Kaddour v R

1. [1]

   After a trial before Matthews AJ and a jury of 12, Ahmed Kaddour (the appellant) was found guilty of the murder on 14 August 2013 of Basem Salameh (the deceased). On 16 May 2017 he was sentenced by Matthews AJ to imprisonment for a term of 20 years with a non-parole period of 15 years commencing 29 August 2013 and expiring 28 August 2028 with a balance of term of five years expiring 28 August 2033.

2. [2]

   The appellant now appeals from that conviction upon the following grounds:

Facts

1. [3]

   At the time of his death the deceased was living in a unit in Blaxcell Street, Granville, on the first floor of a building managed by the Department of Housing. He was acquainted with the appellant (sometimes referred to in the evidence as “Biggie”), Daniel Azar (generally referred to as “Daniel”), who pleaded guilty to the manslaughter of the deceased, and Mohamed El-Chami.

2. [4]

   Shortly before 4:00am on Tuesday, 13 August 2013 police attended the deceased's unit regarding an allegation of malicious damage relating to a broken window to the deceased's unit. The deceased alleged that a man by the name of Ray had smashed his window. The deceased was heavily intoxicated and drug affected when the police spoke to him. They also spoke to Mr El-Chami, who was present at the deceased's unit. Mr El-Chami told police that Ray had pointed a silver firearm towards him.

3. [5]

   The man Ray (Raed Alasmar) was found in a nearby carpark. He was affected by alcohol and drugs, and had sustained lacerations to his head, forehead and nose. He was taken to hospital. In a police statement, Mr Alasmar said that he had been assaulted by the deceased and three other men whom he did not know.

4. [6]

   Arrangements were made for Mr El-Chami and the deceased to attend at Granville Police Station later that day when they were sober and not drug affected. However, neither of them did so.

5. [7]

   The principal account of what happened later on that day and into the early hours of the following morning concerning the deceased was given by Mr El-Chami.

6. [8]

   At some time on 13 August 2013 - the precise time is unclear - Mr El-Chami was at the deceased’s premises with Daniel, where they had all apparently been asleep.

7. [9]

   Mr El-Chami said that he was awakened by Daniel who, having woken up himself, said to the deceased, “Why did you touch my arse?” Daniel then proceeded to hit the deceased. Shortly afterwards, Mr El-Chami and Daniel left the deceased’s premises.

8. [10]

   At a later time that day Mr El-Chami and Daniel returned to the premises with the appellant. The four of them often socialised at the deceased’s premises.

9. [11]

   When they returned to the premises, Mr El-Chami said that they spent the time chilling, talking and smoking. He said that after they had been smoking it brought back everything. Daniel got a bit upset and then got into a fury about the deceased having pinched him on his backside. That led to Daniel punching the deceased. Mr El-Chami got up to leave and said (T200):

10. [12]

    Mr El-Chami then went downstairs. He said that he thought the others were coming down and he waited for 20 minutes. When they didn’t come he went back up to the unit.

11. [13]

    While Mr El-Chami was downstairs, the CCTV footage shows that both Daniel and the appellant came out of the unit. It seems that Daniel stayed up on the first level but the appellant walked downstairs to ground level. The CCTV footage shows that Daniel and the appellant walked back towards the deceased’s unit. Some nine minutes later, Mr El-Chami went back in. He said that he had difficulty getting into the unit as there were “feet at the end of the door”. They were the deceased’s feet, because the deceased was lying on the ground. When Mr El-Chami went into the unit he saw Daniel leaning next to the deceased with a red object in his hand that looked like a hacksaw. He kicked the object out of Daniel’s hand. He said that the appellant was looking for something in the cupboard.

12. [14]

    Mr El-Chami then left the unit, and a few minutes later the CCTV shows Daniel coming out of the unit, and subsequently shows the appellant with Mr El-Chami walking in the car park. Mr El-Chami said that shortly after that, the appellant threw a ball through a window in the complex so that the police would attend. The three of them then ran off along Blaxcell Street.

13. [15]

    Later on the morning of 14 August 2013 a Department of Housing employee, Mr Kimberley Naylor, attended at the apartment block to carry out maintenance duties on the building. The police were also in attendance in response to a call from a resident, Mr Fahed Ibrahim, whose window had been broken by the ball thrown by the appellant.

14. [16]

    Mr Naylor observed that a window to the deceased's unit had been broken, and that there was a barricade on the inside of the window preventing anyone from reaching through the window to open the door to the unit. Mr Naylor also observed that there appeared to be blood coming from weep holes associated with the unit.

15. [17]

    When Mr Naylor called out and received no answer from within the unit, he entered it with the police. They found a large pile of clothing and bed linen on the hallway floor, and the deceased's foot was protruding from beneath the pile. Thereafter crime scene officers and a forensic pathologist, Dr Yohan Duflou, attended the scene. A number of items were seized from the unit and were examined for fingerprints and DNA evidence.

16. [18]

    Dr Duflou performed an autopsy on 15 August 2013. He determined that the direct cause of death was blunt force injuries. He identified the following particular injuries:

17. [19]

    Dr Duflou also gave evidence that the deceased’s left eyeball had essentially been broken open. He said that the ruptured eyeball was likely to have been caused by something being pushed into the eyeball region rather than from a blow or kick.

18. [20]

    Dr Duflou said that the deceased died as a result of a number of injuries, with the major injuries being the brain damage and skull fracture. Other injuries that caused the deceased's death were the laceration of the scalp and the associated blood loss, as well as the multiple rib fractures on both sides of the deceased's body.

19. [21]

    He said that a fairly high level of force was required to create the fracture at the base of the deceased’s skull. He thought that it would be very difficult for a punch to cause that type of force. He said that a kick or a stomp with the head on the ground could readily cause that type of injury as could blows with objects like pieces of wood or bricks.

20. [22]

    The Crown case was largely a circumstantial one, apart from what was shown on the CCTV footage. Much, but not all, of its case depended on Mr El-Chami’s evidence, particularly on admissions he claimed the appellant had made to him which he set out in his first statement to the police on 20 August 2013 (MFI 5). The evidence was said to demonstrate that there was a joint criminal enterprise between the appellant and Mr Azar to inflict grievous bodily harm on the deceased. The Crown submitted that the joint criminal enterprise commenced at the time he saw both the appellant and Mr Azar assault the deceased just before Mr El-Chami left the unit for about 20 minutes.

21. [23]

    In addition to Mr El-Chami’s evidence, the Crown relied on the CCTV footage which was said to demonstrate the periods during which the appellant and Mr Azar were in the unit with the deceased and Mr El-Chami was outside downstairs. The Crown also relied on the appellant’s fingerprints in blood being found on a pole at the scene, and on part of the top of a broken table which Mr El-Chami said had been broken over the head of the deceased. The Crown also relied on lies told by the appellant in his record of interview which were said to constitute a consciousness of guilt.

22. [24]

    The appellant’s case, largely from evidence given by the appellant at the trial, can be summarised as follows. The appellant said that it was Mr El-Chami who told him that the deceased had grabbed Daniel “on his balls, testicle area”. In response to that, the appellant said that he would go to speak to the deceased and sort out the problem because Daniel seemed “quite a bit distraught”.

23. [25]

    He arrived at the deceased’s unit with Daniel and Mr El-Chami at about 1:00am to 1:30am. They all had a conversation and then the appellant asked the deceased “Did you touch Daniel?” The deceased did not reply. The appellant asked him again and he did not reply. The appellant asked him a third time, and the deceased said “‘Get the fuck out of my house before I call the police’ or something along them lines”. He said that Daniel then got up and began hitting the deceased about three times in the face region.

24. [26]

    The deceased then said he would explain why he had touched Daniel, and the appellant pulled Daniel off the deceased. After the explanation “things got patched up”. The appellant got up and went outside the unit, and he thought that Daniel followed him shortly thereafter. When the appellant went back in he asked Mr El-Chami “what happened” and Mr El-Chami said that everything was patched up.

25. [27]

    The appellant found his phone on the couch. Daniel then walked back into the unit to get some of his belongings. The appellant then left the unit to speak with Mr El-Chami who had walked out. Daniel followed him.

26. [28]

    The appellant and Daniel then went back into the unit and had a smoke for a couple of minutes. The deceased and Daniel then started arguing, and Daniel started hitting the deceased. He used a closed fist in the face area. A pole then came into Daniel’s hands, and Daniel began hitting the deceased with it. The appellant thought that the deceased was hit to the floor with a punch. He thought that Daniel hit the deceased with the pole in the head area. The appellant said that he wrestled with Daniel and took the pole from him and told him to relax. Then Daniel picked up a table and broke it on the deceased’s head. Daniel was very angry. At that stage the deceased was lying on the ground and the appellant could see blood in his facial area. The appellant asked the deceased if he was all right and the deceased told them to leave him alone and to get out of his house.

27. [29]

    The appellant said that the assault on the deceased by Daniel took no more than two minutes. He never saw an unspent cartridge being put in the deceased’s mouth, and he never saw Daniel with a hacksaw.

28. [30]

    The appellant remembered Mr El-Chami coming into the unit and saying something like “What the fuck happened?” The appellant then left the unit followed by Mr El-Chami.

29. [31]

    As the appellant walked away from the unit, Mr El-Chami said to the appellant “Yous fucked up, yous fucked up”, and the appellant said he had nothing to do with it. One of them said that they had to ring triple 0, but they did not want to use their phones because they did not want to be implicated in the mess. They came to an agreement to throw a lawn bowl through a window so that the police would come, and assistance would be provided. The appellant then threw a ball through a window and they ran away. The appellant said he first became aware that the deceased had died the next day.

30. [32]

    The appellant agreed that he lied in his police interview. He said he did it because he was under the influence of drugs and he was worried that he might get involved in the mess when he had nothing to do with it. He agreed, when shown the CCTV clips, that he appeared carrying a pole at 2:03:00. He could not recall why he was carrying it. He thought it might have come from the deceased’s unit but he was not sure.

Grounds of appeal

1. [33]

   It is convenient to deal with grounds 2, 3 and 4 first, and then to consider ground 1, particularly by reason of the way the appeal was argued.

2. [34]

   Grounds 2 and 3 are in the following terms:

3. [35]

   As is apparent from these grounds, they relate to the evidence of Mr El-Chami. Mr El-Chami was in the company of the appellant and Mr Azar in or near the vicinity of the deceased’s premises in Granville, at the time when the assault which led to the death of the deceased took place.

4. [36]

   Mr El-Chami was charged on 29 August 2013 with the murder of the deceased. On that day he made a statement to the police which became MFI 5 in the proceedings. The appellant and Mr Azar were also charged with the murder, although the Crown ultimately accepted a plea of guilty to manslaughter in the case of Mr Azar.

5. [37]

   The murder charge against Mr El-Chami was subsequently withdrawn and he pleaded guilty to concealing a serious criminal offence. He was sentenced for that offence on 19 April 2016, receiving a discount on sentencing for agreeing to provide further assistance to the Crown in the prosecution of the appellant and Mr Azar.

6. [38]

   On 31 March 2016, shortly prior to him being sentenced, Mr El-Chami made a further statement which became MFI 4 in the proceedings.

7. [39]

   Although it must be emphasised that neither statement was in evidence, portions of each statement were directly put to Mr El-Chami and it is convenient to set them out.

8. [40]

   In the first statement, MFI 5, Mr El-Chami stated the following:

9. [41]

   His second statement, MFI 4, contained the following material:

10. [42]

    It was in that context that Mr El-Chami gave his evidence.

11. [43]

    At the outset of his evidence in chief Mr El-Chami was shown MFI 4 and acknowledged that what he told the police as recorded in that statement was the truth.

12. [44]

    He then gave the following evidence concerning the events of 13 August 2013:

13. [45]

    Thereafter Mr El-Chami was asked questions by reference to clips taken from the CCTV camera located outside the premises at which the murder took place. The first series of questions related to what was described as clip number 9, starting at 2.15am:

14. [46]

    He was subsequently asked the following questions:

15. [47]

    The Crown then made what was the first application under s 38 of the Evidence Act 1995 (NSW) (the Evidence Act) for leave to cross-examine Mr El-Chami. The application was made on the basis of what was said in paragraph 8 of MFI 5. In that context, the following interchange took place:

16. [48]

    Thereafter the Crown asked the following questions of Mr El-Chami:

17. [49]

    Mr El-Chami was then cross-examined. He was first asked questions about when the police arrived, following the breaking of the window and the altercation with Ray. He was asked the following questions and gave the following answers:

18. [50]

    Following further questioning regarding the incident with Ray, he was cross-examined on the events before the day of the murder:

19. [51]

    That evidence was exculpatory of the appellant. Mr El-Chami was subsequently cross-examined on what occurred on 20 August 2013:

20. [52]

    Finally in cross-examination he was asked the following questions and gave the following answers:

21. [53]

    There followed a further application under s 38 of the Evidence Act, concerning paragraph 11 of MFI 5. The application was made at the conclusion of day five of the trial and at the conclusion of Mr El-Chami’s cross-examination:

22. [54]

    On the following day further discussion ensued:

23. [55]

    Following the conclusion of the argument, the Crown further cross-examined Mr El-Chami to the following effect:

24. [56]

    Counsel for the appellant then further cross-examined Mr El-Chami to the following effect:

25. [57]

    That cross-examination concerned the events of 19 and 20 August 2013. Taken in context it would seem that the answer given to two questions “[w]hatever is in my statement is true” referred to the statement which is MFI 5.

26. [58]

    He was then asked about his statement of 31 March 2016:

The legislation

1. [59]

   In considering the issues raised by these grounds, it is necessary to have regard to the following provisions of the Evidence Act:

The parties’ submissions

1. [60]

   Because Ground 3 is in one sense anterior to Ground 2 and was dealt with in that fashion by senior counsel for the appellant, it is convenient to deal with the submissions on Ground 3 at the outset.

2. [61]

   The appellant in his written submissions referred to that portion of the evidence to which we have referred at [55]. It was submitted that the questioning of Mr El-Chami was limited to what El-Chami said to the police in his first statement, but “he was not recounting an independent recollection of what he had heard”. It was submitted that that was “put beyond doubt” by his statement in cross-examination, that he could not remember if what he said in his August statement was true (see [58] above).

3. [62]

   It was submitted that in these circumstances, having regard to the provisions of s 60(3) of the Evidence Act, the evidence was not admissible to prove the content of the statement and Mr El-Chami’s evidence, which we have set out at [55], could only go to credit. It was submitted that in these circumstances, leave should not have been granted under s 38 to permit cross-examination by the Crown on paragraph 11 of MFI 5.

4. [63]

   The appellant submitted that in granting leave to cross-examine Mr El-Chami, her Honour failed to give reasons and failed to have regard to s 192 of the Evidence Act. Senior counsel for the appellant submitted that the exercise of the s 192 discretion was not “straight-forward at all” in the circumstances of the present case, and it was necessary to have regard to the fact that the out of court testimony could not be used for a hearsay purpose as an admission.

5. [64]

   Senior counsel for the appellant rejected the proposition that Mr El-Chami, in the passage at [55], affirmed the truth of what was said in paragraph 11 of his statement, but submitted that having regard to the self-evident inconsistencies in Mr El-Chami’s evidence, what was said in court was “worthless” and what was said out of court was inadmissible. He submitted that even if Mr El-Chami affirmed the truth of the statement, what was left was “wholly unreliable” out of court testimony which had to be taken into account in exercising the discretion under s 192. He submitted, however, that the answer “True” was ambiguous and did not amount to an affirmation of the truth of the statement.

6. [65]

   The appellant submitted, referring to Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 (Stanoevski) at [41] and [47], that the failure to have regard to the relevant factors set out in s 192 constitutes error.

7. [66]

   Senior counsel for the appellant submitted that s 192(b) and (c) of the Evidence Act required the Court to take into account the unfairness to the appellant in permitting the cross-examination and the importance of the evidence. He submitted that there was not only unfairness to the appellant resulting from his counsel having completed his cross-examination prior to the application being made, but the unfairness of having the out of court representation in evidence, notwithstanding the possibility of directing the jury to ignore it.

8. [67]

   So far as Ground 2 was concerned, the written submissions of the appellant refer to the reliance placed on the statement, noting that it was argued by the Crown Prosecutor that the statement was corroborated. In these circumstances, the following passage of the Crown Prosecutor’s address was referred to:

9. [68]

   The appellant submitted it was incumbent on the trial judge to give a direction that the out of court representation could not be relied upon to prove the truth of the statement. It was submitted that the failure to do so amounted to a substantial miscarriage of justice, such that rule 4 of the Criminal Appeal Rules did not apply.

10. [69]

    The respondent in written submissions submitted that no complaint was made by trial counsel for the appellant about what had occurred. In the circumstances, it was submitted, r 4 applied. However, it must be said although it is true that the particular matters raised by the appellant in the appeal were not raised directly, trial counsel for the appellant did object to the second application under s 38.

11. [70]

    In the Crown’s written submissions it was contended that it was incorrect to state that the parties at the trial “did not turn their minds to the relevance” of the admissions made by the appellant to Mr El-Chami. It was submitted that Mr El-Chami “confirmed the truth of what he had said in his first written statement about the appellant’s admissions”, which made the admissions first-hand hearsay and admissible under s 81 of the Evidence Act. It was submitted that there was no miscarriage of justice. In that context, the Crown submitted at the hearing that “everyone knew exactly what was being done” during the trial, namely, that the Crown was trying to get evidence from Mr El-Chami that was in accordance with the statement that he had made earlier on 20 August.

12. [71]

    At the hearing the Crown, referring to Dunks v R [2014] NSWCCA 134 and R v MDB [2005] NSWCCA 354, submitted that it was not necessary for the trial judge to refer in detail to s 192, provided she took into account the matters required by that section to be taken into account and that it was incumbent on counsel to draw attention to matters of concern under the section. It was submitted that the argument which took place prior to the trial judge making the order under s 38, showed that she had taken the matters in s 192(b) and (c) into account.

13. [72]

    The exception to the hearsay rule in s 60 of the Evidence Act does not apply in a criminal proceeding. The effect is that second-hand hearsay of a representation made in an out of court statement cannot be relied upon as an admission for the purpose of s 81 of the Evidence Act. Thus if, as was contended by the appellant, all that Mr El-Chami had done in his evidence was to affirm the fact he made the statement which became MFI 5, that would not be evidence of the truth of its contents.

14. [73]

    This was made clear in Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60. In that case a witness had made an out of court statement which included admissions made by the accused. At the trial, the witness gave evidence denying or not admitting that the admissions had been made. It was held that s 60 did not permit the out of court statements to be used as proof of what was said. Emphasising that s 59 of the Evidence Act required consideration first of why it is sought to lead evidence of something said or done out of court, the Court went on to make the following remarks:

15. [74]

    Subsection (3) of s 60 was inserted in the legislation subsequent to this decision. It makes it clear that what was stated in Lee was consistent with the legislative intention.

16. [75]

    It follows that if the only purpose of the application under s 38 was to lead evidence for the purpose of attacking the credit of the witness on the basis that he made a prior inconsistent statement, there would have been powerful reasons to reject the application, particularly having regard to the unfairness to the accused: Evidence Act s 192(2)(b). However, in our opinion the application was not made on this basis.

17. [76]

    Although the first application under s 38, to which no objection was taken, was presented on the basis that paragraph 8 of MFI 5 was a prior inconsistent statement, the witness although first only saying that he made the statement, ultimately stated that paragraph 8 was true.

18. [77]

    The second application (see [53]) was expressed in terms of being for the purpose of leading admissions in paragraph 11 of MFI 5. Her Honour recognised that it was “a serious admission” and described it as a matter of “fundamental importance”. She said it was not a collateral matter.

19. [78]

    On the following day, trial counsel for the appellant stressed his disadvantage, both by reason of the fact he had completed cross-examination and that he structured his cross-examination in a particular way. He submitted that the disadvantage would not be ameliorated by the jury being told that further cross-examination on behalf of the Crown and by him, resulted from an error of the Crown in the conduct of its case. Trial counsel for the appellant agreed it was a highly relevant piece of evidence.

20. [79]

    It was contended that the trial judge’s discretion miscarried essentially for three reasons. First, she failed to consider the matters in s 192 of the Evidence Act and in that context, failed to give reasons for the exercise of her discretion, second, that the evidence could only be admitted as going to credit, and third, that even if Mr El-Chami had affirmed paragraph 11 of MFI 5, it would be worthless having regard to the inconsistencies in the evidence that he had given up to that time.

21. [80]

    In Stanoevski, it was stated that in exercising a discretion conferred by the Evidence Act, the trial judge fell into error by failing to take into account the matters referred to in s 192 of the Evidence Act: (2001) 202 CLR 115 at [44], [55], [57] and [67].

22. [81]

    However, the fact the trial judge did not specifically refer to s 192 is not itself an error, providing that it could be shown that she had in fact considered the matters referred to in that section: Dunks v R [2014] NSWCCA 134 at [43]; R v Reardon [2002] NSWCCA 203 at [23]-[24]. In the former case R A Hulme J, with whom Gleeson JA and Campbell J agreed, cited the following passage in R v Reardon with approval:

23. [82]

    In R v RTB [2002] NSWCCA 104 the Court, after referring to Stanoevski, made the following remarks at [88]:

24. [83]

    Further, as Simpson J stated in R v MDB [2005] NSWCCA 354 at [19], “[i]t is the obligation of counsel to draw to the attention of the Court any of the s 192 considerations that are relevant” and the obligation of the Court was to take them into account.

25. [84]

    In the present case no reasons were given by the trial judge and she was not requested to give them. The matters in s 192 which bear upon the exercise of the discretion in the present case were s 192(2)(b) and s 192(2)(c). It is clear from the argument which took place that these matters were in fact considered by the trial judge in reaching her decision. So far as s 192(2)(c) was concerned, she referred to the importance of the evidence, describing it as a “damning piece of evidence” and “highly relevant”. Trial counsel for the appellant agreed with her. The trial judge considered the submission of unfairness made by trial counsel for the appellant on the basis that he had completed his cross-examination and evidently took the view that there could be further cross-examination, and any prejudice would be ameliorated by the jury being told it resulted from an omission by the Crown. In these circumstances, it seems to us that the matters referred to in s 192(2)(b) and (c) were taken into account.

26. [85]

    It was fundamental to the appellant’s submission that the evidence to be led could only go to credit and this was not taken into account. There are a number of difficulties with this submission. First, it ignores the fact that if Mr El-Chami affirmed the truth of paragraph 11 of MFI 5, it would be admissible against the appellant as an admission under s 81 of the Evidence Act. Second, at the time the trial judge came to consider the matter she was not in a position to know whether Mr El-Chami would or would not affirm the truth of the statement and thus give in court evidence of the admission or deny it. If he denied it, it would of course have been necessary for a direction to be given to the jury that the statement could not be used as proof of its contents. In that context, it must be remembered that when Mr El-Chami was asked about paragraph 8 of MFI 5, he agreed he told the truth in his first statement. Third, no submission was made to the trial judge that any further examination could only go to credit.

27. [86]

    Finally it was suggested the evidence was worthless. In Stanoevski, a case concerning an application for leave to cross-examine on character, the majority observed that “the weight to be accorded to the evidence sought to be adduced whether in cross-examination or otherwise, is a matter of considerable relevance” to the exercise of the discretion: 202 CLR 115 at [44]. In the present case whatever weight the evidence may have would depend on the jury’s assessment of the evidence. It does not seem to us that it was necessary for the trial judge to refuse leave because of her assessment of the weight of the evidence, particularly when she was not requested to do so.

28. [87]

    It follows that Ground 3 has not been made out.

29. [88]

    Ground 2 depends upon whether the evidence given by Mr El-Chami merely affirms the fact that he made the statement contained in paragraph 11 of MFI 5 or whether he affirmed its truth. If the former, it could only go to credit and the ground would have been made out. If the latter, it was admissible to prove the truth and there was no error in failing to give the direction referred to in the ground.

30. [89]

    We have set out the evidence at [55]. Mr El-Chami first referred to paragraph 10 of MFI 5 and it was put to him, “That’s true isn’t it” and he agreed. The concluding question referred to the edited version of the statement in paragraph 11 in MFI 5 and he was asked, “True?” and he responded “True”.

31. [90]

    It seems to us that in giving that answer, Mr El-Chami stated that what he said in the part of paragraph 11 of MFI 5 that was read to him was true. The evidence given in Court was first-hand hearsay and was admissible under s 81. There was therefore no need for the direction.

32. [91]

    It follows that Ground 2 has not been made out.

Ground 4

1. [92]

   As we have pointed out, Mr El-Chami was sentenced on 19 April 2016 for the offence of concealing a serious offence and was placed on a bond to be of good behaviour for a period of three months. He had already spent a considerable time in prison whilst on remand, first, on the charge of murder of the deceased and second, for the offence for which he was ultimately convicted. In imposing sentence the sentencing judge granted a significant discount on the basis of an undertaking by Mr El-Chami that he would provide assistance to the police and prosecuting authorities by giving evidence in the prosecution of the appellant and Mr Azar, who at that stage had not pleaded guilty to manslaughter. He was cross-examined to that effect on a number of occasions. In these circumstances a direction under s 165 of the Evidence Act was sought by counsel for the appellant.

2. [93]

   Section 165 is in the following terms:

3. [94]

   At the conclusion of the seventh day of the trial while the appellant was still under cross-examination, trial counsel for the appellant requested that the trial judge give a direction under s 165(1)(d) of the Evidence Act and the trial judge agreed to do so.

4. [95]

   Trial counsel for the appellant addressed extensively on the evidence of Mr El-Chami. Initially he emphasised its unreliability in the following terms:

5. [96]

   Thereafter having reviewed part of his evidence, trial counsel for the appellant proceeded to deal with Mr El-Chami’s statement of 20 August 2013. He made the following remarks:

6. [97]

   Counsel for the appellant then referred to the evidence of Mr El-Chami to the effect that in making his 2013 statement he got the names mixed up (see [50] above) effectively resiling from that statement. Counsel then made the following remarks to the jury:

7. [98]

   Following the conclusion of counsel’s address, the following discussion took place:

8. [99]

   The discussion above took place on the ninth day of the trial. On the following day, further argument ensued:

9. [100]

   In her summing-up the trial judge dealt with the evidence of Mr El-Chami in the following terms:

10. [101]

    In subsequently dealing with the evidence of Mr El-Chami in her summing-up, the trial judge referred to the fact that after Mr El-Chami made the August 2013 statement he had been initially charged with murder and repeated the direction that the jury could take into account the reduction in sentence he received for the offence for which he ultimately pleaded guilty because of his promise to help the prosecution.

11. [102]

    Senior counsel for the appellant described the way the direction was given as “worse than no warning” because the jury were told to disregard it if they were satisfied he was not criminally concerned and they could ignore the discount for assistance.

12. [103]

    Referring to the passage of trial counsel’s address commencing “when the fog cleared” (see [97] above), senior counsel for the appellant submitted that a warning under s 165 of the Evidence Act would not have undermined that submission, stating that that submission was addressed to paragraphs 8 and 11 of MFI 5. He emphasised that the Crown did not oppose the warning.

13. [104]

    Senior counsel for the appellant, referring to Kanaan v R [2006] NSWCCA 109 at [166], submitted that one basis on which the evidence may be unreliable is “directly relevant to the indemnity or undertaking given to the witness”, something which is less likely to be “within the general understanding and experience of jurors”.

14. [105]

    It should be noted that in written submissions filed for the appellant, it was acknowledged that “there was no evidence Mr El-Chami was ‘criminally concerned in the events giving rise to the proceedings’”.

15. [106]

    The Crown submitted at the hearing that having regard to the cross-examination of Mr El-Chami, there was a real question as to the sort of warning which should have been given which was not addressed. The Crown rhetorically asked “was her Honour supposed to say ‘well he’s unreliable in certain aspects but not in others’”.

16. [107]

    The circumstances of the present case are unusual. First, when Mr El-Chami made his first statement he was suspected of murder, an offence for which he was charged shortly after making the statement: see R v El-Chami [2016] NSWSC 445 at [5]. Subsequently, the murder charge was withdrawn and by the time he came to be sentenced for the crime of concealing a serious offence, he had made the statement which became MFI 4.

17. [108]

    Second, trial counsel for the appellant accepted that Mr El-Chami was not a person who might reasonably be supposed to have been criminally involved in the events giving rise to the proceedings (see [98] above). That was accepted in the written submissions on the appeal (see [105] above).

18. [109]

    Third, far from the suggestion that the whole of Mr El-Chami’s evidence was unreliable, the appellant sought to rely on what was said in MFI 4 stating, “The most reliable account that he has given is to be found in what he said to his solicitors in preparation for his sentencing hearing on conceal serious offence and as an indication to the sentencing judge as the evidence he would be giving in the trial because everything is now lifted”. Although trial counsel said emphatically that what Mr El-Chami said in his August 2013 statement should not be accepted, he did not suggest his evidence otherwise was unreliable, rather he asked the jury to rely on one version of his evidence whilst rejecting the other.

19. [110]

    It was in this context that the trial judge made the remarks to which we have referred at [100]. The opening paragraph expressly refers to the incentive Mr El-Chami had to aid the Crown, stating “in one way or another, [he] can therefore be taken to have been criminally concerned in the matters giving rise to these proceedings”.

20. [111]

    The balance of the trial judge’s summing-up on this issue, to which we have referred, sought to accommodate trial counsel for the appellant’s contention that Mr El-Chami was not criminally involved in the events giving rise to the proceedings, which was of importance to him in persuading the jury that the second version given in his statement was correct. It was in this context the trial judge said the warning she was about to give could be disregarded.

21. [112]

    A warning may be required when a matter falls within one of the designated categories in s 165(1) of the Evidence Act. However, there are some cases when it will not be necessary to give one. Equally, there are cases when a warning of the kind contemplated in s 165 needs to be given, even if the particular circumstances do not fall within one of the designated categories in s 165. Thus, in R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260, Hulme J made the following remarks:

22. [113]

    Further, in Kanaan v R (2006) NSWCCA 109, the Court dealt with matters which had the potential to make an induced statement by an accomplice unreliable and require the giving of a warning. Relevantly, they made the following comments:

23. [114]

    These cases establish that there was no need to give a warning under s 165 as to unreliability where it is a consequence of the inconsistency in the evidence given by the witness, or inconsistencies between that evidence and a prior statement by the witness. That such matters could affect reliability would be well understood and appreciated by a jury because it “falls within their general understanding and experience”: see Stewart at [98]-[99]. Equally the fact that a witness may have an incentive to give evidence favourable to the Crown by virtue of the fact the witness received a discount on sentence is something which should be drawn to the attention of the jury. The trial judge did so independently of the s 165(1)(d) warning, both prior to giving the s 165(1)(d) warning and subsequently in her summing-up: see [110] above.

24. [115]

    There remains the complaint about the s 165(1)(d) warning. Such a warning is required when the witness “might reasonably be supposed to be criminally concerned in the events giving rise to the proceeding”. If a witness was not so criminally concerned as was accepted to be the case at the trial and on appeal, there was no reason to give such a warning and indeed it would be wrong to do so. In the latter part of that portion of the trial judge’s summing-up to which we have referred at [100], the trial judge was concerned to explain to the jury that the particular matters giving rise to the unreliability of Mr El-Chami’s evidence if he was criminally concerned, would not apply if the jury, consistent with the position taken by counsel for the appellant, concluded that he was not so concerned.

25. [116]

    It is difficult to see what other direction could have been given. None was suggested either at the trial or on appeal. In Greenhalgh v R [2017] NSWCCA 94, Basten JA stated at [21] that “in cases where no direction was sought [at trial], it will usually be a pre-condition to a grant of leave under r 4 that the omitted direction should be expressly formulated”.

26. [117]

    In the present case, irrespective of the application of r 4, it is difficult to see what direction should be formulated in the absence of any one being suggested. It would not be appropriate to direct the jury that one portion of Mr El-Chami’s evidence was unreliable whilst another was not. This had been put forcefully by the appellant and was a matter for the jury to consider. It was not a matter for the trial judge to implicitly express a preference for one of the two versions by stating that one might be unreliable for particular reasons whilst the other was not. The alternative was to suggest the whole of Mr El-Chami’s evidence should be treated with caution. That would be to cause injustice to the appellant who was contending that in the circumstances, to the extent Mr El-Chami’s evidence was consistent with what was contained in his statement which was MFI 5, it should be accepted.

27. [118]

    It follows, in our opinion, there was no miscarriage of justice in the direction given on this issue. This ground of appeal has not been made out.

Ground 1

1. [119]

   The appellant submitted that the evidence against him consisted of four discrete heads of evidence:

2. [120]

   The appellant submitted that none of those pieces of evidence, whether viewed individually or in combination, warranted a finding beyond reasonable doubt that the appellant had murdered the deceased. Rather, the appellant submitted that a review of the evidence would leave the Court with a sense of doubt, which should have been experienced by the jury at first instance.

3. [121]

   As far as the forensic evidence was concerned, senior counsel for the appellant submitted that it was limited to some blood and fingerprints found at marker F4 on the pole and the thumbprint on the tiled surface of the broken table top. He submitted that the Crown Prosecutor conceded that there was no DNA evidence touching the appellant and that there was nothing in the analysis that linked the human blood with the deceased. He submitted that, although the pole had the appellant’s prints on it, the pole was not directly linked to the deceased’s death.

4. [122]

   In relation to the CCTV evidence, the appellant submitted that it was capable of showing only that the appellant was present at or about the time of the assault upon the deceased. It was submitted that the footage demonstrated that there were periods when Mr Azar would have been in the flat, while the appellant was outside. The footage allowed of the possibility that the assault occurred when the appellant was not even in the apartment, and the footage did not establish that the appellant was present at the time of the assault, let alone that he assisted, or at least stood ready to assist, Mr Azar.

5. [123]

   In relation to the record of interview, the written submissions for the appellant drew attention to the acceptance at the trial by the appellant’s counsel that the appellant had lied to police and that those lies could be relied upon by the Crown as demonstrating a consciousness of guilt. The submissions, however, drew attention to the other possible explanations for the lies set out in the standard direction emanating from Edwards v The Queen (1993) 178 CLR 193.

6. [124]

   The appellant submitted that, more importantly, any lies told by the appellant were incapable of distinguishing between a consciousness of guilt of the offence of murder and some lesser offence of which the appellant may have been guilty. For example, any lies told by the appellant would be equally consistent with a consciousness of guilt of the offence of murder on the one hand or, for example, concealing a serious indictable offence on the other. In that way the evidence was "intractably neutral" and could not assist the jury in determining whether the appellant was guilty of the offence of murder or some lesser offence.

7. [125]

   In relation to the evidence of Mr El-Chami, senior counsel for the appellant submitted that the correct way to deal with this present ground of appeal was on the basis that the out of court statement (dealt with in grounds 2 and 3) was inadmissible. Senior counsel accepted that if the statement was admissible, the appellant would have some difficulties in establishing that the verdict was unreasonable, but that the matter was not foreclosed by a finding that it was admissible. Senior counsel submitted that the inconsistencies in Mr El-Chami’s evidence, particularly between what he had said in his first statement (MFI 5) and the later statement after the charge of murder against him had been withdrawn (MFI 4), meant that his evidence had little probative value.

8. [126]

   Senior counsel submitted that there were difficulties with the Crown case identifying when any joint criminal enterprise commenced. He pointed to the absence of any address to the jury on the issue of the appellant alone being responsible for the deceased’s death despite the written directions providing for a verdict on that basis.

9. [127]

   The Crown submitted that the case against the appellant was both direct and circumstantial. The direct evidence came from Mr El-Chami. The circumstantial evidence consisted of the matters under the 20 headings included in the Crown Prosecutor’s closing address to the jury. Those headings included the CCTV clips demonstrating that the appellant was present in the apartment with Mr Azar at relevant times when Mr El-Chami was shown as being outside the unit, the fact that the deceased’s body was on the floor and his feet at the door when Mr El-Chami tried to get back into the unit, the forensic evidence and the admissions made by the appellant to Mr El-Chami.

10. [128]

    The principles applying to the consideration of whether a verdict is unreasonable are well known and may be briefly stated. The question is whether, notwithstanding there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand: M v The Queen (1994) 181 CLR 487 at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. In answering the question this Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [23].

11. [129]

    There is no doubt that the Crown’s case against the appellant was heavily, though not solely, dependent on the evidence of Mr El-Chami. There were two significant aspects to Mr El-Chami’s evidence. The first was his evidence of what he saw the appellant do to the deceased. That evidence is set out in paragraph 8 of MFI 5 (at [40] above), and consists of Mr El-Chami’s agreement that he told the truth in that statement of 20 August 2013 (at [48] above). The second aspect of the evidence consisted of the admissions said to have been made by the appellant to Mr El-Chami recorded in paragraph 11 of MFI 5 (at [40] above), and which Mr El-Chami agreed was true (at [55] above). Those admissions form the basis for grounds 2 and 3.

12. [130]

    We have held, when dealing with grounds 2 and 3, that the admissions made by Mr El-Chami were properly admitted as proof of the truth of those statements. It was therefore part of the jury’s function to have regard to that evidence of Mr El-Chami in the light of inconsistencies in his evidence, particularly arising from what he said in his later statement (MFI 4).

13. [131]

    It was open to the jury to accept those parts of Mr El-Chami’s evidence even though they may have rejected what could be seen as later attempts to resile from that evidence, because the evidence was provided in a statement made at a time close to the events concerned. The jury might have accepted that, as Mr El-Chami said, when he was first interviewed he remembered things clearly but over the years he had forgotten: see at [49] above.

14. [132]

    It can be accepted that some of Mr El-Chami’s evidence was contradictory when differences between his statements were put to him, but it was nevertheless open to the jury to accept what was contained in his August 2013 statement. It cannot be said that the jury must have entertained a doubt about his evidence contained in that statement.

15. [133]

    When considering ground 4, we set out portions of the address of the appellant’s counsel at trial concerning the evidence of Mr El-Chami. Although counsel initially invited the jury to regard Mr El-Chami as unreliable and untruthful, counsel relied heavily on Mr El-Chami’s statement of 2016 (MFI 4) and his evidence in support of that statement. On a number of occasions he identified evidence of Mr El-Chami that accorded with that of the appellant. In that way, the jury were invited to look closely at Mr El-Chami’s evidence and to accept parts of it and reject other parts of it. The fact that they apparently accepted evidence in accordance with the 2013 statement rather than what was urged on them by the appellant’s counsel does not make the verdict unsafe.

16. [134]

    In any event, in paragraph 25 of the 2016 statement, Mr El-Chami said this:

17. [135]

    Both of those passages enabled the jury to conclude that the alleged joint criminal enterprise commenced at this point, and that both the appellant and Mr Azar were responsible for the deceased’s death.

18. [136]

    In a similar way, but in less detail, the Crown addressed the jury by highlighting both parts of Mr El-Chami’s evidence that accorded with other objective evidence in the case, particularly the timing of events as identified in the CCTV footage.

19. [137]

    When assessing Mr El-Chami’s evidence, and particularly the evidence he gave of the admissions made by the appellant, the jury had the CCTV footage which, in addition to supporting Mr El-Chami’s evidence of his absence from the deceased’s unit for about 20 minutes (this assertion had been made by him in his 2013 statement before the CCTV footage became available), showed clearly that the appellant and Mr Azar were inside the deceased’s unit alone with the deceased for various periods, but significantly for an eleven minute period before which the appellant is seen carrying a pole.

20. [138]

    The jury also had Mr El-Chami’s evidence, which was not disputed, that after being outside for about 20 minutes he had difficulty getting back into the unit because the deceased was lying on the floor with his feet towards the door. His face was badly injured. The deceased had clothes piled on top of him and the appellant was continuing to put clothes on top of him. The evidence from Mr Naylor was that the deceased was found in that position with clothes covering him.

21. [139]

    One of the items examined at the scene was a 62cm white hollow metal pole, or handle, found in the unit. The pole was bent and broken at both ends and there was apparent blood-staining along the length of the pole, concentrated at the bent end of the pole. Areas of friction ridge detail were developed from the pole.

22. [140]

    In relation to the print found at one area of the pole labelled F4, the crime scene officer, Melissa Zeglis, was asked (T100.50):

23. [141]

    It was suggested to her in cross-examination that she could not exclude the possibility that there was blood on the pole at the time that it was touched. She said:

24. [142]

    A swab taken from the fingerprint stain at marker F4 on the metal pole was tested for DNA. The DNA recovered from the swab was a mixture that originated from at least two individuals. The major component of the mixture had the same profile as the deceased. Due to the low level of the minor component further interpretation was not carried out.

25. [143]

    Detective Sergeant Nicole Smith of the Evidence Recovery Section carried out a comparison of fingerprints developed at the crime scene and on items from the scene, with the charge prints of Daniel Azar, Mohamed El-Chami and the appellant. Detective Sergeant Smith identified the prints at markers F2 and F4 on the white pole as right palm prints of the appellant. She also identified the print on the pole marked as F12 as the left ring finger of the appellant. A print on the tile surface of a broken table top (marked as F24) was identified as the right thumb print of the appellant. A print on the right hand side of the exterior of the front door of the deceased’s unit was also identified as the appellant’s left palm print.

26. [144]

    The effect of the evidence of Ms Zeglis and Detective Sergeant Smith is that the appellant had blood on his hand when he touched the pole and left the impression at marker F4. That evidence is indicative of the appellant’s involvement in the assault. So too was the evidence of the thumb print on the table when considered with Mr El-Chami’s evidence at [55] above, concerning the appellant’s admission of smashing the table over the deceased’s head.

27. [145]

    While the forensic evidence was not, of itself, determinative, when considered with the other evidence it provided support for the Crown case.

28. [146]

    Finally, the jury saw the appellant’s ERISP where he said that the last time he had seen the deceased was on Tuesday 13 August at about 7.30pm. He denied touching a metal pole found at the deceased’s unit. He admitted in his evidence that those were lies and that if he had told the truth he would have been implicated in the deceased’s murder. In cross-examination, he accepted, contrary to his evidence in chief, that he did not tell these lies because he was affected by drugs.

29. [147]

    Having considered all of the evidence, we do not have a reasonable doubt about the guilt of the appellant. In particular, it was a matter for the jury what of Mr El-Chami’s evidence ought to be accepted. It cannot be said that his evidence had little probative value, and it cannot be said that the jury must have entertained a doubt about the appellant’s guilt.

30. [148]

    This ground is not made out.

Conclusion

1. [149]

   The following orders should be made:

   1. (1)

      Grant leave to appeal in respect of ground 1.

   2. (2)

      Dismiss the appeal.