Afacan v R [2014] NSWCCA 203

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Afacan v R [2014] NSWCCA 203 Hearing dates: 04/08/2014 Decision date: 03 October 2014 Before: Hoeben CJ at CL at [1] McCallum J at [54] Bellew J at [55] Decision: Leave to appeal granted Appeal dismissed. Catchwords: CRIMINAL LAW - conviction appeal - detain with intention of obtaining an advantage - victim claimed to be detained in motor vehicle - victim escaped from motor vehicle and sought help from bystanders - substantial corroboration of victim's evidence provided by CCTV - bad character of victim - inconsistencies in victim's evidence - whether verdict unreasonable - advantage of jury - objective corroboration - appeal dismissed. Legislation Cited: Crimes Act 1900 - s86(2)(a) Cases Cited: SKA v R [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Yunus Afacan - Applicant Regina - Respondent Crown Representation: Counsel: Mr D O'Neil - Applicant Ms N Williams - Respondent Crown Solicitors: Mark Klees & Associates - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/45069 Decision under appeal Date of Decision: 2013-05-06 00:00:00 Before: Letherbarrow SC DCJ File Number(s): 2012/45069

Judgment 1HOEBEN CJ at CL: Offence On 22 April 2013 the applicant, together with a co-accused Michael Francis Tavares, pleaded not guilty before his Honour Judge Letherbarrow SC and a jury to the following offence: That they on 17 October 2011 at Canley Heights and elsewhere in the State of New South Wales did detain John Tjahjono without his consent and with the intention of obtaining an advantage, namely a sum of money and in circumstances of aggravation in that they were in company, contrary to s86(2)(a) of the Crimes Act 1900. 2On 6 May 2013 the jury found the applicant and the co-accused guilty of this offence. The applicant seeks leave of the Court to appeal from that conviction on the basis that the verdict is unreasonable and cannot be supported having regard to the evidence. 3The applicant was sentenced on 24 July 2013 to a 2 year intensive correction order. There is no appeal against sentence. The appeal is against the conviction alone. Crown case and evidence at trial 4The Crown case was as follows: The victim was a 60 year old Indonesian man who had lived in Melbourne since 1976. He had previously had a serious car accident and suffered brain damage, lost his job and marriage and developed a gambling problem. He had started to use ice to help him deal with his depression. 5About two years before the offence, the victim met Mr Gurgelgi and the applicant through mutual friends. Through his connection with Mr Gurgelgi the victim travelled to Sydney and met a person known as "Diddy" who suggested that the victim supply ice for him in Melbourne. Mr Gurgelgi was also interested in supplying ice for Diddy in Melbourne. 6In October 2011 the victim's endeavours in supplying ice in Melbourne for Diddy ended badly. He did not secure enough payment for one deal of ice, he used some of the drug for his own consumption and he used proceeds of the collective sales to gamble. 7Shortly before the date of the offence, the victim ended up owing Diddy and his supplier (known as "Tiger") the sum of $30,000 which he could not pay. Both Diddy and Tiger were Sydney based suppliers of ice to the victim. 8On 15 October 2011 the applicant and Mr Gurgelgi asked the victim to travel to Sydney with them to settle the debt with his Sydney based supplier (Tiger). About three hours later, in the early hours of 16 October, the applicant and Mr Gurgelgi arrived at the victim's home in a hired yellow Holden Commodore and they left to drive to Sydney. The vehicle had been hired by the co-offender, Michael Tavares, who shared the driving with the applicant. 9The group arrived at a hotel in the Sydney CBD in the early afternoon. This was captured on CCTV. At about 4pm they travelled to Cabramatta to meet up with Diddy and Tiger in the car-park. This meeting was also captured on CCTV. 10Tiger spoke to the victim about the outstanding debt, he threw away the victim's mobile telephone and threatened to cut off a finger for every $5000 which remained unpaid. Tiger gave him three weeks to pay up. After this meeting, the victim confessed to feeling relieved that he had secured some extra time to pay the debt. 11After the meeting at Cabramatta the applicant, Mr Gurgelgi and the victim returned to the hotel where they stayed the night. The group checked out of the hotel the next morning. They regrouped a few hours later when the applicant and the co-offender returned to pick up the victim at about 3pm. The victim got into the rear seat with Mr Gurgelgi. The co-offender was driving and the applicant was in the front passenger seat. About five minutes into the trip, the applicant started to demand money from the victim. The applicant was unhappy. He punched his window and screamed at the victim demanding money. 12When the victim told him that he did not have any money, the applicant told him to get it from his family nominating his daughter. The applicant told him that if he did not get the money, he would not be going back to Melbourne. Mr Gurgelgi threatened him and said that he knew where his daughter lived. 13The victim felt scared. He heard the central locking system click and Mr Gurgelgi told him that he was not getting out of the car. He wanted to get out of the car but the doors were locked. The applicant and Mr Gurgelgi wanted $10,000. Mr Gurgelgi said that if he did not give it to them, he would shoot him in the leg. 14At about 4.10pm the vehicle was driven into a Caltex service station at Canley Heights. The applicant, the co-offender and Mr Gurgelgi exited the vehicle at various times to refuel and go into the shop. 15After waiting a few minutes, the victim opened the car door and ran off towards the Canley Vale shops. The applicant and the two others saw this and immediately pursued him. Most of this was caught on CCTV. 16The victim sought aid from staff at a Chinese restaurant where he ran to hide from his pursuers in the toilet. He asked them to call triple 0 but they refused. He continued running and sought help from another café owner who did call triple 0 on his behalf. He was chased by his pursuers. The victim spoke to the triple 0 operator and said that he was scared as he was being chased. 17Two bystanders witnessed the victim being chased and gave evidence as to seeing him being pursued by men in a car. One of the bystanders said that the victim asked for help as "those guys were after him". 18An important part of the Crown case was CCTV footage which the Crown submitted supported parts of its case. In summary, the CCTV footage showed the following: (1)The hotel lobby showing the victim, Mr Gurgelgi, the applicant and the co-accused. (2)Footage from the Cabramatta car-park depicting the victim, Tiger and other unknown persons in which: (a)Tiger gave Mr Gurgelgi a hug. (b)The applicant and the co-accused were shown. (c)Tiger went out of view wherein the victim commented that he threw the mobile telephone onto a nearby roof. (d)Tiger gesturing to the victim which was said to be him saying "You better pay". (3)Footage from the Amora Hotel reception depicting the applicant carrying a white bag together with the victim and the co-accused. (4)Footage from outside that Hotel showing: (a)The same three people outside the Hotel approaching a yellow car. (b)The victim standing to the rear of the driver side passenger door. (c)Mr Gurgelgi walking towards the boot of the car from the lobby area. (5)Footage from the Caltex service station showing: (a)Mr Gurgelgi get out of the car. (b)The co-accused get out of the driver's door. (c)The applicant get out of the car. (d)The co-accused re-enter the driver's door. (e)The co-accused walk into the service station shop. (f)A police officer follow the co-accused into the shop. (g)The applicant enter the shop. (h)Mr Gurgelgi enter the shop. (i)The victim get out of the car. (j)The victim running. (k)Mr Gurgelgi running. (l)The victim approaching someone (whom he said he asked to call triple 0 but that person kept walking not saying anything); and (m)The victim coming into the restaurant. 19The CCTV footage from the Chinese restaurant showed the co-accused entering. The victim did not see that because he was hiding in the toilet. Defence case 20Neither the applicant nor the co-offender gave evidence. The applicant did participate in an ERISP. In the ERISP he denied kidnapping the victim and insisted that he was just trying to assist him by going to Sydney to help him sort out his drug debt with Tiger. 21An analysis of the ERISP shows a rambling explanation of events, including an account of the police arriving at the scene and arresting the co-offender. At that point the applicant and Mr Gurgelgi ran away and waited a few hours. He said that he thought that when his co-offender explained everything to the police they would know that they were good guys and they would let him (the co-offender) go so that they could return to Melbourne. When the co-offender did not return after several hours, he and Mr Gurgelgi jumped on a bus to go to Melbourne, effectively abandoning the hire car. 22In general the defence case depended upon the cross-examination of the victim and the identification of inconsistencies and contradictions in his evidence. The applicant's case was that the evidence of the victim was inherently dubious and internally inconsistent in a number of material respects. The applicant submitted that the Crown's case depended upon the jury accepting the victim's evidence but that it was so implausible as to not be capable of being accepted. Challenges to the evidence of the victim 23In relation to the presence of a police officer in the service station shop the victim said that he wanted to try to escape at the time but the car door was still locked and he could not get out. He said that when he eventually realised that the door was not locked, the police officer had already left. 24The victim agreed that he entered into the arrangement with Diddy so that he could make some money. He agreed that he had sold ice for Diddy, that he had spent some of the proceeds of the sale and had used some of the ice for his own purposes. He was cross-examined as to contradictions in his evidence about his contact with Tiger. 25The victim was reluctant to agree that the applicant and his friends offered to go to Sydney with him in order to help him when talking to Tiger. The victim eventually agreed that he thought he would be safer with the applicant and his companions when he met Tiger. In the police interview, he said that when he returned to the car he told his friends he was happy with how the meeting turned out and he thanked them. In his evidence at trial he said that when he got back into the car, no-one said anything about helping him. 26He was cross-examined about whether it was possible for him to get out of the back seat of the car. That issue remained inconclusive. He was cross-examined to the effect that the back doors to the car were not locked whereas he maintained that on occasions they were locked but when he was at the Caltex service station he discovered that the doors were not locked. 27The victim agreed that at no time in the whole journey between the city and the service station did he ask for the car to stop so that he could get out. He said that he tried to get out a number of times but the door was locked. When he tried at the petrol station after sitting there for a couple of minutes, he discovered that the door was unlocked. 28The victim agreed that when he returned to his flat he told Mr Gurgelgi and the applicant that he had lost his money and now owed Diddy $30,000. He was aware that Tiger and others had come to Melbourne looking for him. They had been to his flat and spoken to his flatmate. The victim was the one who wanted to then go to Sydney to confront Tiger. He was scared that he might get hurt. He agreed that the applicant had offered to go with him to make sure that he would not get hurt, to protect him. He did not think that the applicant knew Diddy or Tiger. He agreed that in the trip to Sydney all his expenses were paid (i.e., car, fuel, hotel). He agreed that the applicant and co-accused remained in the car while he spoke with Tiger in the Cabramatta car-park, except for a very short period when they introduced themselves to Tiger and returned to the car. 29The victim agreed that he returned to the car and told the applicant and the co-accused that everything was all right because he had been given another three weeks. 30In summary, the applicant submitted that the narrative of events which the victim deposed to was implausible. He submitted that it made no sense for him to have helped the victim confront Tiger and Diddy so as to gain an extension of time for payment if he then intended to demand money from him. This was against a background of he and his friends having paid for the victim's trip to Sydney and being aware that he had no money. 31He submitted that the evidence as to the sequence and detail of events given by the victim was inconsistent with the CCTV footage. He submitted that the evidence of the victim was internally inconsistent and changed as he continued to give evidence. He submitted that the victim by reason of his disposition or otherwise was unable to provide a cogent version of events or provide responsive answers to propositions put to him throughout his evidence. 32Based on the implausibility of the victim's story as a whole, and the inconsistencies in his evidence, the applicant submitted that the jury's verdict could not be supported by the evidence and was unreasonable. Crown response to Applicant's submissions 33The Crown submitted that the key parts of the victims narrative were fully supported by the objective evidence. While there may have been some differences in peripheral detail, the Crown submitted that the victim was clear and emphatic when answering questions on important parts of the offence put to him in cross-examination. The Crown submitted that at no stage did the victim deviate from his evidence that he was detained against his will for a period of time in the car that afternoon by the applicant and Mr Gurgelgi, during which detention they made repeated threats to him. He was adamant that he escaped at the first opportunity which he perceived and ran some several hundred metres seeking help from bystanders. Those bystanders witnessed others pursuing him. Finally, he sought assistance of police with a triple 0 call. 34The Crown noted that the victim's credibility was attacked on the basis of his prior drug use, his gambling, his indebtedness to Diddy, his gambling binge at the Crown Casino, his drug dealing, his criminal history and a prior false statement to police in relation to a drug supply. He was cross-examined on these matters at length. The Crown submitted that the applicant freely admitted all of those matters. 35Although there was limited cross-examination of the applicant as to inconsistencies between his police statement and his sworn evidence at trial, the issues raised were very limited and peripheral to the key elements of the victim's evidence. 36The Crown submitted that exhibits G and H (being still photographs taken from the CCTV footage at the Caltex service station) provided strong support for the victim's evidence that when the police officer was in the shop, there was still one of either the applicant, Mr Gurgelgi or the co-offender near to the car. The Crown submitted that exhibit H and the CCTV footage (with time stamps) indicated that there were only seconds between when Mr Gurgelgi finished putting petrol in the vehicle and when he joined his co-offender inside the shop. It was at that point when all three of the offenders were inside the Caltex shop, that the victim escaped from the car. 37The Crown submitted that it was obvious from the CCTV footage that the applicant and his co-offenders all demonstrably reacted to the victim's flight from the vehicle by turning around, looking out towards the vehicle and simultaneously leaving the shop together. Within seconds the co-offender got into the vehicle and drove out of the service station in pursuit of the victim. The Crown submitted that this simultaneous and powerful reaction of the offenders to the flight of the victim provided compelling support to his evidence that he had been detained against his will in the vehicle. 38The Crown referred to CCTV footage, taken from a nearby hotel, which showed the victim on the footpath pursued by Mr Gurgelgi. A Google map, which was tendered in the proceedings, indicated that the distance between the hotel and the Pho Hing Restaurant was about 200 metres. It was over this relatively substantial distance that the victim was pursued by Mr Gurgelgi. 39The Crown relied upon the evidence of Mr Faale Vaotuua, who was standing outside the Pho Hing Restaurant on the afternoon of 17 October 2011 when he saw the victim running towards him. The victim asked for his help as two men were chasing him. Mr Vautuua saw the yellow vehicle and a male passenger call out to the victim words to the effect "Uncle, uncle come inside the car we can take you back". The victim went into the restaurant followed by the passengers from the vehicle and shortly after, the driver of the vehicle followed the others. Mr Vautuua heard the passenger tell the victim to come outside of the restaurant and repeatedly told him to get into the vehicle. The victim stayed inside. About five minutes later, the police arrived and arrested the co-offender, Tavares. 40Mr Paipa Lokeni was outside the Pho Hing Restaurant when he saw the victim run towards him and ask for his help as there were men after him. Mr Lokeni saw a vehicle approach and the driver and backseat passenger were calling out "Uncle, uncle come here". Mr Lokeni said that the victim was scared and hid behind them. Mr Lokeni described how the passengers' voices changed and became angrier when the victim would not go with them in the car. The passenger and the driver followed the victim into the restaurant who by this time had run towards the back of the restaurant calling out for help. 41When the first detective on the scene spoke to the victim he noticed that he appeared scared and dishevelled. The victim made immediate complaint to that police officer and made a formal police statement that day. 42The Crown relied upon the contents of the triple 0 call. The Crown noted that the call clearly indicated that the victim had entered the Canley Heights Corner Café and asked the owner to call the police. First the café owner spoke to the operator and then he passed the telephone over to the victim. The victim told the operator that he was scared and that he had been kidnapped. He was scared that the men were still coming for him. He said that he had been told to get money and the man's name was Yunis. He abandoned the call when he saw the two men come into the café. By that stage the police had arrived. Consideration 43The law in this area is now well settled. In SKA v R [2011] HCA 13; 243 CLR 400 the plurality (French CJ, Gummow and Kiefel JJ) said: "The task of the Court of Criminal Appeal 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'."" It is then necessary to apply those principles to the facts of this case. 44There were inconsistencies in the evidence given by the victim. I agree with the Crown, however, that on the essential elements of the offence there were few such inconsistencies. To the extent that there were inconsistencies they were, as the Crown submitted, in relation to relatively minor and peripheral matters. No complaint is made concerning the directions provided by the trial judge. The jury were directed appropriately as to the onus of proof and the standard of proof and were reminded that they had to assess the witnesses and decide whether they were telling the truth and whether their accounts were accurate. His Honour gave extensive and appropriate directions on circumstantial evidence and the drawing of inferences. 45His Honour gave a Murray type direction and clearly explained to the jury that in cases where the Crown relied essentially on the evidence of one person, such as in this case, it was important for the jury to exercise caution before they convicted an accused. The jury was directed that: "... unless you are satisfied beyond reasonable doubt that Mr Tjahjono is an honest, reliable, and accurate witness in the account he has given you, you cannot find the accused guilty." 46His Honour fairly summarised the case for both the Crown and the defence. He pointed out that it was the Crown case that despite his questionable background, the victim was an honest and accurate witness on the important issues relating to the offence and that this could be confirmed by the jury, taking into account the CCTV footage, the content of the triple 0 call and the eyewitness accounts. In summarising the defence case, his Honour noted that the applicant submitted that the victim was an unreliable, inaccurate and untruthful witness whom they would not accept. He reminded the jury that it was the defence case that the victim was a self-confessed drug user and dealer and had admitted lying to the police in the past. His Honour repeated that it was submitted by the defence that the applicant's evidence was unbelievable. 47On 3 May 2013 the jury sent out a note (MFI 6) which requested clarification of the single key witness direction. In response his Honour repeated the Murray direction and when counsel for the applicant queried the wording which his Honour had used, his Honour recalled the jury and redirected them again with a more detailed Murray direction. 48Accordingly, it could not be said that the jury were not fully aware of the necessity to carefully examine the reliability and honesty of the victim's evidence before they could convict the applicant. Insofar as the victim's evidence is concerned, the jury was in a far better position than this Court to assess his demeanour when responding to questions put in cross-examination. 49This Court is in a position to compare the evidence of the two eyewitnesses and the content of the triple 0 calls with the evidence of the victim. There is a high level of consistency in that evidence. I am satisfied on my reading of that evidence that it provides strong support for the proposition that the victim was genuinely afraid of the applicant and his companions and was seeking to escape from them. 50The most powerful evidence in the Crown case was the CCTV footage. This shows the victim escaping from the car and the immediate and dramatic reaction of the applicant and his companions to that event. The CCTV material shows the applicant and his companions suddenly turn to look outside the shop. It is clear from their expressions that they are surprised by something which they are looking at. The three of them then rush from the shop. It next shows the victim endeavouring to move away from the service station in order to escape the offenders. 51I am satisfied on the basis of that material, not only that the victim was genuinely afraid of the applicant and his companions, but that this fear was based on having been detained by them in the car and having been threatened by them unless he produced a sum of money. 52It follows that given the advantage which the jury had of seeing and hearing the victim give his evidence, coupled with my own assessment of the evidence of the bystanders, what was said in the triple 0 calls and what was shown in the CCTV footage, it was well open to the jury to be satisfied beyond a reasonable doubt as to the guilt of the applicant. 53The order which I propose is that leave to appeal be granted but that the appeal be dismissed. 54McCALLUM J: I have read the judgment of Hoeben CJ at CL in draft and have undertaken my own independent assessment of the evidence in the trial. I agree with the Chief Judge that it was well open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt. The evidence of Mr Tjahjono was open to criticism in a number of respects but ultimately provided an account of the kidnapping which was both coherent and plausible. His account drew compelling support from a number of independent sources, including the CCTV footage, which this Court has seen. As submitted on behalf of the Crown, the footage clearly shows a simultaneous, powerful reaction on the part of the three offenders to the victim's flight from the car at the petrol station. I have not been persuaded that the jury ought to have entertained a doubt as to the applicant's guilt. 55BELLEW J: I agree with Hoeben CJ at CL. I also agree with the additional observations of McCallum J.