District Court New South Wales Medium Neutral Citation: Warren Brent Landsman v R [2015] NSWDC 223 Hearing dates: 15 September 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal dismissed. Catchwords: Conviction appeal; circumstantial case; identification evidence Legislation Cited: Crimes Act 1900 (NSW) s 59 Criminal Procedure Act 1986 (NSW) s 133 Evidence Act 1995 (NSW) ss 38 and 165 Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v The Queen [2006] NSWCCA 244 Mohan v R [1967] 2 AC 187 R v Clough (1992) 28 NSWLR 396 R v Hillier (2007) 228 CLR 618 R v Phan (2001) 53 NSWLR 480 Category: Principal judgment Parties: Warren Brent Landsman (Appellant) Director of Public Prosecutions (Crown) Representation: Counsel: P Lange (Appellant) K Owens (Crown) Solicitors: Alexanders Lawyers (Appellant) Director of Public Prosecutions (Respondent) File Number(s): 11/347713 Publication restriction: Nil Judgment Introduction 1. The charges that are the subject of this appeal are two offences pursuant to s 59 of the Crimes Act 1900 (NSW) of assault occasioning actual bodily harm. The section provides as follows: "59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons." 1. There is no appeal in respect of the penalty imposed by the learned Magistrate. 2. The appellant was convicted by the learned Magistrate on 7 December 2012. The appeal was heard on 15 September 2015. The appeal is by way of a re‑hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court – see Charara v The Queen [2006] NSWCCA 244 per Mason P at [18]. 3. I have also had regard to the exhibits tendered in the Local Court, and I have read the remarks of the learned Magistrate in her judgment of 7 October 2012. I note that I am bound to observe the "natural limitations" where the appeal is conducted by reference to the documentary record – see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5] per Basten JA. The issue on the appeal 1. The principal issue on the appeal is whether the evidence supports the finding made by the learned Magistrate that the appellant had been identified beyond reasonable doubt as the offender. The determination of this issue requires a close consideration of the evidence of the two victims of the offences, namely, Mr O'Connor and Mr Dryburgh, and that of an independent witness, Mr Salem, together with certain CCTV footage which showed, at the relevant time of the offences, an associate of the appellant, Mr Abrams, walking along Victoria Street, Potts Point, with a person who is depicted wearing what appeared to be school uniform. Only part of that person and the uniform were shown in the CCTV footage. However, the Crown relies on other evidence, including photographs of the appellant taken earlier in the night in a hotel room, in a group photograph, before a function at a particular club, and photographs taken of the appellant and others at the club, to mount a circumstantial case to prove inferentially that the person depicted in the CCTV footage with Mr Abrams was the appellant. 2. It is the appellant's case that all of that evidence, together with evidence of telephone intercepts relied on by the Crown, fall short of proving, beyond reasonable doubt, that the offender was the appellant. 3. As there is no issue that the elements of both charges were made out beyond reasonable doubt, but for the identity of the offender, my consideration of the evidence is confined to that issue alone. Evidence as to the identity of the offender 1. Mr Kevin O'Connor was the victim of the offence pursuant to s 59(1) of the Crimes Act (Sequence 2). He gave evidence that he was with Mr Chris Dryburgh, and was walking along Victoria Street, Potts Point, when two men walking in the opposite direction approached them. Mr Dryburgh was on Mr O'Connor's right, and one of the men passed between himself and Mr Dryburgh. When asked to describe that man, he gave the following evidence: "A: About my height, maybe five eleven, six foot, probably had 10 or 15 kilos on me. Q: And how much do you weigh? A: I weigh 78. Q: Seventy eight, so 10 or 15, Ninety-eight to 93 or so kilos? A: Yes. Q: Sorry, 88 to 93. And what else did you describe him as? A: Brown surfy hair, a style of haircut. On the night he was wearing school clothes, like a white school t-shirt and some old school pants. Q: Do you recall the colour of the pants? A: Grey. Q: Anything else? A: White Australian ethnicity. Q: Yes. Can you recall how old he was, approximately? A: Twenty to 24. Q: Is there anything else you can recall about that male? A: No. Q: You said a white school t-shirt, what do you mean by t-shirt? A: A button-up collared shirt. Q: Mmm –hmm and the sleeves on that, can you describe them to the court? A: Short sleeve." 1. Mr O'Connor gave evidence that as the man who he had described as "male one", passed between himself and Mr Dryburgh, he bumped his left shoulder into Chris's left shoulder, forcing him to turn. Mr Dryburgh was in the process of saying "Oh sorry, mate", or "Come on", and the other man walked a few steps passed them, approximately two and half metres. He gave this evidence: "Q: And what's happened then? A: Male one turned, took a couple of steps towards Chris. He threw an overhand right hook." 1. That blow hit Mr Dryburgh around the temple region and the top of the jaw. When asked what happened next, Mr O'Connor stated: "A: I saw Chris's eyes roll in the back of his head. Q: Mmm-hmm? A: I knew he was knocked out. Chris went stiff and fell to his right-hand side where there was a "no standing" traffic sign on the side of the road. Chris's hit the right side of his head up around the ear. Q: And what's happened then? A: My interest was in no way towards the gentleman who had hit Chris. I just wanted to pick Chris up off the ground cause I knew he was in trouble. I went to step forward, leant down to grab Chris by his shoulders to hold him. Q: What happened then? A: And then I'm unaware of what happened next. I – the next thing I remember was waking up to a police officer standing me up with his hands on both my shoulders, holding me upright." 1. In cross-examination, Mr O'Connor confirmed his description of the person referred to as male one. He gave the following evidence: "Q: You were able to get a good look at him at that stage and his build? A: That's correct. Q: You've told us he had a surfy-style haircut. Can you describe what you mean by that? A: Just maybe some wax or gel, scruffy hair. Bit like mine but longer. Q: Were there any other features that stood out about male one? A: No, apart from his stature and dress. Q: Did he have any tattoos, for instance? A: Not that I was aware. Q: Any piercings? A: No, couldn't see." 1. Mr Christopher Dryburgh gave evidence he was walking on Victoria Street with Mr O'Connor when he saw two people approaching them. He stated: "I didn't take notice of what they looked like." 1. He gave the following further evidence: "A: And I didn't really take much of their stature or anything like that, but they were both definitely white males and I'm not sure if the shorter one was closer to the road or closer to the shopfront, or anything like that. Q: Okay, so you can't recall that. Apart from them being white males, can you recall anything else about them? A: Dark hair but that's all. Q: And in terms of clothing, can you recall anything at all? A: No, I can't. I wasn't – yeah I wasn't looking and taking notice." 1. Mr Dryburgh gave evidence that, having been pushed on the left shoulder, he turned around to apologise and then was hit on the left side of his jaw. 2. In cross-examination, Mr Dryburgh gave the following evidence: "Q: Mr Dryburgh, you've given some evidence about the relative heights of the two men, relative to yourself. Are you able to give some information about their build relative to your build? A: Well, nothing really stood out, so I can't probably give anything as too substantial, but I would say one seemed to me to be shorter and probably a bit bigger than myself and I'm not sure of the other one. Maybe my build on the other one or something like that. Q: When you say a bit bigger than yourself, are you referring to muscly? A: Maybe, a bit stockier. Q: I think you've told us they had dark hair. Would I be right in saying that you have dark hair yourself? A: That's correct. Q: And that was similar to the hair of these two people? A: In the night's light, yeah, that's correct. Q: Did you actually see the men when you turned around in response to the bump? A: Yeah, yeah, they were facing me but I couldn't tell any of their facial features or anything in the night's light. Q: Did you see what the person who was a metre away from you do? A: No, I didn't. I just felt the punch." 1. Detective Senior Constable Paul Apthorpe gave evidence that on 22 February 2012, he met Mr O'Connor at the Dee Why police station where he conducted a photo board presentation on a computer. At the conclusion of that presentation, Mr O'Connor said to him "Image 1 stood out to me, but the more I looked at it, the more I was puzzled." Image 1 was not a photo of the appellant. Whilst printing the viewing report, Mr O'Connor indicated another person, being photograph number 3, by pointing to the computer screen and saying words to the effect, "Number 3 was also playing on my mind, I couldn't leave here today without saying that." Photo number 3 was a photo of the appellant. Mr O'Connor then signed the identification form indicating photographs 1 and 3. 2. Mr O'Connor was recalled to give evidence about that presentation. He corroborated Detective Senior Constable Apthorpe's evidence. 3. In cross-examination, Mr O'Connor confirmed that in response to the question "Have you seen any of these persons under any circumstances?" contained on the identification form, he had answered "No, Image 1 had stood out at me immediately but the more I looked at it the more I was puzzled." He agreed that he did not say anything when Image number 3 showed up on the screen and that he completed the form without mentioning number 3. He was then asked: "Q: It was only later on that you spoke to the officer about number 3? A: That's correct. Q: You said something along the lines of you didn't want to leave without mentioning number 3? A: Yes. Q: The reason why you mentioned number 3 is because you weren't certain, is that right? A: Three stood out to me. Of the two I selected, the other 18, I almost immediately clicked next to – I wasn't 100% sure. Q: And because you weren't 100% sure, you thought you best tell the officer that maybe it could be number 3, maybe it could be number 1, is that right? A: That's correct." 1. In re-examination, Mr O'Connor was asked: "Q: In relation to number 1 and you said that number 3 also had surfy type hair. Was there anything else about number 3 that stood out to you? A: Three had, if only the slightest, a longer style of surfy hair, which from the night I remember, and three was bigger in stature facially as well, rounder face, bigger jawline and broader shoulders." 1. Mr Elsayd Salem was walking in Victoria Street at approximately 10.50pm on Saturday, 7 May 2011. He was walking from south to north on the footpath between the Holiday Inn Hotel and Kings Cross train station. He was 25 metres from the Kings Cross railway station entrance when he observed, what he described as "two couple of guys" facing each other, talking or arguing about something. He was walking towards them when one of them ran towards the other two, at the north side, and punched both of the other men very quickly. Mr Salem said that the men were 15-20 metres away from each other. He was asked: "Q: He did what? A: Punched, hit both of the— Q: Punched I think, okay yes? A: Punched, yeah, punched both of the guys on the face in a – in a second punch, sorry, it's very quick punch for each one. Both of the guys fallen down on the street, he run towards the other side, he picked up his mate and just keep running up the street." (sic) 1. Mr Salem stated that one of the males punched both of the other two. He was asked: "Q: How far away were you from what you observed at that time? A: I was walking and by the time he punched both of them I was just in between both of the two groups. Q: So you say in between, could you pick an object in the court, how close were you when he punched the second male? A: Like the second, the two males been punched, they were a bit further towards this table (estimated to be 10 metres)." 1. Mr Salem gave evidence that the man who punched the other two ran away with his mate. He was asked: "Q: Yes, how far away from you was he? A: He just run next to me. Q: Just run next to you? A: Yeah because I – we were at the same footpath. Q: Was his front, left, right, back, which direction was facing you? A: No, he was on my left, he was running the other side, the other direction. Q: And which part of him could you see, if anything? A: It would be his left part. Q: Were you able to see the front of him? A: Yeah of course I can see front of him when he runs towards me. Q: How long were you able to see him for? A: That for a few moment. Q: Can you describe that male to the court. A: I would say he is about early 20's of age, he was a bit shorter than me, I was 180 so I would say he's a bit over 170 centimetre. Q: Okay? A: Okay, he I would say he was wearing uniform like I've seen a few guys as I said they were wearing the same uniform at that time. It's like a party uniform. Q: What would you describe that uniform as? A: Grey shorts, ties, very tiny ties like dark ties, dark grey tie or something and a – a shirt, buttoned shirt, has a lot of. Q: What coloured shirt was it? A: It's – it's not a plain shirt, it's I don't know what you would call it, it's like intersection lines, okay. Q: How would you describe that male's build? A: Caucasian, a bit shorter than me, short hair, he had something blurry in his ears. Q: Jewellery in his ear? A: Yeah, something blurry. Q: You pointed at your left ear, is it the left ear that you saw? A: Yeah I think it's a – it's – I think it's the left ear because it was just next to me, like a very small diamond or something. Q: What did you see when he came past you, why would you say he had a diamond in his ear? A: Yeah, just a small diamond on his ear, that's it, yeah, something like a small blurry diamond, piece of stone or something. Q: Can you describe his hair? A: Short hair, short black hair." 1. Mr Salem then described the man's friend as wearing "just normal clothing" and not wearing the same uniform. A diagram of the scene drawn by Mr Salem was tendered as Ex 24. 2. In cross-examination, Mr Salem was asked about the party outfit. He gave the following evidence: "Q: But on that particular night you saw, could you estimate how many people in this party outfit? A: No I have seen a few of them in the same area. Q: Can you estimate how many other men you saw in uniform? A: I saw the same uniform, I can't give you a figure … yeah I saw a few bunch of guys." 1. Mr Salem was then cross-examined about the shirt the offender was wearing that had intersecting lines. He described it as a "half sleeves shirt" and that he was wearing grey shorts and a tiny grey tie. He agreed that he had told the police that the man had been wearing a grey or dark blue shirt. He was asked: "Q: And when the other man came running, that is the one who punched the victims, he collected his friend from behind you? A: Yeah that's correct. Q: Now as the man who punched the victims ran past you, could you see whether his face was cleanly shaven or not? A: Which one sir again? Q: The man who punched the two victims? A: Yeah. Q: He was cleanly shaven, was he not? A: He was shaven, yeah, no beard, nothing at all. Q: And no stubble either, he was cleanly shaven you say? A: Yeah, clean shaven, yeah." 1. In re-examination, Mr Salem confirmed that the shorts were grey shorts and the tie was a tiny tie in a dark colour. He was pretty sure that the shirt was not plain and it had intersecting lines. 2. Mr Terrence Abrams was called by the Crown, who was given leave pursuant to s 38 of the Evidence Act 1995 (NSW), to cross-examine him. He had attended the birthday party of Sammy Tajjour's on Saturday, 7 May 2011 at the Tunnel Nightclub at Kings Cross. The CCTV video evidence from City Rail taken from a camera located outside the Kings Cross railway station entrance, became Ex 11. Mr Abrams identified himself in that film walking past the train station. He was asked: "Q: Do you recall who you were with at that time? A: No. Q: Can you see from the footage that there's a shoe walking along parallel next to you, did you see that? A: No I didn't see that." 1. When the video was replayed, Mr Abrams agreed that he saw that shoe. He was asked: "Q: Are you able to tell the court who that person is? A: No." 1. Mr Abrams gave evidence that he was intoxicated at that time, namely, approximately 11pm. 2. In answer to the questions from the Crown, Mr Abrams said that when he was very highly affected by alcohol he would be "incoherent, slurred speech, maybe memory loss", and sometimes "find it hard to stand up". It had taken 20 plus drinks to get like that. 3. Mr Abrams agreed that he was shown in the CCTV footage walking in a very straight line and he did not appear to be wobbling at all. He said he was usually good with his coordination and agreed that he was shown moving quickly in the CCTV evidence. Notwithstanding that, he told the court that he was very intoxicated at the time. His explanation was that his coordination was usually "the last thing to go". His memory was "one of the first". 4. Mr Abrams was studying engineering at the University of Sydney and agreed that he required a good memory for that. He was tested about his memory, for example, how he got home by way of a taxi and he stated "I don't forget my street address." He was then asked: "Q: But you just forget everything else that happened during the evening? A: Not everything. Q: So what do you remember? A: On that night? Q: Yes, on that night. A: I was just around Kings Cross, I remember being in the Tunnel Nightclub and that's it. Q: Who were you with at all on that night? A: There were quite a large group of boys. Q: Warren with them? A: In the club? Q: On that night was Warren in that party? A: Yes. Q: You would have spent time with Warren that night wouldn't you? A: Yes, in the club. Q: It's certainly not out of the question that you'd have gone somewhere with Warren, is it? A: I don't remember going anywhere with Warren. Q: But you are very good friends with Warren, aren't you? A: Yes, I said that before. Q: You didn't call him that night before 11 o'clock? A: I don't know." 1. Mr Abrams was questioned by the Crown in relation to the transcripts of phone calls contained in Ex 35. When asked about an entry which included him saying the words "don't hit me", he responded "we fight all the time". 2. It was put to Mr Abrams that it was Mr Landsman who was walking next to him in the CCTV footage. He answered: "A: I don't know who it is. Q: And the reason that walked up and then back, and up again, is because there was a little confrontation, gone to walk away, something was said, and Mr Landsman has then walked back and attacked someone, what do you say about that? A: I don't remember that. Q: You don't remember that, so that didn't happen, or you just don't recall it? A: I don't recall. Q: As you said, you're very good friends with Mr Landsman? A: I am. Q: And you'd do anything for him, that's right isn't it? A: I didn't say that. Q: No, I'm putting it to you that you'd do anything for him? A: No I wouldn't. Q: But you've known him for 10 years? A: We're good mates." 1. In cross-examination by counsel for the appellant, Mr Abrams was asked: "Q: Mr Abrams, I understand that your memory on the night is not very good, but perhaps you can tell us this if you recall, do you remember how many people attended the birthday party? A: I remember the club was pretty full, I don't know for certain though. Q: Do you know how many of those people would have been, or what percentage of those people would have been attached to the party, Sammy Tajjour's party? A: I think a large portion. Q: Were you able to recall how many people you saw in uniform? A: Not certain, but 10, 20, 30." There was no re-examination. Other relevant evidence 1. When police examined the scene of the offences they located a pair of black rimmed glasses with white tape wound around the bridge. They were similar to glasses being worn in photographs of persons attending the party at the Tunnel Nightclub, for example, see Exs 15 and 25. 2. Exhibit 14 comprised five cropped screen shots taken from the City Rail CCTV on 7 May 2011, between 22:58:05 hours and 22:58.08 hours. They show the left hand side of a person taken from the rear. That person is wearing a white shirt with the left hand sleeve rolled up, dark coloured shorts, long white socks, and grey coloured sneakers. 3. Exhibit 20 was a comparison of a photograph obtained by police from social media of six men, taken outside the Holiday Inn, Victoria Street, Kings Cross on the evening of 7 May 2011. The appellant is identified in the front row, and a comparison is made between what he is wearing and the five cropped screen shots in Ex 14. A close up of his footwear demonstrates that he is wearing a Nike shoe of the same type depicted in Ex 14, namely, it has the same markings on the side and rear of the shoe. He is also shown to be wearing the same type of white shirt and white sock as depicted in Ex 14. The telephone intercepts 1. Exhibit 23 contained a number of telephone intercepts. The first, on 24 October 2011 at 9:48:04 hours, was between Mr Tajjour and the appellant. It contained the following: "ST: Yeah good Kings Cross police called me, bro ay. A: Yeah? ST: Um, about that fuckin' shit that happened with you. A: About what? ST: About you know that shit at my birthday? Anyways um, remember my birthday? A: Um. ST: Yeah. Anyways, doesn't matter. A: Yeah. ST: Um they're questioning me (unintelligible) I told them I know my mate, he goes 'Who was, who was there'? I just told my close friends, like I didn't mention, um, you or Jase. ST: … to the boys, I said, 'Don't say nothing, you don't know, ah, ah, you don't know, if they ask you, you just say everyone was there except these two. A: Yeah. ST: … you and Jase, ' … and you don't know who they are.' Like they're not, they don't know who you are but I told them not to mention your names cause they might then ask for your numbers, you know what I mean? A: You're a champion. ST: The guy's, the guy's pretty knocked up, bro. A: Really? ST: Yeah really bad. Apparently like face. A: Shit. ST: Face demented. A: Wow. Oh. ST: Yeah. But anyway, don't, don't worry about it, um, just, I told them, I don't know, like, just I told the boys, you know not to mention you and Jason's name anyways." 1. On 24 October 2011 at 12:48:17 hours, the following was detected on the appellant's phone: "A: (Speaking in background - ) yeah but still, if the guy needed surgery. And it was two on one. Still, I just want to be safe, rather safe than sorry." 1. On the same day at 21:21:41 hours, from the appellant's phone, the following SMS text was sent: "Hey bro, will you see if any 1 has pics of Sammy's and try to get them to take them down!!!" 1. The appellant received the following incoming text at 21:25:58 hours: "I will do anything for you! Message Sammy too! He will take from album! I'll do it tomorrow I'm not home ATM so got no computer but for sure tomoz nite!" 1. The appellant was arrested on 26 October 2011. At 12:43:24 hours the following telephone conversation took place between the appellant and Mr Tajjour: "A: Um what I was going to say, I don't think we should talk. ST: Ah anyways, doesn't matter. A: Yeah. ST: Um, oh, they came and seen me just now. A: You what? ST: Um, they came and seen me just now. A: Yeah. ST: Um, and they showed me some picture. A: Yeah. ST: And it was, it was, um, TJ. A: Yeah. ST: And I said ' Don't know, never seen him'. A: Okay. Really? So that was it? ST: Don't worry about that, yeah. Yeah, they, and they said, 'Alright, no worries', they go 'We won't ask you anymore, thanks a lot'. I go, 'Yeah, sweet'. A: Oh, lovely, mate, beautiful. ST: It was, yeah, so, don't worry, don't stress. A: Okay …" 1. On the same day, at 12:49:44 hours, the appellant spoke to Mr Abrams and said: "A: Hey, mate, look, I need Mickey Mouse to get rid of all the boys on FB. TA: What? A: I need Mickey Mouse to get rid of all the boys on FB as a matter of urgency. TA: Um, alright. Yeah. How the fuck would, how the fuck would we do that? A: I, I, I, I'll call you soon …" 1. At 12:54:30, the appellant spoke to Jason Simon. He stated: "A: Have ah, the, um, pigs tried to call you? JS: No, they didn't. They spoke to Sammy. A: Yeah, yeah, listen, if, um, they see you, or can you call Kirky and call um, ah, fatman, right? JS: Yeah. A: And if they ask, if they show you like any, any pictures, none of you, obviously, know who Mickey Mouse is, so yeah?" 1. On 27 October 2011 at 17:16:48 hours, the appellant spoke to Mr Abrams. During that conversation the following was said: "TA: Relax, bro, don't hit me, please. A: Oh, fuck off, bro. TA: Don't hit me, please, please. A: Well you know what happens – alright, bye." 1. At 18:21:00 hours the appellant again spoke to Mr Abrams, inter alia, the following was said: "A: I'm getting fuckin' pumped and pumped. TA: Relax, sunshine. A: What did you cop it? TA: What? A: Did you cop it from your parents? TA: What did I do, I didn't fuckin' bash anyone. A: When you did your thing? TA: Oh, yeah, oh, please. A: Mate, I'm fuckin' coppin' it." 1. At 18:01:43, the appellant spoke to Mr Ricky Oshry. During that phone call the following was said: "A: I've gotta get out of here, I'm in the middle of a fuckin' war zone at home, I'm getting fuckin' shot. RO: Oh, really? Is your dad home? A: Yeah, he came up, like I, like I fuckin' murdered someone, man, like I murdered someone. RO: Yeah. A: You know what he … I said, 'Don't' tell me you didn't fight?' I said 'You used to fight just as fuckin' much if not more than me when … times have changed, bro, are you telling me in 30 years that times have changed, man, that, that all guys have just settled down and stopped fighting?' RO: Yeah. Yeah, I know, bro, whatever. Like you, you had to expect some fuckin' backlash. A: Yeah, true. RO: They'll get over it." Other police investigations 1. The Crown relied on the call charge records of the appellant's mobile phone number. The evidence established that between 10pm and 11pm on 7 May 2011, two SMS text messages were sent. The last was sent at 10:54:40 hours. The CCTV evidence from City Rail showed the offence occurring at 10:58:30 and the next phone activity occurred at 11:07:19. The evidence established that between 23:07:00 and 23:19:00 hours, the appellant called Mr Jason Simon, Mr Ivan Oshry, Mr Ian Abrahams and Mr Brent Rosenberg. All calls and messages were sent from the phone via Kings Cross until just after 1pm the following day. 2. Detective Senior Constable Apthorpe gave evidence that on 24 October 2011, he obtained search warrants to search the residential premises of the appellant and a Mr George Nora (who the evidence established was a person with the nickname "Mickey Mouse"). At the home of the appellant, investigating police located two "Zara Man white, long-sleeved button-up" shirts and one pair of white socks with a blue emblem. Also located were eight pairs of Nike brand shoes. One of the shoes was a similar Airmax model to that shown in the CCTV footage, but it had different coloured markings. The two shirts were considered by police to be "too generic to be of substantial probative value". Similarly, the long white socks appeared to be a different pair due to some prominent blue stripes. 3. DNA testing of the Ray-Ban sunglasses and the white sticky tape did not match the DNA profile of the appellant. 4. A large number of photographs (over 400) were tendered by way of a DVD disk retrieved from Mr Nora's computer. Directions of law 1. The Crown bears the onus of proving both charges beyond reasonable doubt. As set out above, and as found by the learned Magistrate, all of the elements of the offence pursuant to s 59(1) of the Crimes Act have been established, but for the identity of the offender. The Crown case against the appellant is a circumstantial one based on the evidence set out above. 2. Section 133 of the Criminal Procedure Act 1986 (NSW) provides as follows: "133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 1. The first direction of law that I give myself is a direction required pursuant to s 165 of the Evidence Act. Relevantly, the section applies to evidence that may be unreliable, including identification evidence (s 165(1)(b)) and evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings (s 165(1)(d)). 2. I am mindful that the onus of proof remains at all times on the Crown to prove the charges beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference. Further, as identification is the principal issue in this matter, I have issued myself a warning pursuant to s 165(1) (b) and (d) of the Evidence Act, in coming to a determination in this matter. This warning applies to the evidence of Mr Abrams, which could be characterised as unreliable because of his friendship with the appellant. In giving evidence that he was so intoxicated as to have no memory of relevant events, he was downplaying his part and also giving false evidence as to the identity of the offender. He had a clear motive for doing so. I also bear in mind that there may be unknown motives, or motives which cannot be explored in cross-examination, for which Mr Abrams had to lie. I therefore need to exercise caution in determining whether to accept any part of the evidence of Terrence Abrams, and the weight to be given to it. 3. I further direct myself that the Crown relies on circumstantial evidence to establish the identity of the offender here. The Crown lacks direct evidence that the appellant was the offender. However, that does not mean that a circumstantial case is, for that reason, weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. 4. In a circumstantial case, no individual fact can prove the guilt of the appellant. In a circumstantial case, the court is to reason in a staged approach. The first stage is to find the basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the appellant because they do not establish the identity of the appellant. The second stage is then to infer or conclude, from a combination of those established facts that a further fact or facts existed. The ultimate fact that the Crown asks the court to find, is that the appellant is guilty of the offences charged. 5. Whether the circumstantial evidence proves the Crown case, will depend on whether, when considered as a whole, and not individually or in isolation, the basic facts establish the Crown case. It will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the appellant. It is important therefore that a circumstantial case is approached by considering and weighing, as a whole, all of the facts found established by the evidence. It is wrong to consider any fact in isolation and ask whether that fact proves the guilt of the appellant, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the guilt of the appellant. 6. When all of the facts have been considered as a whole, I must ask myself whether I can conclude from those facts that the appellant is guilty of the offences charges. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I would not be satisfied of guilt beyond reasonable doubt. Of course, it follows, that I must then find the appellant not guilty. 7. However, if I find that such a conclusion is a reasonable one to draw, based upon a combination of those established facts, then, before I can convict the appellant, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I would not be satisfied beyond reasonable doubt of the appellant's guilt. In R v Hillier (2007) 228 CLR 618, the plurality in the High Court said at [46]: "It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed, in deciding whether there is an inference consistent with innocence reasonably open on the evidence." 1. Drawing conclusions from a set of established facts, to find that another fact is proved, involves a logical and rational process of reasoning. I remind myself that any conclusion cannot be based on mere speculation, conjecture or supposition. Determination 1. The real issue on this appeal is whether the Crown has established beyond reasonable doubt that the appellant was the offender. There is no direct evidence of that fact. The Crown relies on a circumstantial case to establish the identity of the offender beyond reasonable doubt. 2. I am mindful that the appellant has the presumption of innocence in his favour and has not given evidence. The appellant is entitled to say nothing and make the Crown prove his guilt. The right to silence and the presumption of innocence mean that the appellant's election not to call evidence cannot be used against him. His election not to offer any explanation constitutes no admission by the appellant and no such inference must be drawn from that fact. Nor must such an election be used to fill the gaps in the evidence tendered by the Crown. 3. I find the following facts established on the evidence: 1. That on the night of 7 May 2011, the appellant, dressed in fancy dress, namely, school uniform of white shirt and tie, short grey pants, long white socks and a grey/blue colour Nike Airmax shoes, attended a function at the Tunnel Nightclub at Kings Cross. 2. An unknown number of male persons wearing similar, but not identical attire, attended the same function. 3. At the time of the offence, a person dressed in attire of the same description as worn by the appellant, was walking with Mr Terrence Abrams in a generally northerly direction along Victoria Street, Potts Point. That person was partly depicted on the CCTV footage evidence by his left hand side from the rear. That evidence does not reveal the identity of the person with Mr Abrams, however, that person was wearing the same shoes as the appellant was shown to be wearing in photographs taken earlier that evening. No other person in fancy dress of school uniform was shown to be wearing those shoes. 4. Just out of screen of the CCTV footage, shadows cast from lights demonstrate that Mr Abrams and his companion stopped a short distance north of the entrance to the Kings Cross railway station entrance. 5. Within a few seconds, Mr Abrams was seen to be heading away from the scene in a generally southerly direction at a fast pace. 6. Within 20 minutes of the offence, calls were made from the mobile phone of the appellant to four persons who were in attendance at the function at the Tunnel Nightclub. 7. Found at the scene were a pair of Ray-Ban sunglasses which were depicted in photos taken earlier, being worn by the patrons at the Tunnel Nightclub function. 8. At a photo identification process carried out by investigating police, a witness did not positively identify the appellant, but identified a photo of the appellant as giving rise to a concern. 9. More than five months after the offences, just before his arrest, the appellant received a phone call on 24 October 2011, from Mr Tajjour, whose birthday was being celebrated at the Tunnel Nightclub on the relevant night, advising that the appellant's identity had been kept from police investigating the offence. Recorded on the appellant's phone on the same day was a reference to an incident where "it was two on one", and he felt it better to be "safe than sorry". Text messages sent the same day were concerned with the removal of pictures from social media, known as Facebook. 10. Transcripts of other phone calls on the appellant's mobile phone, on the day of his arrest, again concern the removal of photographic evidence from a Facebook account of an associate of the appellant, of the function. 11. In a phone call on the following day, 27 October 2011 with Mr Abrams, in response to the appellant telling Mr Abrams that he was being "pumped" by his parents, Mr Abrams responded "I didn't fuckin' bash anyone". Minutes later, in a phone call to Mr Ricky Oshry, the appellant referred to his father treating him, "like I murdered someone", and he told Mr Oshry that he had said to his father: "Don't tell me you didn't fight. You used to fight just as fuckin' much if not more than me when … times have changed, bro, are you telling me in 30 years that times have changed, man, that, that all guys have just settled down and stopped fighting?" Mr Oshry then told the appellant that he had to expect some backlash. 1. Mr Salem, an independent eye-witness, gave a general description of the man he observed committing the offences. He identified that person as wearing, what he described as, "a party uniform", meaning grey shorts, very tiny dark tie, a button shirt and when asked to describe the jewellery he observed in the person's left ear, he said, "something blurry". He went on to describe that as "something like a small blurry diamond, piece of stone or something". Otherwise the man was described as being in his early 20's, a bit over 170 cm, and having short black hair. 2. The appellant was pictured with an eyebrow piercing above his left eyebrow on the night in question. 3. Mr Salem described the offender as being clean shaven, with no beard or stubble. He described the man's shirt as being grey or dark blue, with intersecting lines. 4. Mr Salem had seen a few people in the same area wearing the same uniform or "party outfit". He could not give an estimate of how many men he saw wearing that uniform, but said "I saw a few bunch of guys". 5. Mr Abrams gave false evidence when asked who he was walking next to in the CCTV footage, by answering "I don't know who it is". Mr Abrams was evasive in answering other direct questions as to what happened on that night, saying, "I don't recall". He also gave false evidence by saying he was so intoxicated he had no recollection of the events that took place on Victoria Street at approximately 11pm. 6. The content of the telephone intercepts, being calls and text messages referred to above, do not amount to an admission or admissions by the appellant as to his involvement in the offences. Rather, to the extent that they concern the destruction of evidence, or concealing his identity, they are consistent with a consciousness of guilt, and inconsistent with the contention that he was not the offender. That evidence does implicate him in an assault or assaults, and that the incident involved "two on one" and that it occurred on the night of Mr Tajjour's party and involved the appellant fighting. Those matters are circumstantial evidence which may be taken into account with all other evidence. 1. The appellant has relied on his good character, and I accept the fact that the appellant is a person of good character. I am entitled to take evidence that the appellant is of good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Warren Landsman is a person of good character is relevant to the likelihood of his having committed the offences alleged. I can take into account his good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. However, whether I do reason in that way is a matter for me. Good character does not provide Warren Landsman with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the appellant. I have taken the good character of the appellant into account. 2. Counsel for the appellant accepted that the appellant was wearing fancy dress on the night in question, but submitted that numerous other persons were also wearing similar dress, i.e. school clothes. Photographs revealed that there were at least eight other persons in school uniform on that particular evening. Counsel also submitted the descriptions given by Mr O'Connor and Mr Dryburgh of the assailant, were of little assistance in linking the appellant with the offences. Mr Salem was only able to describe the assailant as being in his "early twenties and a bit over 170 centimetres". He also described a shirt that the appellant was not wearing on that night. Counsel also referred to the evidence of Mr Salem concerning the assailant wearing jewellery in his left ear, and being clean shaven (see (12), (13) and (14) in [65] above). 3. Counsel for the appellant submitted that the evidence of Mr O'Connor concerning the photograph identification procedures was of no assistance. It was at the conclusion of that procedure that he had said, "Number 3 was also playing on my mind, I couldn't leave here today without saying that". This was described as "an afterthought, and made out of abundant caution, since he was not certain about the identity of the assailant." 4. Counsel further submitted that nothing in the telephone intercept material amounted to an admission against interest of the appellant. It was further submitted that if the court were ultimately satisfied that the appellant may have been in the vicinity of the incident, that was plainly insufficient to ground a conviction, in the absence of proof that he was the person who in fact assaulted the victims, relying on R v Phan (2001) 53 NSWLR 480. It was submitted that the evidence points to a person, other than the appellant, being the person who assaulted the two victims and therefore the appeal should be allowed. 5. Having considered all of the evidence and established facts as a whole, I have concluded that the offender, in respect of the two assaults on Mr Dryburgh and Mr O'Connor, was the appellant. I find that that conclusion is a reasonable one to draw based on a combination of the established facts. I further find that there is no other reasonable conclusion arising from those facts which is inconsistent with the guilt of the appellant. Whilst on their own, certain aspects of the evidence may be said to be inconsistent, for example, Mr Salem's evidence that the appellant was wearing jewellery in his ear, or was clean shaven, such identification evidence must be viewed in the context in which it was given, namely, following a violent attack at night, that took place in a very short space of time. That Mr Salem confused the appellant's eyebrow piercing with jewellery in his left ear, and described him as clean shaven, whereas photographic evidence demonstrated he had some stubble, are not, when combined with all the other evidence, determinative of the identity of the appellant. 6. The appellant's reliance on R v Phan, supra, is somewhat misconceived. That case concerned a murder conviction based on common enterprise where the Court of Criminal Appeal ordered a new trial after the jury had been incorrectly directed as to the elements of the offence. Where the Crown was unable to prove which of several persons, present at the scene of the crime, committed the particular act giving rise to the offence, but nevertheless was able to establish that each was assisting the other, the court held that the case should have been properly left to the jury as one of principal and accessory, following Mohan v R [1967] 2 AC 187 and R v Clough (1992) 28 NSWLR 396. Here, the presence of the appellant, to the extent that he is identified by his footwear and apparel in the CCTV footage, is relevant to placing him next to Mr Abrams, at the time and place where the assaults took place. 7. I do not accept the submissions made by counsel for the appellant that the assailants were walking uphill, in a southerly direction, towards the victims, who were walking downhill in a northerly direction, and therefore, the person depicted in the CCTV footage could not have been the appellant, nor do I accept the submission that the persons depicted in the CCTV footage were walking in "precisely the same direction as the victims". 8. Having regard to the whole of the evidence, as I am required to do, I am satisfied beyond reasonable doubt that the appellant was the offender. I am further satisfied that there is no other reasonable conclusion arising from the facts that is inconsistent with that conclusion. 9. All the elements of the offences have been established beyond reasonable doubt. I therefore dismiss the appeal. Order 1. I make the following order: 1. The appeal is dismissed. 2. I confirm the conviction of the appellant on both charges and the orders made by the learned Magistrate. ********** 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: 30 September 2015