Hugo JACOBS v R [2013] NSWCCA 332

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hugo JACOBS v R [2013] NSWCCA 332 Hearing dates: 20 August 2013 Decision date: 20 December 2013 Before: Hidden J at [1] Latham J at [60] Adamson J at [61] Decision: Appeal allowed, conviction set aside, new trial ordered. Catchwords: CRIMINAL LAW - appeal against conviction - supply of commercial quantity of methylamphetamine - fresh evidence as to credibility of a witness - whether identification evidence intentionally influenced - expert evidence Legislation Cited: Evidence Act 1995 Cases Cited: Grey v The Queen [2001] HCA 65, 75 ALJR 1708 R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417 Keller v R [2006] NSWCCA 204 R v David and Gugea (CCA, Unreported, 10 October 1995) Category: Principal judgment Parties: Hugo Jacobs (appellant) Regina (respondent) Representation: Counsel: G Turnbull SC (appellant N Noman SC (respondent)

Solicitors: Bilias & Associates (appellant) S Kavanagh - Solicitor for Public Prosecutions (respondent) File Number(s): 2008/63899 Decision under appeal Court or tribunal: District Court Date of Decision: 12 May 2011 Before: Sweeney DCJ File Number(s): 2008/63899

Judgment 1. HIDDEN J: At trial in the District Court the appellant, Hugo Jacobs, was found guilty of supplying a commercial quantity of methylamphetamine. He was sentenced to imprisonment for 9 years with a non-parole period of 6 years. He appeals against his conviction and seeks leave to appeal against the sentence. 2. Put shortly, it was the Crown case that the appellant was involved in a joint criminal enterprise with one Bassam Darwiche to supply 413.1 grams of methylamphetamine to two men from Melbourne, Sammy Quariaqus and Martin Mansour, at a motel at Casula on 19 June 2008. The evidence against the appellant was circumstantial. Police had been intercepting calls on a phone being used by Mr Darwiche, who was under investigation. It was alleged that the appellant was a party to some of those calls, and that during them the two men used code words referring to drugs. 3. Mr Darwiche lived in Wellington Road, Sefton. The home was subject to video surveillance by police. In the afternoon of 19 June 2008 a green Holden Maloo utility was seen to stop near that home, and the driver alighted from it. It was the Crown case that this was the appellant. Later that afternoon, under police observation, that man and Mr Darwiche travelled in the Maloo to the motel at Casula. They were seen to enter the motel and leave it shortly afterwards. It was alleged that the drug was supplied in a room at the motel registered in the name of Mr Quariaqus. 4. Mr Quariaqus and Mr Mansour were kept under police surveillance as they subsequently left the motel in a yellow Ford. Later that evening, police stopped that vehicle in the Goulburn area. 413.1 grams of methylamphetamine was found wrapped inside bags in the vehicle. A search of the motel room revealed a broken drug pipe which, on the Crown case, had been used to sample the drug prior to the supply. 5. At the trial it was in issue whether the driver of the Maloo was the appellant, and whether it was he whose voice could be heard in the relevant telephone conversations with Mr Darwiche. There was circumstantial evidence connecting him with the vehicle. Importantly, however, the Crown relied upon the visual and aural identification of the appellant by his estranged wife, Illianna Ibrahim, who had viewed the video surveillance footage and listened to recordings of the relevant phone conversations. Ms Ibrahim's evidence is the primary focus of the appeal. 6. Hugo Jacobs is a name which the appellant has assumed. He was previously known as Hashem Ibrahim, and it was that surname by which his wife was known after their marriage. Ms Ibrahim did not know him at the time of the offence. They met in February 2009 and married in May of that year. It is apparent from answers she gave in cross-examination that the relationship was a turbulent one, and they separated early in October 2010. It was towards the end of the following month, shortly before the trial, that she provided police with her visual and aural identification of him. 7. As to the visual identification, her evidence was that she recognised the driver of the green Maloo in the surveillance footage as the appellant. She added that she recognised his gait, the pants he was wearing, his sunglasses and the clutch bag he was carrying. She also said that she recognised the vehicle as his. The reliability of this evidence was tested at some length in cross-examination. 8. More importantly, however, it was put to her that she was giving evidence "wishing to take revenge" on the appellant arising from their separation. That question was put specifically in relation to her aural identification but, presumably, it was not intended to be confined to that aspect of her evidence. Later in cross-examination, again in relation to the aural identification, it was put to her that she had identified passages in the intercepted conversations as being in the appellant's voice irrespective of what she was actually hearing. These allegations, of course, she denied. 9. No doubt, the cross-examination on this aspect focused upon her aural identification because her evidence about that was either truthful or it was not, whereas the video footage was such that her visual identification was open to error. However, in his final address to the jury, trial counsel for the appellant (who did not appear in this court) made it plain enough that he challenged the honesty of her evidence of identification generally, asserting that it was the product of bias and prejudice. 10. The appellant did not give evidence. He relied upon a critical analysis of the Crown case by his counsel. 11. There are 10 grounds of appeal. The first two challenge the admissibility of Ms Ibrahim's visual and aural identification. Grounds 3 - 7 relate to the manner in which Ms Ibrahim gave her evidence at the trial. Grounds 8 and 9 are concerned with the opinion evidence of one of the investigating detectives about the meaning of certain expressions used in the intercepted phone conversations. Ground 10 asserts that fresh evidence obtained since the trial bearing on the credibility of Ms Ibrahim demonstrates that there has been a miscarriage of justice. It is convenient to deal with that last ground first.