Fainu v R

1. [1]

   LEEMING JA: Mr Manase Vehikite Am Fainu seeks leave to appeal from his conviction following a ten day trial in the District Court constituted by a judge and jury on an indictment containing a single count of wounding with intent to cause grievous bodily harm pursuant to s 33(1)(a) of the Crimes Act 1900 (NSW). The sole ground of appeal is that the jury’s verdict of guilty was unreasonable. Because that ground is not confined to a question of law within the meaning of s 5(1) of the Criminal Appeal Act 1912 (NSW), the appeal requires leave.

2. [2]

   There was no dispute as to the applicable principles. They were identified in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and confirmed in Dansie v The Queen [2022] HCA 25; 96 ALJR 728. In the latter decision the High Court observed at [8]:

3. [3]

   In answering that question, this Court must not disregard or discount the consideration that it is the jury which is the body entrusted with the primary responsibility of determining guilt and the consideration that the jury had the benefit of seeing and hearing the witnesses: M v The Queen at 493; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37].

Overview of the trial

1. [4]

   Despite the length of the trial, there was a deal of common ground as to the facts leading up to the offending. There was no dispute that five men – the applicant, Mr Uona Faingaa (also known as “Big Buck”), Mr Saimone Faingaa, Mr Pauli Maafu and Mr Tony Pahulu – attended a party at a church in Wattle Grove at about 11pm on 25 October 2019 and, after being asked to leave the premises, returned to the church carpark where at least some of them were involved in an altercation with people who had been attending the party, including the complainant Mr Faamanu Levi and his friends Mr Charlie Toilalo, Mr Kupi Toilalo and Mr Tony Quach. In what follows, I shall for concision and clarity, and without conveying any informality or disrespect, follow the course adopted in the Crown’s submissions and refer to the main witnesses by the name or nickname by which they were most commonly referred to in the evidence, namely, “Levi”, “Charlie”, “Kupi”, and “Mr Quach”.

2. [5]

   There was no dispute that there was first an altercation and then a melee involving the two groups, much of which took place between two parked cars in the church carpark. There was no dispute that this took place in a matter of a few minutes. There was no dispute that Levi sustained a knife wound in his back, under his right shoulder, which penetrated into the chest cavity causing his lung to collapse and resulting in internal bleeding. Levi also sustained a cut above his right eyebrow. There is no dispute that the applicant and his four friends thereafter left the carpark.

3. [6]

   The church carpark adjoined the loading dock of a Coles supermarket. The church carpark and the loading dock were separated by a fence. Bollards placed around what appears to be a fire hydrant near one part of the fence made it relatively easy for the applicant and his four friends to climb over the fence from the Coles loading dock into the church carpark. CCTV footage shows a silver Kluger arriving at the Coles carpark at around 10.35pm (there was a nine minute error in the timestamp on the footage but all times stated in these reasons are references to real time, not the time stamped on the footage). The applicant accepted he drove the vehicle. The applicant and each of his four friends left the vehicle, and CCTV footage some 45 minutes later shows them returning to the Coles carpark, from which they are then shown climbing over the fence separating the properties. The applicant climbed over at 11.22pm, with three of his friends following him shortly thereafter, and the last man waiting until 11.27pm before jumping over. (It seems likely that the fifth man jumped over the fence when the altercation in the church carpark turned into a melee, but nothing turns on whether or not that is so.) Commencing at 11.30pm all five men are seen on the CCTV footage jumping back over the fence returning to the Coles loading dock. They returned to the vehicle in the Coles carpark and drove away. Both times, it was the applicant who was the first over the fence. The applicant is seen wearing a white towel around his head; in his evidence at trial, he said it was “like a security blanket”, and he used it because he had a headache that evening.

4. [7]

   The CCTV footage also clearly shows the applicant with his left arm in a sling. He continued to wear the sling as he climbed over the fence into the church carpark, and a few minutes later he threw the sling over the fence so as to help himself climb back over into the Coles loading dock.

5. [8]

   A call to triple zero was made at around 11.36pm from a handset belonging to Charlie, with a second triple zero call being placed at around 11.39pm from a different handset. Police officers arrived at 11.42pm, and an ambulance arrived at 11.47pm.

6. [9]

   Levi gave evidence but could not identify who had stabbed him in the back. However, two witnesses, Mr Quach and Kupi, each said they saw a man whose left arm was in a sling holding a knife. One of them, Mr Quach, said he saw the applicant stab Levi; Kupi said that he did not himself see the stabbing. According to the applicant, the entirety of this appeal amounts to a single question: was the jury entitled to accept the evidence of Mr Quach so as to establish to the criminal standard that the applicant stabbed Levi.

7. [10]

   The applicant gave an account which did not see him participating in the melee at all. He denied driving the silver Kluger into the Coles carpark before he and his friends attended the church and were asked to leave, and instead said that he had first parked the car on the street in front of the church while his friends attended the church party. However, the CCTV footage shows the vehicle arriving in the Coles carpark 45 minutes before the men climbed over the fence. He said he jumped the fence because it was quicker than going through the front gate. He said that he was not involved in the fight, and watched for a minute or two and then ran away because he was scared for himself. He repeatedly denied wearing a black hat underneath his towel, although he conceded at the conclusion of his cross-examination that he had done just that. He denied wearing the towel over his head so as to hide his identity. He denied stabbing Levi, or having a knife.

8. [11]

   It is not necessary to summarise the entire account given by the applicant. Consistently with the verdict, the jury must have rejected it. No attempt was made in the appeal to attack the jury’s verdict by reference to the applicant’s own evidence, as opposed to the claimed unreliability of Mr Quach.

9. [12]

   Instead, the entirety of the applicant’s submissions in this appeal, which was well argued on both sides, involved casting doubt on Mr Quach’s recollection. By way of overview, it was said that “[a]n examination of Mr Quach’s evidence in the light of other evidence given by eyewitnesses, casts significant doubt on the reliability of Mr Quach’s account”. Or, as it was put orally, “the burden of the appeal is that the evidence of Mr Quach was so inadequate that it was not open to the jury to convict the applicant”.

The applicant’s submissions

1. [13]

   Although the ultimate question is whether upon the whole of the evidence it was open to the jury to return a guilty verdict, it is neither necessary nor appropriate to summarise the entirety of a trial which occupied some ten days. What matters is the evidence insofar as is necessary to address the submissions advanced by the applicant and the Crown. In what follows, I shall reproduce sufficient of the evidence in order to expose the entirety of the applicant’s submissions in support of his single ground of appeal.

2. [14]

   First, and most prominent in the oral submissions, were exhibits A and 7, each of which purported, according to the applicant, to show the locations of the various men when the knife was first seen. Exhibit A was made by Kupi and exhibit 7 was made by Mr Quach. Both documents identified two parked cars and placed four men between the cars. Exhibit A did not identify Levi at all. Exhibit A indicated the passenger side door of the right hand car open, with “second guy” and “big guy” both on the bonnet side of the gap between the two cars, and with “Kupi” and “Charlie” on the other side of the door, “Guy with knife” behind them, and “TONY” further behind them. Exhibit 7 identified four men between the cars: “BG” (or Big Guy), Levi, “CT” (Charlie) and “TQ” (Mr Quach). On exhibit 7, Kupi was near the front bumper of both cars, with another marking of Mr Quach behind the left hand car near the man with the knife, and “MF” marking the applicant’s position away from the other men and behind the left hand car.

3. [15]

   It was said that a “critical defect in Mr Quach’s evidence is the relative positioning of persons at the time that the knife is first seen by any person”. Mr Quach said that when he heard Kupi mention a knife, he turned around and saw the knife-wielding man behind the vehicle. Kupi said that when he saw the knife, the knife-wielding man was towards the front of the car. It was also noted that Mr Quach gave no evidence about the passenger door being open at any time.

4. [16]

   The applicant relied on the fact that multiple witnesses heard Kupi say “he’s got a knife” although Kupi himself did not remember saying those words. It was said to follow “that the entirety of Mr Quach’s evidence about turning away from the altercation occurring between the cars in order to confront the person holding the knife was inaccurate”.

5. [17]

   It is also said that:

6. [18]

   By way of summary, it was said that Mr Quach’s evidence was at odds with the balance of the evidence as to (a) the location of Levi at the time the physical altercation commenced, (b) the identity of the person who was first punched, (c) Kupi’s location when he first saw the knife, (d) the location of the knife-wielding person, (e) Mr Quach’s advancing towards and pushing the person holding the knife in the location described by him, and (f) the movement of the knife wielding man after stabbing Levi in the back, moving to his front and then wielding the knife a second time. The consequence, so it was put, was as follows:

7. [19]

   The applicant also drew attention to the varying evidence as to the number of persons actively involved in the altercation (varying from four to six), the absence of physical evidence (for example, no evidence linking the applicant to the wounding was recovered on the applicant’s sling), and the possibility of distorted recollections, especially where the applicant was a prominent rugby league player who was recognised by one of the witnesses. Kupi gave evidence that both he and Mr Quach searched social media for the applicant while they were at the hospital, found a picture of him, and confirmed that he was the knife-wielding man. Of this it was said:

8. [20]

   It was added that the applicant’s sling was a “highly distinguishing feature” with the capacity to “catch the eye” in a fast moving and stressful event which occurred at night. It was said that there was a real risk that the accounts given to police, and their subsequent evidence, had been affected by “a degree of ‘group think’ rendering the evidence even more unreliable than it appeared”. It was said that:

9. [21]

   Exhibit 5 was a photo of the applicant in hospital, wearing a sling. It was tendered by the Crown through Charlie, who said that at around 2am or 3am on the Saturday morning, while he and Mr Quach were at the hospital, Mr Quach showed him the photo, and Charlie recognised him as the man in the sling.

10. [22]

    Mr Quach said in his evidence in chief that he recognised “Manase” when he first saw him approaching, because of “[t]he features that he had” and because he was wearing a sling, and that he did not recognise any of the other men with him.

11. [23]

    The written submissions concluded as follows:

Consideration

1. [24]

   Some of the inconsistencies relied upon by the applicant are readily explained. The premise of the submissions that exhibits A and 7 were irreconcilable was that both depicted the position of the men when Kupi shouted out that there was a knife. However, as is obvious from the fact that exhibit 7 shows Mr Quach twice, it represents at least two periods of time. In fact, as will be seen, it represents more periods of time.

2. [25]

   Importantly, there were additions to exhibit 7 as Mr Quach gave his evidence. In fact, the location of “MF” (ie, the applicant) well away from the other men and behind the other car reflected Mr Quach’s evidence of where the applicant was when Mr Quach first saw him, which was after Big Buck hit Levi. A second circle on the same diagram, closer to the space between the cars, and next to the second place where Mr Quach had placed himself, was where, according to Mr Quach, the applicant was when Mr Quach pushed him away, having seen he was holding a knife. If Mr Quach’s evidence is accepted, it is readily apparent how the knife-wielding man could approach and stab Levi. Contrary to the applicant’s submission, Mr Quach’s diagram is also consistent with Mr Quach turning around to see the man with the sling holding a knife when Kupi called out “he’s got a knife”. The fact that Mr Quach’s diagram does not show the car door being open is a consequence of the fact that he was not asked to draw the door. It is true that Kupi’s diagram shows Kupi in the thick of the melee, while Mr Quach’s shows him further away. It is also true that Kupi’s drawing shows the knife-wielding man to the rear of the vehicles, in contrast with some of his testimonial evidence that the knife-wielding man was towards the front of the vehicles. All of this is consistent with the men moving about during the melee.

3. [26]

   But the more important point is that it is entirely unsurprising that Mr Quach and Kupi would have different recollections concerning the relatively non-essential facts of where four or five or more men were in a very short period of time in a dynamic melee which occupied over a couple of minutes almost three years earlier. I fail to see how those divergences cast material doubt on the reliability of the evidence of both Mr Quach and Kupi that each saw the man with the sling wielding a knife. Indeed, I would be much more concerned, and the jury would be entitled to be much more concerned, if three years after the event, each of Mr Quach and Kupi produced materially identical diagrams of where the men were.

4. [27]

   For the same reasons, the fact that the witnesses identified different numbers of men involved in the melee does not materially detract from the cogency of the evidence of Mr Quach and Kupi that each saw the man with the sling wielding the knife.

5. [28]

   There was one difficulty with Mr Quach’s evidence which was different in nature from the foregoing. Mr Quach maintained in his evidence given at trial that, on the evening of the assault, he identified the man wielding the knife by name, as opposed to his being the man with a sling. That was at odds with a statement he had made to police the following day, in which he had said that “One of the guys was Nase, I didn’t know it was Nase at the time”. Mr Quach maintained in cross-examination that he had recognised the applicant and denied that he had only done so after the incident, although at one stage he said that “after the incidents, I did [know that it was Nase]”. (It is possible that the transcript is less clear than Mr Quach’s evidence was presented at trial.) There was evidence that Mr Quach had looked at social media images in the hospital, and seen a picture of the applicant wearing a sling (although he himself could not remember doing so). There is force in the applicant’s submission that Mr Quach may well have conflated his seeing a man with his left arm in a sling and a knife in his right hand with his identification of that man, a few hours later, as the applicant. There is no reason to doubt that Mr Quach genuinely believed, in 2022, that he had recognised the applicant at the time of the attack, and that that recollection was incorrect, because he did not in fact recognise him until a few hours later, despite it being clear that when he gave his police statement, Mr Quach believed that the applicant had stabbed Levi. It is perfectly possible that in the almost three years since the events, he had forgotten that he had only recognised the man in the sling at the time of the incident, and had come to believe that that was the applicant hours later. But once again, none of this casts doubt on the evidence that it was a man in a sling who wielded the knife which stabbed Levi.

6. [29]

   To the extent that the applicant relies upon memory being distorted, because the applicant’s sling was a highly distinguishing feature which might catch Mr Quach’s eye, and that his evidence might have been contaminated by seeing pictures of the applicant on social media, this was quintessentially a matter for the jury, which heard submissions on these issues from senior counsel then appearing for him.

7. [30]

   And in any event, as the Crown succinctly pointed out, the Crown case did not depend solely upon the evidence of Mr Quach. As it was put:

8. [31]

   In written submissions the applicant relied upon a recording on a mobile phone handset taken immediately after the stabbing by one of the witnesses. The witness agreed that her voice was recorded as asking “do you know who done it?”, and an unidentified voice said either “the one with the shorts” or “the ones with the shorts”. The applicant relied upon the singular answer, and relied on this to indicate that it was not the applicant (who was wearing long tracksuit pants) but one of his friends who stabbed Levi, most of whom were wearing shorts. However, this Court is in at least as good a position as the jury on this issue. I have listened carefully to the recording on several occasions. One of the answers is not quite clear but appears to be in the singular, but the other is unambiguously in the plural. It is clear that the answer “the ones with the shorts” referred to the group of men, most of whom were wearing shorts but two of whom, including the applicant, were wearing tracksuit pants. Accordingly, the statement is not exonerating of the applicant, nor is the fact (if it be the fact) that the voice used both the singular and the plural. That may explain why no oral submissions were made developing the point.

Conclusion and orders

1. [32]

   In light of the submissions about the fallibility of memory and the possibility of contamination, it is worth referring to the document tendered before the jury without objection, namely, a statement made by a Senior Constable who attended the scene at around 11.40pm, who had refreshed her memory from her official police notebook. She gave the following description:

2. [33]

   Consistently with the applicant’s submissions, that evidence tends to suggest that Mr Quach did not recognise the applicant as Manase Fainu in the immediate aftermath of the incident, because his name is not given. However, nothing turns on that, because the same document also suggests that immediately after the incident, before being exposed to social media, Mr Quach identified the offender as “a male with his left arm in a case with a knife”.

3. [34]

   In his evidence at trial, Mr Quach said that he saw a man with his left arm in a sling and with a knife in his right arm. He saw the man try to stab Levi. He said that he pushed the man away, but that the man with the sling came back and stabbed Levi and then the group bolted away into the carpark. His evidence included:

4. [35]

   The jury saw that evidence being given and tested in cross-examination. The jury also saw Kupi give evidence, saying that he saw the applicant holding a knife, with nothing obstructing his view. Kupi’s evidence continued:

5. [36]

   As noted above, there are difficulties in the evidence of Mr Quach, notably that he had come to believe that he had quickly identified the applicant as wielding the knife. However, Mr Smith, who appeared in this Court but not at trial, candidly and properly acknowledged that the various inconsistencies and gaps in the evidence upon which he relied had all been exposed to the jury in the defence closing address. The Crown submitted that this was a case where the jury’s advantage was considerable.

6. [37]

   The jury saw all of the evidence unfold, especially that of Mr Quach and Kupi. No challenge is made to her Honour’s Liberato direction, that if they believed the applicant the jury must find him not guilty, that if they had difficulty accepting the applicant’s evidence but thought it might be true, they must acquit, and that even if they did not believe the applicant, they must put it to one side and ask whether the Crown had proved the applicant’s guilt beyond reasonable doubt. It is utterly unsurprising that when giving evidence of what occurred, and when it occurred, in an altercation and melee involving a number of men but taking place in a matter of minutes, the witnesses’ recollections when giving evidence almost three years later were inconsistent in matters such as the location and number of men. All of those inconsistencies were at the forefront of the submissions made on behalf of the applicant by senior counsel who then appeared for him at trial.

7. [38]

   Contrary to the applicant’s principal submission, this is not a case which stood or fell on the evidence of Mr Quach. Kupi also unambiguously identified the man with the sling wielding the knife. But the ultimate question is whether, in light of all of the evidence, it was open to the jury to convict. Nothing in the applicant’s submissions persuades me that it was not open to the jury to accept that the Crown had proven the applicant’s guilt beyond reasonable doubt, relying in particular on the evidence of Mr Quach and Kupi. To the contrary, it was amply open to the jury to return a guilty verdict.

8. [39]

   I propose the following orders:

9. [40]

   N ADAMS J: I agree with Leeming JA. I am satisfied, for the reasons provided by his Honour, that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

10. [41]

    DHANJI J: I agree with Leeming JA.