about his stomach and that he formed the view that Maninder required an ambulance. 30Constable Singh, who was present when Maninder was brought to Blacktown Police Station, said that one side of Maninder's face was swollen, that he could hardly speak and that he complained about pain behind his neck and swollen ribs. Maninder said to Constable Singh "they bashed me a lot last night and they have threatened that they will stab me if the money is not delivered" (Transcript pp 625 - 630). 31Detective Senior Constable Harris, who was also present at the arrest, observed that Maninder appeared very distressed and in a considerable amount of pain. 32Detective Senior Sergeant Kelly was present at Blacktown Police Station when Vikram and three others arrived at about 12.05 am on 5 September 2008. Vikram told Detective Kelly that he needed help because his cousin Maninder had been kidnapped and they wanted $7,000 "or they will kill him". 33Detective Kelly gave evidence that thereafter Vikram received a number of calls on his mobile. The recorded interview with the applicant 34The Crown tendered the recording of an interview of the applicant by the police (Exhibit J). The jury was given a printed, edited transcript (MFI 34) to read whilst the recording was played in court. 35The applicant said in the interview that Dushand, Saurav and Maninder all spoke a common language which the applicant thought was Indian, with the dialect being Punjabi. When asked whether he spoke any languages besides English, the applicant said that he spoke eight languages: "I speak Arabic, I speak Urdu, I speak Hindi, I speak Punjab, not that Punjabi, Fijian, English, Indo-Fijian and Afghan" (Q & A 404). It is not clear what the applicant meant when he answered "I speak Punjab, not that Punjabi". He proceeded to say that he did not so much speak Punjabi as understand it but then said that he had intended in his earlier answer to refer to another language, Gujarat, rather than Punjabi. When pressed about whether he could understand Punjabi he said "maybe a word here and there. It's like Pidgin English to me" with certain words in common with words he knew (Q & A 398 - 411). He said that Dushand, Saurav and Maninder spoke together in Punjabi "99 per cent of the time" but when the applicant was present they would "throw in" some English and Hindi. When the applicant was asked why he "backtracked" from saying confidently that he spoke Punjabi, he said that when he was in the group (on 4 - 5 September 2008) he merely pretended that he knew how to speak it (Q & A 418 - 450). 36The applicant denied that Maninder was held against his will at the applicant's home and that money was demanded for his release. He also denied knowledge of any assaults on Maninder. He said that one reason Maninder was at the applicant's house that night was that "basically he was asking for my help, financial help" (Q & A 442) and that during the evening Maninder pestered the applicant for money. The applicant said that Maninder told him that he had been assaulted a couple of days earlier. The applicant did not notice any injuries to Maninder other than some redness on the morning of 5 September. 37The applicant said that the piece of cardboard found in his pocket said on one side "$7,170 minus $1,000" and that the applicant had written this whilst the group was in the shed in his backyard. He said that those present had had an issue with some monies and that they were talking about what their share was. He said that the others were basically talking amongst themselves and that the applicant was trying to scribble down what was said because he could not make sense of it. THE CASE FOR THE APPLICANT 38The applicant did not give evidence but his wife did. Mrs Khan's evidence 39Mrs Khan gave evidence that she lived with the applicant and their seven-year old son. She said that she and her son were at home on the night of 4 - 5 September 2008. In the evening she heard voices coming from the shed in the backyard but she could not understand the language being spoken. When she got up in the middle of the night she walked past the spare room and saw through the open door that there were three people in the bed. 40The next morning she was introduced to Maninder and did not observe any injuries that he had. She was shown a photograph of Maninder's face taken on the day after she saw him at her house. She said that she did not see his face looking like that. 41She said that when she was at Blacktown Police Station for the purpose of being interviewed she heard Detective Camilleri saying to Maninder that he must remember to involve the applicant in the case and Maninder responding "but [the applicant] hasn't done anything to me" (Transcript p 1143). 42In cross-examination she said that even though she talked to Maninder she had only looked at him briefly as "in our culture we can't just look at the man straight into their face like that for any length of time, so I would be talking to him, but not like staring right at him like that" (Transcript pp 1155 - 6). THE CASE FOR THE CO-ACCUSED DUSHAND 43Dushand said that whilst he was at Maninder's home on 4 September 2008 he told Maninder that he and Saurav were going to buy some more drinks and that Maninder said that he would go with them and show them a nearby liquor shop. Dushand told Maninder that they also had to go to a friend's place to plan his birthday party and Maninder accepted that. During the drive, Maninder asked if Dushand could lend him some money. Dushand said that he could not but that he would ask his "brother". Dushand was referring to the applicant whom he regarded as a brother. 44Dushand denied that Maninder was detained against his will and that any money was demanded to secure his liberty. He denied that Maninder was assaulted on the night of 4 - 5 September 2008 and said that any injuries Maninder had were the result of a fight he had been involved in two days earlier. THE APPLICANT'S SUBMISSIONS ON APPEAL 45The applicant's submissions included the following: "18. The Crown case was circumstantial. There was no direct evidence of guilt. There are other hypotheses consistent with innocence. Amongst those is that the [Applicant] merely agreed to [Saurav], [Dushand] and [Maninder] staying at his residence overnight and when informed of the suggestion that [Maninder] was being detained he was in transit to the Police Station when arrested. 19. Even if the evidence is considered to be such that a conviction could occur it is nevertheless a situation where the conviction should not occur. The Crown case is flimsy, at best, and there are alternate hypotheses consistent with innocence. The Court should have at least the doubt referred to in M v R" (Applicant's Written Submissions). 46The applicant's counsel submitted that the figure on the piece of cardboard found in his possession was $7,100 and that "this was never a figure which was in any manner associated with the ransom demands". 47The applicant also submitted that his failure to go directly to the police station after he had spoken to Detective Camilleri was immaterial given that it was he who contacted the police after learning that they were looking for Maninder. DISPOSITION OF APPEAL 48As noted earlier (see [7] - [8]), this Court's task is not simply to determine whether there was evidence capable of supporting the jury's verdict. The Court must also satisfy itself of the applicant's guilt. It is however necessary to recognise that the jury had the advantage over the course of a long trial of seeing and hearing the witnesses give evidence and it is clear from its verdict that it rejected both the applicant's account of events (contained in the recording of his interview) and that of his co-accused Dushand. Furthermore, the jury found no reason based upon its observation of the Crown witnesses to reject the material parts of their evidence. Taking these matters into account, my view, after reviewing the evidence, is that the Crown proved its case beyond reasonable doubt and that the applicant committed the offence of which he was convicted. 49The following evidence is particularly significant in this respect. 50The evidence of Maninder, if accepted, left no room for any reasonable doubt that the applicant, although not the prime actor in the events that occurred, was present during and facilitated the acts of Saurav and Dushand in detaining Maninder, assaulting him and demanding payment for his release. The events in question occurred in the applicant's presence at his home or in a car that he was driving. He took no steps to dissent from what occurred and by his presence, the provision of his home and his driving of the car, he participated in the offending conduct. 51There was considerable evidence that supported Maninder's version of events. In particular, there was the evidence of Vikram concerning calls from Saurav requesting ransom money (see [20] - [22] above) and the evidence of various police officers and Dr Dizon of Blacktown Hospital as to the physical injuries suffered by Maninder and observed immediately after the conclusion of his detention (see [24] - [33] above). Furthermore, the complaints by Maninder of which the police witnesses gave evidence were consistent with the evidence that Maninder gave of his alleged detention and the assaults on him. 52Support for Maninder's evidence was also provided by the recordings of telephone calls made by the police and tendered against the applicant (see [22] above). Additionally, the piece of cardboard found in the applicant's possession which he admitted in his police interview that he wrote on, provided further evidence that a sum of $7,000, or at least a figure in that vicinity, was spoken of during the period of the alleged detention. The note on the piece of cardboard of Maninder's mobile phone number added strength to this evidence. 53Vikram's action in attending the police station, with his friends, to report the detention and the demands for money provided strong support for his evidence. Mr Rohit Sharma's evidence also supported the initial part of Vikram's evidence concerning the departure of Maninder, Saurav and Dushand from Maninder's home and Vikram's telephone conversations thereafter with Saurav concerning Maninder (see [23] above). 54In my view, contrary to the applicant's submission (see [45] above), no alternative hypothesis consistent with the applicant's innocence was open on the evidence. The jury's obvious acceptance of the evidence of Maninder and Vikram was overwhelmingly supported by the evidence at the trial taken as a whole. ORDERS 55I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. 56RS HULME J: I agree with the orders proposed by Macfarlan JA and with his Honour's reasons. 57GARLING J: I agree with the orders proposed by Macfarlan JA, and with his reasons for making those orders. ********** 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: 27 April 2012