Balachandran v R

1. [1]

   WHITE JA: The applicant, Mr Sasikaran Balachandran, seeks leave to appeal from his convictions on 20 March 2017 of offences of wounding with intent to cause grievous bodily harm and affray. On 11 August 2017 the applicant was sentenced to a period of imprisonment of seven years with a non-parole period of four years and five months in relation to the wounding offence and to imprisonment for a period of 12 months for the affray offence, those sentences to be served concurrently.

2. [2]

   Mr Balachandran requires leave to appeal. I would grant leave. In these reasons I will refer to him as “the appellant” or “Karan” depending on context. In the evidence he was referred to from time to time as “Karan”, “Haran” or “Sasi”.

3. [3]

   It was the Crown case that on the night of 11 July 2015 the appellant stabbed a man by the name of Newton Antony (sometimes referred to in the evidence as Newton Anthony). I will refer to him as “Antony”. It was also the Crown case that the appellant punched a cousin of Antony’s, a Mr Bosco Kanavathipillai (to whom I will refer as “Bosco”) on the night of 11 July 2015.

4. [4]

   Antony was visiting friends at a house in 22 Veron Street, Wentworthville where Bosco lived with a number of other men of Sri Lankan background. On the night in question the appellant was attending a party with a number of other men of Sri Lankan background at the adjoining property of 20 Veron Street.

5. [5]

   It was the Crown case that the appellant entered 22 Veron Street through a gap in the fence and called for a man by the name of Kamal, who was at 22 Veron Street, to come out. There was evidence that there had been an incident the day before between Kamal and some other Sri Lankan men who lived at 20 Veron Street. It was the Crown case that Bosco told the appellant to leave, which he did, but came back about 10 minutes later with another man who has not been identified, again, looking for Kamal. It was the Crown case that Bosco and Antony told the appellant to leave and not to come in without permission, and there was some pushing, but, again, he left the house. It was the Crown case that about half an hour later, the appellant and another man, a Mr Gunathas Sinniah (sometimes referred to in the evidence as “Guna” or “Kuna” and to whom I will refer to as “Sinniah”) returned about half an hour later. It was the Crown case that Bosco went to the front of the house to speak to Sinniah and as he came down the front steps the appellant ran towards him and hit him in the head. It was the Crown case that Bosco was trying to defend himself when he was stabbed by Sinniah after which a number of other people set upon him.

6. [6]

   It was the Crown case that Antony went outside to see what was happening and saw Bosco being assaulted and went to intervene. The Crown alleged that the appellant was face to face with Antony and stabbed Antony to the front under his arm near his chest. It was the Crown case that Antony was then later stabbed by a second man (who has not been identified) and was then stabbed by Sinniah.

7. [7]

   The appellant denied assaulting Bosco or stabbing Antony. He said he acted as attempted peacemaker. He said that he attempted to stop Sinniah and Bosco from fighting but Antony intervened and put him in a headlock. He said that he did not have a knife or any other weapon and he did not see anyone produce a knife. He attempted to pull Sinniah away.

8. [8]

   There was no dispute that both Antony and Bosco were stabbed. (The appellant was not charged with the stabbing of Bosco.) Antony was seriously wounded and was not able to make any immediate identification of his assailant or assailants. On 9 August 2015 he identified the appellant as the person who had stabbed him when he saw the appellant on the other side of the road from his house taking photos with his phone. Antony rang the police immediately. On 15 September 2015 he selected the appellant in a photo identification parade as one of the men who had stabbed him.

9. [9]

   Bosco identified the appellant as the person who struck him on the head. A number of other witnesses gave evidence identifying the appellant as having assaulted Bosco and stabbed or beaten Antony. The identification evidence was the essential issue in the trial.

10. [10]

    Sinniah was initially charged with wounding Antony and Bosco with intent to cause grievous bodily harm. The charges against both Sinniah and the appellant were listed for trial in the District Court on 28 February 2017. On that day Sinniah pleaded guilty to wounding Antony with intent to cause grievous bodily harm and recklessly wounding Bosco. At that time the Crown advised the trial judge (Pickering SC DCJ) that it was not anticipated that Sinniah would be called in the Crown case. The appellant’s legal representatives did not ask the Crown to call Sinniah.

11. [11]

    The application for leave to appeal and proposed notice of appeal were filed on 2 October 2018. The proposed appeal was initially listed for hearing on 15 April 2019. That hearing was adjourned on the appellant’s application when the appellant (who had obtained new legal representation) foreshadowed amendment to the grounds of appeal. Leave to amend the grounds of appeal was not opposed. The amended grounds of appeal are:

12. [12]

    Ground 4 is not a free-standing ground of appeal. Rather, it foreshadows reliance upon new evidence and allegedly fresh evidence in support of ground 3.

13. [13]

    On the hearing of the appeal, the appellant called Sinniah to give evidence. There is an issue as to whether Sinniah’s evidence was fresh evidence, that is, evidence that was not available to the appellant at the time of the trial. For the reasons which follow, the evidence given by Sinniah on appeal was not fresh evidence, but new evidence. On the hearing of the appeal, the appellant also sought to rely upon police records and parts of records of interview of witnesses called for the Crown that were not put before the jury, evidently as a result of a forensic decision made by counsel appearing at trial for the appellant. There was no dispute that this evidence was not fresh evidence.

14. [14]

    The relevance of the distinction between fresh and new evidence was explained by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 (with whom Mason P and Levine J agreed) (at [63]) as follows:

15. [15]

    It is convenient to address the grounds of appeal by first summarising the relevant identification evidence given at trial. In doing so I will refer to the statements made by Crown witnesses in their police interviews that were not adduced at trial, but on which the appellant now relies as new evidence that, along with the evidence of Sinniah, he says should result in his acquittal.

16. [16]

    I will then address the trial judge’s summing-up which is ground 1 of the notice of appeal. I will then address grounds 3 and 4. Finally I will address what might remain of ground 2 that was only faintly pressed as an independent ground of appeal.

Summary of the Evidence

1. [17]

   In the course of the evidence those present on the night of 11 July 2015 were often described by shortened names or nicknames. As I have said, Antony was sometimes referred to as Newton and sometimes as Anthony. He was also sometimes called Baskaran or Baskar.

2. [18]

   As also noted above, the appellant was sometimes referred to as Karan, sometimes as Haran, and sometimes as Sasi.

3. [19]

   Sinniah was sometimes referred to as Guna or Kuna.

4. [20]

   A Mr Thayan Arulthasan was a resident of 22 Veron Street. He was often referred to as “Raji” or described as (or his name was mistranscribed as) “Regie”, “Reggie”, “Ragi” or “Reji”. I will refer to Mr Arulthasan as “Raji” or “Reggie” according to the context of the evidence or the summing-up.

5. [21]

   Mr Premkumar Seevratnam was a visitor to 22 Veron Street on the night of the stabbing. He is a brother of Bosco and a cousin of Antony. Mr Seevratnam was often referred to as “Prem” or “Kumar” by other witnesses. I will refer to him as “Kumar” or “Premkumar” depending on context.

6. [22]

   Mr Kapilthev Pathinthan was a resident of 22 Veron Street. He was frequently referred to as “Akash” and I will refer to him by that name.

7. [23]

   Mr Alfred Kamal was a visitor to 22 Veron Street. He was usually referred to as “Kamal” and I will so refer to him. Sometimes he was referred to in the evidence as “Kabilan”.

8. [24]

   Two other relevant witnesses were Mr Jenishan Gnaansekaran, to whom I will refer as “Jenishan” and Mr Dirushan Edward Francis, to whom I will refer as “Dirushan”. They both lived at 22 Veron Street.

9. [25]

   The police who attended 22 Veron Street on the evening of the incident were Detective Senior Constable Clements and Detective Hall. A third police officer who was not directly involved in the investigation was Senior Constable Patrick Anthonysamy (“Constable Anthonysamy”). He was a friend of Antony’s and spoke Tamil. He visited Antony in hospital on 13 July 2015. He knew another friend of Antony’s called Theepan who was also at the hospital and who took him to see Bosco in another ward.

Constable Anthonysamy

1. [26]

   When Constable Anthonysamy was visiting Bosco he was spoken to by Kumar. Constable Anthonysamy gave evidence that Kumar introduced himself to him and then said that he was a witness to the incident and sent him a photo by MMS to his mobile phone. Kumar told Constable Anthonysamy that the person in the photo had stabbed Antony. The photo was a photo of the appellant. Constable Anthonysamy forwarded that photo to the officer in charge of the investigation, Detective Clements.

Antony

1. [27]

   Antony gave evidence that he arrived at 22 Veron Street between 8.00pm and 9.00pm and was drinking whisky and eating food with Bosco and others. He said that they were interrupted at some point during the night by someone shouting insults in the Tamil language at Kamal. He said that the noise was coming from the backyard near the dividing fence. He later saw the person who was yelling for Kamal entering 22 Veron Street through the fence. That person entered the house by himself and came into the dining area. He described the person as being short, having an Asian complexion but fairer than his own, wearing a hooded jumper and a T-shirt. He said the T-shirt had black checks or black stripes and the man was wearing red pants. The man ran towards Kamal saying he wanted to hit Kamal but was restrained by Bosco. Antony grabbed him and told him to get out, which he did. About 10 or 15 minutes later the same man came through the fence with another person. The first man was called by Antony Person 1, and the second man was called Person 2. Antony said that Person 1 attempted to attack Kamal but was restrained by Antony. Person 2 was restrained by someone else. Both men were pushed out the back door. About 25 or 30 minutes later three persons entered through the front door. One of those was the first man Antony had told to get out; the man he called Person 1. The second person also returned and he was accompanied by a third.

2. [28]

   Antony said that Bosco got up and “grabbed them” and said “Come, let’s go out and talk”, and stepped outside and the three intruders went outside. Antony ran outside to see what was going on and he saw the three individuals beating Bosco. Antony said that he ran and grabbed Person 1 and was standing face to face with Person 1 when Person 1 pushed him and then stabbed him under his left armpit area. He said that Person 1 used his right hand to stab him. He said that the upper part of the knife was coloured silver. Antony said that he was pushed backwards to Person 2 who was standing beside him and that Person 2 punched him and then he was stabbed in the left shoulder area by Person 2 with a silver coloured blade. He was then pushed to the side and was grabbed and stabbed by Person 3. He was stabbed by Person 3 on the back to his left shoulder. Antony said that he was then pushed back to Person 1 who stabbed him again in the chest area on the left side.

3. [29]

   Antony said that he had not seen Person 1 before the night in question. He gave no evidence of having been introduced to Person 1. Antony lost consciousness and was taken to hospital where he was admitted to the Intensive Care Unit. He was in hospital for seven to eight days.

4. [30]

   On 9 August 2015 Antony was home and he saw Person 1 who had stabbed him, on the opposite side of the street in which he lived. Person 1 was taking some photos from a camera from his phone. He contacted the police and said that he had seen the person who had stabbed him come to the front of his house. On the following day he went to the police station and provided an electronically-recorded statement. The terms of that statement were not before the jury.

5. [31]

   On 15 September 2015 Antony attended the Merrylands police station and participated in a computer photographic identification procedure. From a selection of 20 photographs he identified the appellant as Person 1.

6. [32]

   After an overnight adjournment at the trial Antony gave further evidence-in-chief about seeing the man who had stabbed him outside his house on 9 August 2015. The transcript records the following evidence:

7. [33]

   After this answer there was a long pause before the Crown Prosecutor asked further questions.

8. [34]

   The recording of the evidence given at trial shows that the transcription of the last answer was not accurate. On listening to the recording what was actually said by Antony was as follows:

9. [35]

   Thus, the answer actually given by Antony was that a Patrick Anthonysamy was with him when he placed the 000 call on 9 August 2015. On appeal the appellant submits that the possibility or fact that Constable Anthonysamy was with Antony when he made the telephone call to the police on 9 August 2015 carries with it the possibility that Antony’s identification evidence was contaminated. It was submitted that when Antony participated in the photographic identification at Merrylands police station on 15 September 2015 he was merely identifying the person he saw outside his house whom Constable Anthonysamy might have said was the person involved in the stabbing.

10. [36]

    No such suggestion was put to Antony in Antony’s cross-examination. Nor was that suggestion put to Constable Anthonysamy. No questions were asked of Constable Anthonysamy, either by the Crown or by counsel for the appellant as to whether he was present on 13 August 2015 when Antony made his identification of the appellant.

11. [37]

    Constable Anthonysamy had given unchallenged evidence that apart from sending the email to Detective Clements (attaching the photo) he had no other involvement in the matter. Counsel for the appellant did not seek to recall Constable Anthonysamy.

12. [38]

    In his initial instructions to the jury, the primary judge observed that counsel appearing for the appellant was wearing headphones to assist his hearing. It may be inferred that neither the defence nor the Crown heard Antony’s answer that was misconveyed by the interpreter. It was not until immediately before the trial judge’s summing-up that the Crown Prosecutor raised an issue about the transcription of Antony’s evidence. After referring to the relevant transcript the Crown Prosecutor said that she did not know whether the transcript reference to “Patrick Anthony, Charmaine” was accurate or not. The Crown Prosecutor properly raised the point that if Antony had referred to Constable Anthonysamy, then it was known that he had been shown a Facebook photo of the accused. The Crown Prosecutor stated that her solicitor had a note where the reference was to “Patrick Anthony Schamille”. Counsel for the appellant observed that Antony did not say that the person was a police officer. The trial judge suggested that the parties could make enquiries overnight.

13. [39]

    No application was made by counsel for the appellant to recall either Antony or Constable Anthonysamy to investigate whether in some way Constable Anthonysamy’s presence on 9 August 2015 might have infected Antony’s evidence of his identification of the appellant.

14. [40]

    Antony said that he had not discussed with Prem (Premkumar) or Bosco what had happened.

15. [41]

    There was nothing in Antony’s recorded interview that materially differed from his evidence at trial. Both in his interview and at trial Antony referred to the appellant simply as “Person Number 1” and not by name. The appellant relies upon this as a ground for attacking the evidence of Raji (referred to below), that Antony had named the appellant by the name “Karan” at the scene as the person responsible for attacking him.

Bosco

1. [42]

   In his evidence-in-chief Bosco said that initially three men came from next door into the house at 22 Veron Street asking for Kamal. Bosco said Kamal was not there and they left. One of the men was a person Bosco was later told was Karan. He had not seen Karan before. He heard Akash call him by that name. At that time there was no physical altercation. Karan was wearing something like a T-shirt with black stripes. Karan left the premises but came back with another person. They were after Kamal but left when Bosco said that Kamal was not there and that they had better go.

2. [43]

   The next time someone came to the house was when Guna (Sinniah) came to the house. Bosco knew Guna by name and had seen him once before. Guna said “Bosco, come here” and accompanied him outside and asked Bosco why he did not allow Karan (the appellant) into the house when Karan came. Guna was wearing a black coloured T-shirt with a picture on it. As Bosco was moving towards a car two persons who were standing behind the car bashed him on the back of his head.

3. [44]

   Both Karan and the other person were standing close to each other but it was Karan who hit Bosco on the back of the head.

4. [45]

   Guna came towards him with a knife and he was stabbed by Guna. Bosco fell down and the three persons together were beating him up.

5. [46]

   Bosco said that “Karan right from the beginning was swearing by saying ‘Arsehole’ and then he hit me”. Antony (and only Antony) came outside and asked what was going on. Bosco saw his assailants beat Antony. Bosco was put in an ambulance and taken away to hospital. He recalled making statements to the police. On 15 September 2015 he participated in a computer identification procedure at Merrylands police station. He identified Karan, the appellant, as the person who came from behind and assaulted him.

6. [47]

   He later identified Guna as the person who stabbed him with the knife.

7. [48]

   In cross-examination Bosco said that the person he heard Akash call Karan was wearing a white shirt or jacket with black stripes.

8. [49]

   Bosco was cross-examined on a record of interview he gave to the police on 30 July 2015. It was put to him and he agreed that he told the police that two people came to the door first and they were in black T-shirts. It was put to Bosco that he did not tell the police that the person he knew as Karan had a white shirt on. Bosco said that he did say to the police that Karan had a white shirt and that Guna was wearing a black shirt.

9. [50]

   It was put to Bosco that at no time in his record of interview did he say that Karan was the one who came to the house. Bosco denied that and said that “I consistently said that it was Karan who came. At the police I also said that it was Karan who came”.

10. [51]

    The record of interview was not tendered. Bosco maintained that “I said to the police that it was Karan. I also said the other person was Guna, and I also said that the other person I didn’t know who he was”.

11. [52]

    Bosco was cross-examined on the statement that he made to the police when he was asked whether “[o]ut of the other people that were outside, did you recognise any of them?” and he said “I don’t know”. Questions and answers from the record of interview were read to him in which he told the police that it was some person other than Guna who hit him and he told the police that a lot of people came and hit him and assaulted him. His answer to the police that “I don’t know who hit me and who didn’t” was read to the jury.

12. [53]

    There was an objection to the cross-examination on the basis apparently that it was unclear as to whether the record of interview was referring to a particular time or stage of hitting which had not been clearly identified in counsel’s questions to Bosco. Ultimately, the questions and answers in his police interview were read to Bosco. Bosco then gave the following evidence:

13. [54]

    Bosco was cross-examined on his evidence that the same three people who had beaten him beat Antony when Antony came out (at [46] above). He was cross-examined about answers he gave in the record of interview (questions 88ff). Questions and answers were read to him in which he was asked whether he saw who attacked Antony and answered:

14. [55]

    He was asked in the record of interview whether he saw Antony being stabbed and said “I don’t know who was hitting and stabbing. I don’t know. A lot of people were there. So I didn’t see. Then he fell down next to me.” That question and answer were put to Bosco in cross-examination.

15. [56]

    On appeal, Mr Dalton SC (who did not appear at trial) referred to other parts of Bosco’s ERISP transcript that were not adduced in evidence at the trial. The most significant of these was Bosco’s answer to question 6. The record of interview was as follows:

16. [57]

    In this answer Bosco said that not only did Guna stab him, but that Guna also hit him on the back. However, later in the interview he said (in answer to question 73):

17. [58]

    This was consistent with the evidence Bosco gave at trial, except at trial, but not in the record of interview, Guna identified the appellant as the person who hit him. The fact that in his record of interview Bosco did not identify the appellant as the person who hit him was the subject of the cross-examination at trial.

18. [59]

    It was specifically put to Bosco in cross-examination that he was not struck in the back of the head by the appellant. Bosco reiterated that the appellant hit him.

Raji

1. [60]

   Raji was a resident of 22 Veron Street. He said that nine men lived in that house; and named himself, Akash, Ravi, Vinot, Bosco, Dirushan, Rogan and Jenishan. He and Antony came to the house at about 6.00 or 6.30 pm. Others in the house were watching a movie. Later, Bosco and Prem (Premkumar) came. Raji went to his room to have a sleep. His room had a window facing onto the front of the property where the stabbing later occurred. He was woken up by a loud noise with someone shouting in Tamil “This is the house of Akash. I need to go in.” Looking out the window he saw a large group of people at the front of 22 Veron Street pushing each other.

2. [61]

   He quickly changed and ran outside and saw that Bosco was holding out a bleeding hand that looked as if it had been stabbed. He saw people fighting with Antony. Antony was in the middle and two persons were on his sides. One was a person whom he was later told was Guna. The other was Karan. He knew Karan from having seen him at a church at Toongabbie he attended. He saw Karan and the other man (Guna) using a punching or stabbing motion to Antony. He ran to Antony. Karan attempted to stab him as he attempted to lift Antony. When he pushed Karan away, Karan had a knife in his hand. The knife Karan was holding was the kind of knife used in a kitchen.

3. [62]

   Raji said that as he was lifting Antony and moving him back towards the house Antony said to him that Guna and Karan had stabbed him.

4. [63]

   In cross-examination Raji repeated that Antony said that Guna and Karan had stabbed him. When asked who was present when that happened, he identified Dirushan and Ravi as having been present. Ravi was not called.

5. [64]

   Raji confirmed in cross-examination that the appellant was wearing jeans and a black jacket and there was no white on the jacket at all. He was adamant that Sinniah was wearing similarly coloured attire.

6. [65]

   Raji also identified the appellant as a man who stabbed Antony in a photo identification parade on 24 October 2015 and a further photo identification parade on 29 February 2016.

7. [66]

   Raji admitted in cross-examination that the reason that he came to know that Guna had stabbed Bosco was because he had heard that from a friend of Bosco’s whom he had seen at the hospital the next day. Raji did not know that person’s name. He overheard Bosco’s friend’s say “Guna stabbed Bosco”. This evidence would not affect the credibility of the evidence Raji gave at trial, except for the matter referred to below (at [69]-[71]). Raji did not say that he saw Guna stab Bosco. All he said was that he saw Bosco was bleeding. Raji’s admission that he heard someone say Guna had stabbed Antony does not affect the credibility of his evidence that he saw the appellant using a punching or stabbing motion towards Antony, holding a knife and attempting to stab him.

8. [67]

   Raji’s evidence at trial that he pushed the appellant away and the appellant tried to stab him was not mentioned in his ERISP. No reference was made to this at the trial. This does not affect the main thrust of Raji’s evidence.

9. [68]

   In cross-examination it was put to Raji that he had said in his interview to the police that he had heard that at some time Guna had stabbed Bosco. Counsel for the appellant at trial put to Raji a question he had been asked in his police interview, namely “how do you know that Guna had a knife?”, and his answer “because I heard that Guna was the one that stabbed Bosco”. Raji initially denied saying that and said he did not know whether it was “miswritten”. It was only when the video of the interview was played that Raji said “this one I came to know after being told when he was in the hospital.”

10. [69]

    Raji denied telling the Crown in conference that he had seen Guna holding a knife.

11. [70]

    The Crown’s instructing solicitor deposed that through an interpreter Raji said he had seen Guna holding a knife. Raji put this down potentially to a misunderstanding by the interpreter because the interpreter’s notes were not read back to him.

12. [71]

    This is potentially relevant to Raji’s credit. But there is no doubt that Guna did have a knife. Raji’s denial that he saw Guna with a knife might have had the potential (in Raji’s mind) to implicate the appellant in both stabbings. But the objective relevance of this evidence (other than as to Raji’s credit) disappears given there was no dispute that Guna stabbed both Bosco and Antony.

13. [72]

    Raji denied talking to Bosco or Antony about what happened.

Kumar

1. [73]

   Premkumar Seevaratnam (Kumar) is Bosco’s cousin. He was not a resident of 22 Veron Street. His evidence was to the following effect.

2. [74]

   Kumar arrived at 22 Veron Street with Bosco on Saturday evening between about 8.00 pm and 8.30pm. Later that night he heard a noise where someone was calling for Kamal. The man calling for Kamal opened a glass door. At that time Kumar did not know that person’s name. He had seen him before in Pendle Hill when Kumar was with Akash. Akash said to him “Karan, come in. Karan why have you come?”.

3. [75]

   Karan asked Kamal to come out to talk. He was somewhat angry. Karan was wearing a jacket. He did not specify the jacket’s colour. Bosco demanded that Karan leave. Karan grabbed Kamal by the hand saying “Come out”. Antony grabbed him and took him out of the door. Karan then left and went back through the fence to the other property. He came back about 15 minutes later. He came back a second time and was escorted outside by Bosco and Antony. Bosco threatened to bash him if he came back.

4. [76]

   After this, Sinniah arrived. Kumar was familiar with Sinniah. He had seen him on two previous occasions. Sinniah was wearing a short-sleeved T-shirt that was black with some white pictures on it. Sinniah did not come into the house, but stood outside on the doorstep and Bosco went out to meet him. Five or six minutes later Antony followed.

5. [77]

   The next thing Kumar remembered was a young man called “Kaji” (semble Raji) running into the house and yelling that there was a fight outside. When Kumar got outside he observed Bosco clutching his hand. He asked Bosco what had happened but received no reply. Nearby, Antony was standing up holding his left hand to his chest. He asked Antony “what’s up?”. Antony pointed at Karan and said “He beat me up. Whether it was beat me or stabbed me or stabbed, what I understood was beat.” Antony’s speech was not easily comprehensible. Antony did not mention a name but just pointed.

6. [78]

   Kumar lunged at the appellant and grabbed him but then other persons, including Jenishan, intervened and assaulted him.

7. [79]

   As noted above, during the trial the Crown ascertained and disclosed that when Constable Anthonysamy visited the hospital in the early morning of 13 July 2015, he obtained and forwarded to Detective Clements a photograph of the appellant. Constable Anthonysamy said that Kumar sent him the photograph. He said that Kumar introduced himself to him and said that he was one of the persons who witnessed the incident and Kumar sent a photograph from his phone to Constable Anthonysamy’s mobile phone. Kumar said that the person in the photo was one of the persons who stabbed Newton.

8. [80]

   Constable Anthonysamy was visiting the hospital in his capacity as a civilian. He was a friend of Antony’s. He was not in police clothes. But Kumar knew that he was a police officer.

9. [81]

   Constable Anthonysamy forwarded the photograph to the officer in charge of the investigation (Detective Clements). The photograph became Exhibit S in the trial.

10. [82]

    Kumar denied showing the police anything on his mobile phone and denied sending an email or a text message to the police officer. (On the voir dire, Constable Anthonysamy said that the photo must have been sent to him either by text or email. In his evidence before the jury he said that the photo was sent as an MMS.) Kumar agreed that he had been shown photographs of the appellant by Akash. He said that he did not tell anyone that he had seen the photograph and did not ask anyone to send that photograph to the police. He said that he never showed the police officer a photograph at the hospital.

11. [83]

    Kumar said he did tell Constable Anthonysamy that Karan had stabbed Antony but agreed he did not see Karan stabbing anyone.

Akash

1. [84]

   Akash (Mr Kapilthev Paththinathan) was a Facebook friend with the appellant. He said that he showed a photograph of the appellant as a member of a soccer team to Kumar, but did not show him the particular photograph that was sent to Constable Anthonysamy (Exhibit S).

2. [85]

   The evidence of Akash and Kumar is impossible to reconcile with the apparent fact that the photograph which became Exhibit S was sent by Kumar to Constable Anthonysamy, unless Constable Anthonysamy was sent the photograph by someone else (contrary to his evidence).

3. [86]

   Akash did not give evidence implicating the appellant in the infliction of injuries. He gave evidence consistent with the evidence of other witnesses that the appellant came to the house on a number of occasions looking for Kamal and, on the third and final occasion, looking for Bosco. He said that the appellant found Bosco and went outside to speak with him. Antony followed. Akash described the appellant as “pushing Kamal” by which he meant challenging or provoking him. This evidence, although not directly implicating the appellant in the later fight was inconsistent with the appellant’s evidence that his role on the evening was that of peacemaker.

4. [87]

   Akash remembered someone running into the house to say that fighting was taking place outside. When he went outside Antony was lying on the ground holding on to his stomach. Antony did not tell Akash who was responsible for his injuries.

Jenishan

1. [88]

   Jenishan Gnaansekeran (Jenishan) was a resident of 22 Veron Street. He knew Guna (Sinniah). He also knew the appellant (Karan).

2. [89]

   Jenishan made a statement to the police that was an exhibit at the trial (Ex 1). The statement was made on 12 July 2015, the day after the stabbings. The statement was taken by Detective Senior Constable Hall (AB 324). An interpreter was present when the statement was made. The statement included the following:

3. [90]

   The reference to Kuna was to Sinniah.

4. [91]

   In his evidence at trial, Jenishan gave a description of what he saw out the front of 22 Veron when he was on the porch:

5. [92]

   Jenishan said that he saw the three persons together beating Antony. He did not see any weapons. Newton fell to the ground and Jenishan saw that he had been stabbed. Karan was wearing a long-sleeved T-shirt with something like a jacket.

6. [93]

   Jenishan was cross-examined on his police statement of 12 July 2015. He clarified that it was Bosco who first answered the door. He also said that the statement was mistaken insofar as it recorded his saying that he did not see anyone else touch Antony during the fight. Initially he said this was because he in fact saw Sinniah beating Antony (which suggests some confusion) but later said that he told the police three persons were fighting. He disavowed the proposition that the statement recorded the true version of events and suggested there might have been an error on the part of the interpreter. Jenishan insisted that he told police on that night that the appellant was involved in the fight with Antony.

7. [94]

   On 14 January 2016 Jenishan participated in a computer photographic identification procedure and selected photograph no. 12, being a photograph of the appellant. He later participated in another computer photographic identification procedure and selected the photograph of Sinniah.

Dirushan

1. [95]

   Dirushan Edward Francis (Dirushan) was also a resident of 22 Veron Street. He had known the appellant for about a year before the day in question. During the night the appellant came through the back door calling for Kamal. Bosco told Kamal not to go out. Karan (the appellant) had a drink. At some point Karan left. After he left another young man came to the front entrance of the house. He said “Kamal, come out”. Antony told him to get out which he did. Then Guna came in through the back entrance.

2. [96]

   The Crown Prosecutor was given leave to cross-examine Dirushan on his record of police interview of 11 February 2016. Dirushan agreed that Antony told Karan not to come inside and closed the back door. He said that Karan continued to knock at the back door and Bosco went to him and asked him not to shout and to leave. In cross-examination Dirushan agreed that when Karan asked for Kamal he did so in a friendly manner. Dirushan said that the appellant was wearing a full-sleeve white coloured jacket.

3. [97]

   Dirushan said that “Kajee” (semble Raji) ran into the house and said that there was a fight. He ran out with others. He saw Bosco holding his hand which was bleeding. He saw Karan and Guna beating Newton. Guna was standing behind and Karan was standing in front and beating Antony. He did not see anyone with a weapon. He ran up to Bosco and said “They’re beating up Newton”. Bosco said that he could not deal with it because of his hand and asked Dirushan to “go and hold”. Dirushan ran and pushed Karan away. Karan and Guna then ran away. On 11 February 2016 Dirushan participated in a computer photographic identification procedure and selected photos identifying the appellant and Guna.

4. [98]

   Dirushan said that he said to Kamal “They came looking for you. Why did they come?”, but otherwise did not discuss with his friends who had attacked Antony and Bosco.

Detectives Clements and Hall

1. [99]

   Detective Senior Constable Clements went to 22 Veron Street at approximately 11.20pm on 11 July 2015. He went with Detective Hall. They did not have the assistance of an interpreter. Detective Clements was asked whether a name was given to him of a person who may be responsible. He said that was the case. The name given to him was “Guna”. Jenishan gave him information as to where Guna lived. He and Detective Hall took Jenishan to that given address. In cross-examination Detective Clements accepted that he had difficulty communicating with the people at 22 Veron Street because they did not speak English. They mentioned the name “Guna”. So far as Detective Clements recalled, they did not mention any other name. It was not until after 9 August that Detective Clements first found out that the appellant might be a suspect.

2. [100]

   Detective Hall gave evidence to the same effect. He said that they spoke to the occupants in the house as a group. Jenishan spoke the best English out of all of the group, but the English of everyone present was very poor. Somebody mentioned the name Guna.

The appellant

1. [101]

   The appellant gave evidence that at the time of the incident he lived with Sinniah and some others in Pendle Hill. He said that he was attending a birthday party on the night of the incident in a house neighbouring 22 Veron Street. He gave evidence that at some point during the night, Akash came from 22 Veron Street and demanded to know who was calling for Kamal. According to the appellant, nobody was calling for Kamal and in fact the name being called was “Tamil”, a person attending the birthday party at 20 Veron Street.

2. [102]

   The appellant said that he knew Akash, and that the two were friends. He said that he acceded to Akash’s request that he come with him to 22 Veron Street and explained to its occupants that nobody was calling for Kamal. The appellant said that he followed Akash through the gap in the dividing fence, and that Akash let him into the house, where he saw a few people drinking. He recognised some of these people – Bosco, Raviraj, Kumar and Kamal. He also said that Antony was there but at the time he had not known Antony’s name.

3. [103]

   The appellant said that he was good friends with Kamal. He said he went up to him and told him that nobody had been calling for him, and that they were in fact calling for someone called Tamil. The appellant said that Kamal offered him a drink and talked with him for a while. He said that he took his shoes off and entered the house. The topic of conversation between them moved to a falling out Kamal had had with someone called Mayuran, who was attending the birthday party next door at 20 Veron Street. According to the appellant, Kamal then inquired whether the appellant might call Mayuran so that Kamal could apologise to him. The appellant said that he told Kamal that he thought it was best that they discuss the matter the following day.

4. [104]

   The appellant said that Kamal went to 20 Veron Street in spite of his advice. The appellant said that he went with him. He found Mayuran and told him that Kamal had come to apologise to him. The trio met together in the presence of some other people, but the apology did not go to plan – Kamal did not like what Mayuran had to say in response to the apology, and he went back through the dividing fence onto 22 Veron Street. Mayuran was not called.

5. [105]

   The appellant said that at this point he realised that he had left his shoes on 22 Veron Street, and so he want back through the dividing fence to retrieve them. He found his shoes, but as he was putting them on, Mayuran and someone called Ranajan came through the fence onto 22 Veron Street. The appellant said that Mayuran wanted to speak to Kamal again in order to apologise for what he had said to him moments earlier. The appellant said that he knocked on the back door, and was greeted by an agitated Bosco. He said Bosco grabbed onto and held his collar and pushed him, after which the appellant left back through the dividing fence.

6. [106]

   The appellant said that he went back into the neighbouring house and served himself some food. Everyone on 22 Veron Street was now standing out the front of house, smoking cigarettes and talking. Sinniah was with them. According to the appellant, it was around this time that an argument broke out between the people standing outside on the street:

7. [107]

   The appellant said that he did not see a knife at any stage, nor did he have one with him. He said the only person he hit was Kumar, whom he hit on the hand. He denied stabbing anybody. The appellant said that after he was put in a headlock Guna shouted “Leave him.” Guna grabbed him by the collar and said “You shouldn’t be standing here, you need to come with me” and dragged the appellant away. Guna said that he was drunk and needed the appellant to take him home. The appellant walked with Guna until they reached a shop where they bought some food. They obtained a lift from the shop to their home in Pendle Hill. The appellant removed his clothes because they were wet from the rain. He went to sleep.

8. [108]

   The appellant maintained his version of events in cross-examination. He said he did not have any blood on him and he only heard that someone had been stabbed when he arrived home. He denied running away. He left with Guna because Guna was drunk and wanted the appellant to take him home.

9. [109]

   In cross-examination it was put to the appellant that he did not know Antony. The appellant said “I actually shook his hand because Kamal introduced me. First time.”

Ground 1: The Summing-Up

1. [110]

   The trial judge provided a detailed summing-up of the evidence in relation to identification. That part of the summing-up occupies approximately 50 pages of transcript. The first ground of appeal is that the trial judge’s summing-up failed adequately to balance the defence case and the Crown case, and this resulted in a miscarriage of justice.

2. [111]

   The Crown accepts that there were occasions during the summing up when the trial judge made comments that raised possible arguments or views of the evidence that were not referred to either by the Crown Prosecutor or the appellant’s counsel in their closing addresses. There were two such instances. The first concerned Raji’s evidence that Antony identified the appellant by name (Karan) as his attacker where Antony had not previously known the appellant. The trial judge reminded the jury that there was evidence from the appellant that he had been introduced to Antony, although this had not been raised in the Crown’s address.

3. [112]

   The second instance is referred to at [161] below.

4. [113]

   At the beginning of the summing-up the trial judge directed the jury that:

5. [114]

   The trial judge prefaced the standard direction on identification by saying that his directions should not be thought of as giving any indication of what he thought about the reliability of any of the evidence of the identification witnesses (whom he identified), but rather to make sure that the jury considered what was relevant to the assessment of the reliability of the identification witnesses. He emphasised that the jury’s assessment as to whether those witnesses were truthful and reliable was their function and not his. He then gave a standard direction in relation to identification, including that the evidence of the witnesses who had identified the accused must be approached with special caution before it could be accepted as reliable and that even if the jury thought that any of the particular witnesses were impressive, persuasive or were convinced that they were correct and were considered to be honest, still, the reliability of their evidence had to be approached with special caution. The trial judge concluded this part of the summing-up by saying:

6. [115]

   The standard direction which the trial judge appropriately followed includes direction that two or more honest witnesses can be just as mistaken as one.

7. [116]

   This was a favourable direction for the appellant. The chances of five (or six) people mistakenly identifying the appellant as a person who stabbed Antony would only be no less than the chance of one person having so mistaken him if the possibility of mistake were common to all and each was equally or wholly (depending on circumstances) susceptible to that mistake. If the chance of mistake were random, the chance of all five being mistaken would be small (depending upon the probability of the chance of mistake). If the chance of mistake for each witness were 40 per cent and the chance of mistake were random, then the chance of two being mistaken would be 16 per cent, and so on.

8. [117]

   The trial judge then dealt with the evidence of Antony whom he described as the most important witness. The trial judge said:

9. [118]

   The trial judge then addressed what opportunity, or lack of opportunity, Antony had to make observations of the person he referred to as “Person Number 1” whom he ultimately identified from the identification board. The directions in relation to Antony’s opportunity for observation were balanced and not subject to attack, except in one respect. On the opportunity for observation, the trial judge referred to the lighting. The trial judge directed the jury:

10. [119]

    The trial judge said:

11. [120]

    The appellant challenged the trial judge’s statement that “... at no stage did Newton Antony or any other witness suggest that he could not see anything that occurred.” He submitted that neither the Crown nor the defence asked any questions along these lines. Nor did the Crown make any submission to the jury to this effect.

12. [121]

    But this observation was uncontroversial. It is not suggested that any of the witnesses suggested that they could not see what had occurred. They all reported their observations. No further direction was sought. Had it been sought then the jury would have been reminded of evidence given by Antony that although it was dark, the person could be identified and there was a streetlight against which the person was clearly visible, to Bosco’s evidence that he could see the colour of the knife with which he was stabbed in the light, and to Kamal’s evidence that when he saw him Antony was coming from the middle of the road where he had been stabbed to the side of the road, and there was some light from the streetlight in the middle of the road.

13. [122]

    The next criticism of the summing-up was the trial judge’s summary of evidence given by Bosco in relation to the stabbing of Antony. The trial judge said:

14. [123]

    The appellant submitted that this was an expression of a strong opinion by the trial judge that was bereft of any claim that it was the opinion of the Crown Prosecutor. The appellant submitted that in this passage the trial judge expressed his own opinion that the appellant stabbed Antony.

15. [124]

    But it is clear from the context of the summing-up that the trial judge was here referring to the strength of Bosco’s evidence in the Crown case against Antony if Bosco’s evidence were accepted. The trial judge immediately went on to address the reasons the jury might not accept Bosco’s evidence. These included whether the appellant was a stranger to Bosco, what opportunity Bosco had to make observations about the appellant, whether Bosco had a reason to focus his attention on the appellant, what the lighting was like, whether there was any special reason for Bosco to remember the appellant, whether Bosco was under stress or pressure, having himself been stabbed, and the fact that when initially asked in hospital about the event, he did not say anything to the police specifically about Karan.

16. [125]

    The appellant submitted that the trial judge failed adequately to put to the jury the defence criticism of Bosco’s evidence, that he had participated in a record of interview two days after the incident where he made no mention of the appellant’s having struck him on the head or of seeing the appellant attacking Antony.

17. [126]

    But the trial judge directed the jury that:

18. [127]

    I do not accept that the trial judge dealt with what the appellant called the “fundamental criticism of the reliability and credibility of Bosco’s evidence” in an offhand way.

19. [128]

    The appellant submitted that the trial judge introduced Raji’s evidence in almost identical terms to that of Bosco. (In the transcription of the summing up Raji is called Reggie and I will so refer to him in this part of my reasons.) The trial judge directed the jury:

20. [129]

    It is clear, and would have been clear to the jury, that the trial judge was referring here to the importance of Reggie’s evidence, if that evidence were accepted. The trial judge went on to address matters relevant to whether Reggie’s evidence should be accepted, including his opportunity to make observations, his familiarity with the appellant, whether he had any special reason to remember the appellant, and whether he was under any stress or pressure at the time.

21. [130]

    The appellant took no issue with the trial judge’s directions as to Reggie’s opportunity to accurately identify the appellant. The Crown referred to those directions as demonstrating that considered as a whole the trial judge’s directions were not slanted in favour of the Crown. The trial judge reminded the jury that Reggie had less opportunity than others to make observations of the appellant because Reggie had been in his room and asleep before the incidents in question. The trial judge said “So he basically came out into the dark and started observing things for the first time on that particular evening, so you must take that into account whether that impacts upon his reliability.” The trial judge then addressed Reggie’s opportunity to make observations of the appellant once he got outside. The trial judge directed the jury:

22. [131]

    That is an unexceptional statement of the facts if Reggie’s evidence is correct. The trial judge then directed the jury:

23. [132]

    The trial judge then referred to Reggie’s having identified the appellant in the photo identification procedure on 27 October 2015 and said:

24. [133]

    As the Crown submits, the trial judge was there highlighting how a witness might be mistaken when identifying a person in one context having seen that same person in another context.

25. [134]

    The appellant’s principal complaint concerned the directions which immediately followed. The trial judge said:

26. [135]

    The appellant accepts that he gave evidence that he was introduced to Antony (and others) earlier in the evening. He says that there was no evidence in the trial that he was introduced as Karan and there was no evidence that Antony knew the appellant by the name of Karan.

27. [136]

    The trial judge went on to direct the jury as follows:

28. [137]

    The appellant submits that as with the trial judge’s direction concerning Bosco’s evidence, the trial judge expressed his own strong opinion to the jury that Reggie’s evidence was strongly supportive of Antony’s evidence of being attacked by the appellant. The appellant says that the opinions expressed were not introduced in the usual way as being “the Crown submits ...” but were the statement by the trial judge of his own opinion of the strength of the Crown case.

29. [138]

    As with the attack made on the summing-up in relation to Bosco’s evidence, it is clear that the trial judge was saying that Reggie’s evidence, if accepted, would be strongly supportive of Antony’s evidence. The trial judge said “So his evidence is particularly important in that for counts one and two, it would be strongly supporting of what Newton Antony said ...”.

30. [139]

    The appellant submitted that there was no evidence that Antony, before he was stabbed, knew the appellant by the name Karan. When the Crown elicited evidence from Antony it referred to the appellant as “person no. 1”. Although the appellant gave evidence that he was introduced to Antony, the appellant submitted that there was no evidence that he was introduced as Karan. Nor did Antony give evidence that at the time he was stabbed he knew the appellant by the name of Karan.

31. [140]

    I do not accept that there was no evidence that Antony had learned that the appellant was called Karan. Although Antony did not give evidence about that matter, there was overwhelming evidence that that was the name by which the appellant was generally known amongst his friends and acquaintances and the appellant said that he had been introduced to Antony that night. If the appellant’s evidence is correct, it can be inferred that he was probably introduced to Antony as Karan.

32. [141]

    It is true that this was not a point raised by the Crown in the Crown’s address. In her address the Crown Prosecutor said:

33. [142]

    This is not an issue to which the observations of Payne JA in Mulholland v R [2018] NSWCCA 299 (at [52]) apply. His Honour (with whom Schmidt J agreed) said (at [52]):

34. [143]

    There is no reason that a trial judge cannot remind the jury of evidence given at the trial, albeit that that evidence might not have been referred to in the submissions of either the Crown or the accused. To do so is not inconsistent with judicial impartiality. The Crown or the defence, or both, could have advanced an argument to the jury about the evidence to which the trial judge referred. They both had the opportunity to do so. This is not the kind of argument advanced by the trial judge in Mulholland v R and in R v RTB [2002] NSWCCA 104 which involved speculation about possibilities where the parties did not have the opportunity to either disavow or to meet the argument advanced by the trial judge.

35. [144]

    No issue is taken with the trial judge’s statement that the accused gave evidence that he introduced himself to Antony, whereas the evidence was that he was introduced to Antony by Kamal. Nor was any issue about this taken at the trial.

36. [145]

    In the direction which immediately followed the impugned statement as to the evidence given by the accused concerning his introduction to Antony, the trial judge pointed out that this evidence was different from that of any other witness. The trial judge reminded the jury that Kumar had said that Antony pointed at Karan. The judge fairly posed to the jury the question “If he [Raji] is mistaken about [Antony] uttering the words ‘Guna and Karan’, does that make him more unreliable or mistaken? It is a matter for you to consider.”

37. [146]

    The trial judge returned to the evidence of Antony’s complaint to Raji that Karan had stabbed him later in his summing-up. After directing the jury as to the potential relevance of immediate complaint the trial judge said:

38. [147]

    This was a balanced direction that pointed out to the jury that even if Antony had identified the appellant by name to Raji as his attacker, Antony may have been mistaken in thinking that the appellant had attacked him rather than playing the role of peacemaker.

39. [148]

    Raji’s evidence was that he did not see Guna (Sinniah) with a knife. In cross-examination he was asked whether he agreed that he had told the Crown Prosecutor and a solicitor from the Director of Public Prosecutions “last Monday” that he saw a knife in Guna’s hand. He denied telling them that. The DPP’s solicitor provided an affidavit of a conference she attended with Raji and the Crown Prosecutor and a Tamil interpreter on Monday, 27 February 2017. She deposed that during the conference the Crown Prosecutor asked Raji “Where were you when you saw Newton”, and that Raji responded with a narrative of events which were interpreted by the interpreter and at the end of the narrative response, the interpreter said “I saw a knife in Guna’s hand.” She made a note of that statement.

40. [149]

    In his interview with the police Raji had said that he had only seen the knife that Karan had and he did not see what Guna had. Raji’s evidence at trial was consistent with his evidence in the police interview. The notes of conference were not read back to him.

41. [150]

    The trial judge addressed this issue as follows:

42. [151]

    The appellant submitted that this substantially diminished the defence’s submission and enhanced the submission of the Crown. I agree with the Crown’s submission that the trial judge’s statement was simply a matter of common sense.

43. [152]

    Of more significance in assessing Raji’s credit is that he did not tell the police at the scene that Karan had stabbed Antony. That was addressed by the trial judge in a way which is not challenged but which shows the balance of the summing-up with the trial judge concluding “... you are entitled to wonder: is it important to his reliability and truthfulness that he did not tell police at the scene that it was Karan?”

44. [153]

    In summing up the evidence of Kumar the trial judge said:

45. [154]

    The appellant submitted that in her address to the jury the Crown Prosecutor made no submission along the lines of the “flow on” effect.

46. [155]

    It is true that the Crown Prosecutor did not use those words, but the Crown Prosecutor did summarise Premkumar’s evidence that Antony told Premkumar something like “He beat me up”, and was not sure whether Antony said “beat” or “stab” and though Antony did not mention a name, he pointed. In her address the Crown Prosecutor said:

47. [156]

    In the context of the trial judge’s summing-up, his Honour was not suggesting that the jury should necessarily accept Premkumar’s evidence. Rather, he was saying what would flow if Premkumar’s evidence were accepted. This is clear from passages which follow in which the trial judge addressed Premkumar’s opportunity to identify the appellant and whether there was any reason for him to focus his attention on the appellant, and whether the jury was satisfied as to the reliability of his identification of the appellant.

48. [157]

    After identifying other issues, including Premkumar’s denial of having forwarded a photograph of the appellant to Constable Anthonysamy (a direction about which no complaint is made) the trial judge said in a passage which is challenged:

49. [158]

    The appellant had denied that Premkumar came out and ran at him and wrestled him to the ground and said nothing like that happened at all.

50. [159]

    The appellant submitted that the trial judge here undermined the defence submission in two ways. First, by pointing out to the jury that the appellant’s evidence was that Premkumar never tackled him, and secondly by providing a number of reasons why the appellant would not have pulled a knife on Premkumar.

51. [160]

    But the trial judge did not undermine the defence case by referring to the appellant’s evidence that he had not been tackled by Premkumar. Even if that did undermine the defence case, the trial judge was entitled to remind the jury of the evidence the appellant had given. The trial judge raised for the jury’s consideration that Premkumar’s evidence that he had tackled the appellant could be rejected. This could have affected the jury’s assessment of Premkumar’s credibility generally.

52. [161]

    As to the possible scenarios ventured by the trial judge as to why the appellant might not use a knife on Premkumar if he had a knife in his possession and had used it on Antony, the Crown does not dispute that such possibilities were not raised in the Crown’s submissions to the jury. In this instance the trial judge was raising matters of speculative possibility rather than addressing the evidence. In this the trial judge erred. It does not follow that when the directions are considered as a whole there was a miscarriage of justice.

53. [162]

    No complaint is made of the trial judge’s directions concerning the evidence of Akash.

54. [163]

    In relation to Jenishan, the trial judge said:

55. [164]

    As noted above, in his evidence Jenishan said that he saw the appellant attacking Antony. His statement, made to the police the day after the stabbing, was taken with the assistance of an interpreter on the telephone. As the trial judge reminded the jury he made no mention of the appellant at all and said that there was a fight between “Guna (Sinniah) and Baskar (Antony)” and “I did not see anyone else touch Baskar during the fight.”

56. [165]

    The appellant criticises the direction on the basis that it was the trial judge himself who postulated that “something has got lost in the translation”. The appellant submitted that that inference was not available.

57. [166]

    That is not a fair criticism. The trial judge was summarising for the jury the evidence of Jenishan and saying that Jenishan’s evidence was that something had got lost in the translation. That was Jenishan’s evidence. In cross-examination Jenishan said that the sentence in his statement that he did not see anyone else touch Baskar during the fight was not correct. He was asked why he did not tell the police officer that it was wrong. Jenishan said “... this one was taken in the night. I do not know whether there is a mistake or mistakes by the interpreter.” He was adamant that he did tell the police when his statement was taken that there were three persons fighting and that Karan was involved in the fight.

58. [167]

    The appellant also attacks the trial judge’s direction that “the police say ‘Well no, we did this properly over the phone and that statement seems to be reflective of what he told us – that is, he told us about Guna but he didn’t tell us about Karan.’” The appellant submits that the primary judge erred in saying that the police’s position was that Jenishan’s statement seemed to be reflective of what he told the police, rather than it was reflective of what he told them.

59. [168]

    But Jenishan was speaking in Tamil through an interpreter. The interpreter was not called. The police could only say, as they did, that the statement was taken using a qualified interpreter over the telephone using appropriate procedures. The trial judge’s direction was not disadvantageous to the appellant. It fairly put to the jury the appellant’s case that Jenishan’s ultimate identification of the appellant was recent invention.

60. [169]

    The trial judge introduced Dirushan’s evidence as follows:

61. [170]

    Again, the appellant submits that the trial judge was putting to the jury that Dirushan’s evidence was highly supportive of the evidence of Antony because that evidence should be accepted. I do not agree. It is clear that the trial judge was saying that Dirushan’s evidence, if accepted, would be highly supportive of Antony’s evidence. Dirushan’s evidence is summarised at [95]-[98] above. If accepted, it was highly supportive of Antony’s evidence.

62. [171]

    The trial judge went on to address issues relevant to Dirushan’s identification of the appellant, including that Dirushan had “a limited time under pressure in the dark outside to make the identification – albeit that he had had the earlier opportunities ... during that particular evening”, that Dirushan “... came out quickly to an incident that was rapidly happening, and undoubtedly that would have involved some stress and anxiety in relation to the identification procedure”, and that “... you will take into account that [the identification procedure on 11 February 2016] is nearly now seven months after the incident, and does that delay of seven months impact on the reliability of the identification that he did?”

63. [172]

    The trial judge directed the jury:

64. [173]

    The appellant submitted that the trial judge’s summing-up favoured the Crown case over that of the defence. I accept that it would have appeared to the jury from the judge’s summing-up that the Crown had a strong case. But that was not the result of unbalanced directions of the trial judge, but, at least so far as the more serious charge concerning the stabbing of Antony was concerned, the result of the strength of the Crown case. The Crown case that the appellant stabbed Antony was supported by many witnesses. The appellant’s claim that he acted as peacemaker was supported by none. The trial judge pointed this out in his directions to the jury.

65. [174]

    After referring to the evidence of each of the witnesses individually, the trial judge said:

66. [175]

    The appellant submitted that the trial judge ought to have given a further direction similar to that referred at para [114] above, reminding the jury that all five or six identification witnesses could be just as mistaken as one.

67. [176]

    I do not agree. Unless there was an evidentiary basis for the possibility that all of the witnesses were wholly susceptible to the same mistake in identification, then no such further direction was required. Such a direction would not have been accurate.

68. [177]

    The appellant submitted that the directions were unbalanced because they did not adequately reflect the defence case that the appellant was not initially identified as one of the perpetrators and there was a sound basis for thinking that the witnesses’ evidence was contaminated by some of their number telling others that the appellant had attacked Bosco and stabbed Antony.

69. [178]

    When addressing Bosco’s evidence, the trial judge said:

70. [179]

    The trial judge later directed the jury as follows:

71. [180]

    The trial judge’s reference to Reggie having accepted he had discussed with others an aspect of identification was a reference to Reggie’s evidence that he had come to know from being told by people at the hospital about his belief that Guna had stabbed Bosco.

72. [181]

    The trial judge’s direction was accurate insofar as it related to admissions made or evidence given orally by the identification witnesses. But the appellant stresses that the fact that Constable Anthonysamy received on his phone the photograph of the appellant that became Exhibit S (which he forwarded to Detective Clements) means that it was not only an available, but a powerful, inference that, contrary to their evidence, Akash and Kumar in discussions with each other, and possibly with others, had identified the appellant.

73. [182]

    At the conclusion of the summing-up counsel for the appellant applied for the discharge of the jury on the ground that the judge’s summing up was, in general terms, biased towards the Crown. Counsel submitted that when the trial judge put the appellant’s arguments to the jury he took the next step of explaining why the arguments would be incorrect or might be wrong, and why the jury might not accept counsel’s propositions. Counsel submitted that the judge focused on the “positivity of the Crown’s arguments” and the corroboration aspects of the Crown case. He referred to the judge’s statement that evidence was highly supportive of Antony. No specific direction was identified. After discussion with the Crown, the trial judge accepted that he needed to give a further direction in relation to Mr Buckman’s argument in relation to the involvement of Guna and the way that could have led to a mistake in the identification of the appellant. He gave a further direction about that, about which no complaint is made. He rejected the application for discharge of the jury.

74. [183]

    I accept that the trial judge erred in raising speculative possibilities referred to at [161] above.

75. [184]

    When considering the summing-up as a whole, this did not lead to a miscarriage of justice.

76. [185]

    I also accept that the trial judge should have invited the jury to consider whether the fact that the photograph of the appellant (Exhibit S) was undoubtedly on Constable Anthonysamy’s phone pointed to Constable Anthonysamy’s evidence that he had been sent the photo by Kumar as being correct; and if so, whether this reflected adversely on the credibility of Kumar and of Akash, if it were accepted that Kumar was sent the photo by Akash. But the point was made in the submissions of the appellant’s counsel to the jury.

77. [186]

    No further directions were sought.

78. [187]

    Considered as a whole, the trial judge’s directions to the jury were not biased in favour of the Crown. The trial judge did not sum up in terms apt to add to the force of the case for the prosecution so as to sway the jury. He did not convey his opinion as to the proper determination of any issue of disputed fact (McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5). He was at pains to tell the jury that he was not seeking to convey any opinion of his own about the facts, and if they thought that he had conveyed his own opinion, they should disregard it. I would dismiss this ground of appeal.

Ground 3

1. [188]

   The third ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides:

2. [189]

   In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the majority (Mason CJ, Deane, Dawson and Toohey JJ) addressed the tension between the duty of an intermediate appellate court to assess for itself whether on the evidence at trial the jury’s verdict was unreasonable or could not be supported and the importance of the jury in our system of justice, (later called the “constitutional tribunal” to decide guilt or innocence) and the advantage that the jury has over an appellate court in most cases in seeing and hearing the witnesses.

3. [190]

   In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) said that s 568(1) of the Crimes Act 1958 (Vic), which was in materially the same terms as the current s 6(1) of the Criminal Appeal Act, gave to a court of criminal appeal “a function of independent judgment on the facts of the case which a court of appeal hearing an appeal from the verdict of a jury ordinarily does not have” (at 515).

4. [191]

   Barwick CJ also said (at 516):

5. [192]

   This statement of principle was qualified by M v The Queen (at 492-495). The qualification may be relevant to what orders a court of criminal appeal should make if new or fresh evidence is received on appeal which raises a doubt in the mind of the court of appeal, but would not necessarily raise a doubt in the mind of a reasonable jury (see paras [258]-[260] below). In M v The Queen Mason CJ, Deane, Dawson and Toohey JJ said (at 492) that s 6(1) allows a verdict to be set aside if the verdict is unsafe or unsatisfactory, even though there is evidence sufficient to sustain a verdict. Where a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the court must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 493). The majority said:

6. [193]

   The majority added (at 494-495):

7. [194]

   In Libke v The Queen (2007) 230 CLR 559 Hayne J (with whose reasons Gleeson CJ and Heydon J agreed) said (at [113]):

8. [195]

   Hayne J was not departing from the authoritative guidance given in M v The Queen, the effect of which is that it is for the appellate court to consider whether the evidence at trial raises a doubt as to the accused’s guilt and if it does, effect should be given to that doubt unless the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt. The ultimate question is whether the court thinks that upon the whole of the evidence “it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (M v The Queen at 495). Hayne J’s observation in Libke that the question for the appellate court is whether the jury must have entertained a doubt about the appellant’s guilt is to be understood as a statement that the question for the appellate court is whether, having regard to its doubt, a reasonable jury should have also entertained that doubt, or whether that doubt might have been resolved by the jury by its advantage in seeing and hearing the witnesses.

9. [196]

   In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 French CJ, Gummow and Kiefel JJ said:

10. [197]

    In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court did not depart from the “authoritative guidance” given to courts of criminal appeal in M v The Queen in the passage quoted above, but did emphasise that the jury is “the constitutional tribunal for deciding issues of fact”, the “abiding importance of the role of the jury as representative of the community in that respect”, that the setting aside of a jury’s verdict “... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”, and that “... a court of criminal appeal is not to substitute trial by an appeal court for trial by a jury” (at [65], [66]). Citing M v The Queen at 494-5, the High Court repeated that:

11. [198]

    In support of the ground that the jury’s verdict was unreasonable, could not be supported having regard to the evidence and was unsafe and unsatisfactory, Mr Dalton focused upon the late identification of the appellant as an assailant and the possibility of the witnesses’ evidence having been contaminated by unrevealed discussions between them. He set out chronologically what information was conveyed to the investigating police officers to emphasise the opportunity for witnesses to make an early identification of the appellant as an assailant, which they did not. He pointed to statements provided to the police that were inconsistent with the appellant’s having been an assailant. He raised the possibility that the identification witnesses’ evidence had been contaminated by discussions, or by some witnesses having been shown the photograph of the appellant that was sent to Constable Anthonysamy and became an exhibit in the trial.

12. [199]

    As noted above at [99]-[100] only Guna’s name was mentioned to Detective Clements and Detective Hall.

13. [200]

    As noted above at [89], Jenishan made a statement to the police through a telephone interpreter at approximately 2.00am on 12 July in which, according to the statement, Jenishan said that he saw a fight between Kuna and Baskar (Antony) and he did not see anyone else touch Baskar during the fight.

14. [201]

    Bosco was interviewed at the hospital shortly after midnight (without an interpreter). Bosco said that Guna tried to stab three people. There was no mention of a second or third assailant.

15. [202]

    On appeal, the appellant relied upon a further statement taken from Bosco with an interpreter at the hospital at about 11.40am. It was contained in Detective Clements’ notebook. It is consistent with Bosco’s earlier statement in that the appellant was not named as an assailant in respect to either the assault on Bosco or the attack on Antony.

16. [203]

    The note from Detective Clements’ notebook also includes a note dated 13 July 2015 at 4.45pm of an interview with Bosco through an interpreter in which Bosco referred to a person 1 who struck him and “then 2-3 people hammered me” and then Antony came out, but Bosco couldn’t do anything because he had been wounded.

17. [204]

    That record of Bosco’s statements was not in evidence at the trial. It is understandable that counsel for the appellant would not have sought to introduce it. Introducing the statement taken at 11.40am as an inconsistent statement, would have resulted in the tender of the statement taken at 4.45pm that does not contain any material evidence different from that adduced at the trial.

18. [205]

    The appellant then relies upon the conversation between Kumar and Constable Anthonysamy at the hospital and Kumar’s sending a photograph of the appellant to Constable Anthonysamy.

19. [206]

    Mr Dalton then focused on the evidence of Kumar, and in particular, his interaction with Constable Anthonysamy at the hospital on 13 July. Mr Dalton attacked the credibility of Kumar’s evidence partly on the basis of his denial of seeing and sending a photo of the appellant to Constable Anthonysamy, but also for what were said to be inconsistencies between his evidence of what he told Constable Anthonysamy and the evidence he gave at trial. Kumar said that he told Constable Anthonysamy that Karan and Kuna (Guna) were the ones who stabbed. He agreed that he did not see the stabbing and did not see the appellant with a knife. Kumar said that he told Constable Anthonysamy that Kuna had stabbed Antony because he was one of two persons who took Antony following which Antony had stab wounds.

20. [207]

    Mr Dalton submitted that Kumar’s evidence that he told Constable Anthonysamy that the appellant and Kuna were the ones who did the stabbing was false (as it turned out). I do not accept that. Constable Anthonysamy gave evidence that Kumar showed him the photo and told him that the person in the photo was the person who had stabbed Antony. The latter statement is not inconsistent with Kumar’s evidence at trial. Although Kumar did not give evidence of seeing the appellant stabbing Antony, he did say that he grabbed the appellant who was fighting Antony and Antony had stab wounds.

21. [208]

    Mr Dalton referred to the evidence given by Kumar that when he went out to Antony and asked Antony “what’s up?”, Antony pointed at the appellant and said “he beat me up. Whether it was beat me or stabbed, what I understood was beat.” He submitted that that evidence should have been objected to and rejected. This was because Antony gave evidence that he did not remember doing or saying any such thing. Antony gave evidence in cross-examination:

22. [209]

    I do not accept that Kumar’s evidence of Antony’s having pointed out the appellant as his attacker should have been objected to or, if objected to, should have been disallowed.

23. [210]

    Mr Dalton submitted that its probative value was outweighed by the danger of unfair prejudice to the accused (Evidence Act 1995 (NSW), s 137). Given that Antony had been stabbed and the next thing he remembered was waking up in hospital, there was no unfair prejudice to the accused in admitting the evidence, notwithstanding that Antony had no recollection of making the identification of which Kumar gave evidence.

24. [211]

    It was not until 9 August 2015 that Antony identified the appellant as described earlier in these reasons.

25. [212]

    Mr Dalton noted that in Antony’s ERISP of 11 August 2015 Antony referred to the appellant only as person “No. 1”. That was how Antony referred to the appellant at trial. As noted earlier in these reasons, this was relied upon to challenge the evidence of Raji that Antony named the appellant by the name of “Karan” as the person who was responsible for attacking him. This does not to my mind raise a doubt as to Raji’s evidence (nor as to Antony’s identification of the appellant). But if I did have such a doubt, the jury’s advantage of seeing the witnesses would be capable of resolving any such doubt.

26. [213]

    Mr Dalton emphasised the statement taken from Bosco on 13 July 2015 on parts of which he was cross-examined. Mr Dalton referred to some parts of the interview which were not adduced in evidence. In answer to question 6 of the interview, Bosco said that the man who asked him to come outside was the man who hit him on the back and then stabbed him. At that point he identified Guna as that man.

27. [214]

    However, the fact that Bosco did not initially identify the appellant as his attacker, but rather identified Guna, was clearly put to the jury. It was not until 15 September 2015 that Bosco identified the appellant in a computer identification procedure. At that time Bosco identified the appellant as the person who “came from behind and assaulted me.”

28. [215]

    Doubts about Bosco’s identification of the appellant as the man who struck him were clearly left to the jury.

29. [216]

    None of the discrepancies or contradictions in the oral evidence of the identification witnesses raises a doubt as to the appellant’s guilt that was not capable of being resolved by the jury that had the advantage of seeing witnesses. This includes inconsistencies in witnesses’ evidence as to what clothes the appellant was wearing. (On appeal the appellant did not rely on inconsistencies in the evidence as to what clothes he was wearing.)

30. [217]

    The appellant was identified as the person responsible for stabbing (or beating) Antony by Antony, Bosco, Kumar, Raji, Jenishan and Dirushan. That was a powerful body of evidence. The discrepancies, such as they were, between the witnesses’ recollection of events were immaterial and such as would be expected in a fight involving multiple players. The fact that Bosco and Jenishan did not immediately identify the appellant as an attacker of either Bosco or Antony affected their credit but a doubt that an intermediate appellate court would have on that score was capable of being resolved by the jury who had the advantage of seeing the witnesses. The same is true of the attacks that can be and were made on the credit of Kumar and Akash in relation to their denials of having provided the photograph that became Exhibit S. The possibility that that photograph or another photograph of the appellant was circulated between the Crown witnesses was purely speculative and was denied by those to whom the proposition was put. Antony’s statement that Anthonysamy (possibly, but not certainly Constable Anthonysamy) was with him when he identified the appellant outside his house on 9 August does not lead to the conclusion that Constable Anthonysamy prompted the recognition. Constable Anthonysamy said that he had no involvement in the case after forwarding the photograph he received to Detective Clements.

31. [218]

    Nor does the new evidence elicited on appeal (leaving aside for the time being the evidence of Sinniah) take the matter further. The additional statements of witnesses that were adduced on appeal were consistent with the evidence otherwise elicited at trial and it is understandable that counsel for the appellant at trial confined himself to cross-examination on the inconsistent statements that he did.

32. [219]

    Accordingly, Sinniah’s evidence is critical to ground 3 of the appeal.

33. [220]

    As noted above at [10], on 28 February 2017 Sinniah pleaded guilty to wounding Antony with intent to cause grievous bodily harm and recklessly wounding Bosco.

34. [221]

    The plea was the result of negotiations between the DPP and Sinniah’s legal representatives. On 28 February 2017 Sinniah signed written instructions to plead guilty and to accept an Agreed Statement of Facts for Sentence. As noted below, the Agreed Statement of Facts for Sentence signed by Sinniah implicated the appellant.

35. [222]

    There is no evidence that the appellant’s then legal representatives were provided with or informed of Sinniah’s having signed the Agreed Statement of Facts for Sentence that stated that the appellant had assaulted Bosco and stabbed Antony.

36. [223]

    The appellant’s current solicitor, Mr Vertigan, was contacted by the Indictable Appeals Section of Legal Aid and informed that a Mr Pearson who had been in the matter was having to take sick leave. He was asked to take over the appellant’s appeal. He received a formal letter of instructions on 24 June 2019. He was advised that contact had been made with Sinniah and that a solicitor from the Legal Aid Commission had prepared draft material, presumably on instructions received from Sinniah. On the basis of that material, Mr Vertigan prepared a draft of an affidavit to be sworn by Sinniah and attended on Sinniah in gaol to take instructions and go through the draft material.

37. [224]

    The file Mr Vertigan received showed that there was a number of people the appellant had asked Mr Pearson to approach, one of whom was Sinniah.

38. [225]

    Sinniah made an affidavit for the purposes of the appeal on 3 July 2019.

39. [226]

    Sinniah required some amendments to be made to the draft of his affidavit. On 3 July 2019 Mr Vertigan attended on the appellant with a Tamil interpreter. He prepared a file note of that attendance. The file note records that he explained that Mr Pearson was not well and he was taking over the case. His file note includes the following instructions:

40. [227]

    Neither counsel nor the solicitor who appeared for the appellant at trial was called on the application to admit further evidence from Sinniah on appeal.

41. [228]

    No evidence was adduced on appeal from Sutharshan.

42. [229]

    Sinniah’s sentencing was stood over to await the outcome of the appellant’s trial. After the appellant was convicted both the appellant and Sinniah were sentenced by the trial judge. Both were present at the hearing on sentence on 9 June 2017. The sentence hearings were conducted separately but on the same day.

43. [230]

    The Agreed Statement of Facts for Sentence between the Crown and Sinniah included that:

44. [231]

    In his affidavit of 3 July 2019 provided to Mr Vertigan, Sinniah said that at the time he was sentenced he wanted “... to tell everyone that I only had committed the crime and I wanted to speak on Sasi’s (the appellant’s) behalf to tell everyone that he had done nothing.”

45. [232]

    Sinniah deposed:

46. [233]

    Sinniah then deposed to the events that took place on the night of 11 July 2015. In relation to the Statement of Agreed Facts Sinniah said:

47. [234]

    Sinniah gave his evidence-in-chief orally. An order was made under s 136 of the Evidence Act that his affidavit (which was an annexure to Mr Vertigan’s affidavit) be admitted as evidence that Sinniah had made the affidavit and not as evidence of its truth.

48. [235]

    In his evidence-in-chief Sinniah accepted that the Statement of Agreed Facts suggested that the appellant did things to Bosco and Antony, but said that at the time he was mentally upset and he did not understand when “they” were explaining to him things about the appellant.

49. [236]

    Sinniah said in chief that he did not see the appellant attack anybody that night, either with fists or with a knife and did not see him stab anyone.

50. [237]

    Sinniah’s version of the events given orally in chief was in substance that on the night of the incident someone at 20 Veron Street called out for a person called Tamil. The appellant was talking to Akash. At some point someone suggested that Sinniah go across to 22 Veron Street to sort out a problem. Sinniah spoke to Bosco. Initially, “they” brought me outside from the house to talk to me. A heated argument ensued which became physical. Sinniah pushed Bosco. Sinniah did not know what happened to Bosco. Antony came out. At that point Sinniah was not armed with a weapon. Antony came and argued with him and said something that upset him which he took to be a reference to his mother. Sinniah said “I told him, don’t talk about my mother. If you want to say anything you say, and tell me, and then I move out from that area.” At that point he did not see the appellant. Sinniah had a small decoration knife. He went over to a place where he thought there would be a fight. Antony came over to him. Antony argued with him and swore at him with very bad words. Antony said he wanted to kill him and called him a traitor. Then Sinniah went close to him and the appellant came in the middle to separate them. Antony held the appellant’s neck. At that time Sinniah stabbed Antony in the back. Antony was holding the appellant and they fell to the floor. Sinniah stabbed Antony again in the back, but as he was stabbing Antony turned and that’s why there was one stab in Antony’s front. He did not see the appellant stab Antony at any time. Nor did he see the appellant with a knife. So far as he knows he stabbed Antony multiple times. When asked whether he saw that Bosco was injured at some point Sinniah said:

51. [238]

    In further examination-in-chief Sinniah said in response to a leading question that Antony put the appellant in a headlock and he (Sinniah) stabbed Antony a number of times. He was then asked:

52. [239]

    In cross-examination Sinniah agreed that the Agreed Statement of Facts was translated to him in Tamil before he signed the document. He said that while the translator translated the document, although he was listening, he was concentrating on his issues and he did not pay any attention to what the document said about the appellant, and he was mentally very low. In cross-examination Sinniah said that he had been drinking heavily on the day in question. He had told a psychologist (whose report was admitted on sentence and was tendered by the Crown in response to the new (or fresh) evidence adduced on appeal from Sinniah) that since arriving in Australia as a refugee in 2009 his alcohol use had increased to once to twice a week at up to 25 standard drinks in each session. On the day in question he said that he had started drinking at 2.00pm. He started drinking beer and at about 5.00pm he switched to drinking whisky, either straight or mixed with Coca-Cola. By 9.00pm he was very drunk. By the time he went home he was falling over and was sick because he was so drunk. Sinniah adhered in cross-examination to his evidence that he was the only person who stabbed Antony.

53. [240]

    The Crown referred to differences between the evidence given by Sinniah and that given by the appellant as to the circumstances in which the appellant is said to have been placed in a headlock by Antony. There were also differences as to what happened during and after the alleged headlock. As in the case of the evidence of witnesses called by the Crown, such differences in details in the evidence of Sinniah and the appellant are of little significance in assessing the credibility of Sinniah’s evidence.

54. [241]

    Of far greater significance is the fact that on his own account Sinniah was extremely drunk when the fights happened and he agreed to an inconsistent account for the purpose of his sentence.

55. [242]

    Sinniah was cross-examined in some detail as to how he stabbed Antony and how Antony was positioned in his fight with the appellant once both Antony and the appellant were on the ground. Sinniah said that when he stabbed Antony the first time he stabbed Antony “maybe in the hand” but gave a demonstration that suggested that he stabbed Antony the first time near Antony’s left shoulder. He said the next stab was to Antony in the back and he then fell down on the floor. Sinniah said he continued to stab Antony until Antony released the appellant, although he said he could not remember whether Antony was still holding onto the appellant. He could not remember how many times he stabbed Antony when both were standing up.

56. [243]

    On further questioning, Sinniah said that the first stab to Antony was in the back. He could not remember whether there was another stab before Antony fell down. He stabbed Antony in “multiple places”. After Antony fell to the ground he was holding the appellant and they were facing each other on the ground. Sinniah was asked whether he stabbed Antony to the front at any stage and said that maybe he stabbed him in the front. It was then put to him that he knew what the medical evidence about Antony’s stab wounds were and that is why he said that he “maybe” stabbed Antony in the front. Sinniah’s response was “because I’m the only one who held the knife, so I got once in the front, so I did it”.

57. [244]

    Sinniah did not give any evidence of a third person having stabbed Antony. Nor did the Crown suggest to Sinniah that a third person was involved, although that was part of the Crown case at trial.

58. [245]

    Sinniah said that he understood that he was sentenced on the basis that he was not the only person that stabbed Antony. Sinniah rejected the proposition that he thought that if the judge had known that it was only he who stabbed Antony he would have been given more years in gaol. In a non-responsive answer when that question was first attempted to be put to Sinniah, Sinniah said that he told his barrister that what was said in the Statement of Facts was not 100 per cent true and there were a lot of lies there, but he was advised to sign it which is why he did sign it. He was then threatened, inappropriately in my view, that if he were found to have lied in his evidence, that could affect his being released on parole when he was eligible for parole in June this year. Notwithstanding this threat, Sinniah repeated that he was not lying.

59. [246]

    Sinniah waived client legal privilege. On the adjourned date of the hearing of the appeal, the Crown read affidavits from the solicitor and barrister who appeared for him at trial. They were not required for cross-examination.

60. [247]

    His former solicitor, Ms Maree Flynn, deposed that a proposed Agreed Statement of Facts was received from the DPP’s solicitor with carriage of the matter and was read to Sinniah at a conference on 24 February 2017.

61. [248]

    Counsel who appeared for Sinniah, Mr Alexander Terracini, explained to Sinniah that pleading guilty would mean that he accepted the agreed facts. Sinniah participated in the conference, asked questions and appeared to understand what was being discussed and gave instructions. Communication with him was through an interpreter. The conference went for about one hour and thirty minutes.

62. [249]

    On 27 February 2017, when the matter was listed for trial but was adjourned to the following day, Ms Flynn and Mr Terracini had a further conference with Sinniah with an interpreter in which Mr Terracini advised Sinniah of the result of negotiations with the Crown in relation to the charges he faced and negotiations in relation to the agreed facts. Ms Flynn was on pre-arranged leave from 28 February and a colleague attended court that day with Mr Terracini for trial. Sinniah provided written instructions to plead guilty (again, an interpreter was present). His instructions included the statement:

63. [250]

    After the plea of guilty there was a further conference between Mr Terracini and Ms Flynn on 28 March 2017. This was after the appellant had been found guilty at his trial. Mr Terracini discussed the agreed facts with Sinniah. Sinniah asked that they be read to him again, which they were by the interpreter. Ms Flynn deposed that Sinniah asked if the statement of facts meant that there were two wounds and Mr Terracini explained that there were two wounds and that the injury to Antony’s front were caused by the appellant. The interpreter then read further written instructions to Sinniah confirming his intention to maintain his plea of guilty. He agreed to sign those instructions and did so.

64. [251]

    It was not until 6 March 2019 that Sinniah told his solicitor that he wanted to give evidence on behalf of the appellant.

65. [252]

    Mr Terracini deposed that he recalled that at a conference on 16 February 2017 with Sinniah he had no memory of Sinniah indicating his view on the guilt or innocence of the appellant, but he did recall that Sinniah indicated that he stabbed Antony in the back and wished to accept his guilt in relation to that offence. He recalled Sinniah saying that he only stabbed Antony in the back and not in any other area of his body. Mr Terracini also recalled that Sinniah was unable to remember clearly what happened on the evening because of his level of intoxication. He recalled that during conferences held with Sinniah throughout the morning and day of 27 February 2017 Sinniah confirmed his previous instructions that he only inflicted the injuries to the back of Antony. Mr Terracini has no memory of Sinniah indicating that he wished to give evidence for the appellant or indicating that the appellant was either innocent or guilty of his offences.

66. [253]

    On 28 February 2017 final instructions were taken. The Agreed Statement of Facts and the written instructions were read to him by the interpreter. So far as Mr Terracini can recall, Sinniah did not express any issues with the facts as they were drafted and then signed. He has no memory of Sinniah indicating that he wished to give evidence for the appellant. He has no recollection of Sinniah’s indicating that the appellant was innocent or guilty of offences. At no point during the court appearance did those representing the appellant seek to discuss the prospect of Sinniah’s assisting the appellant in the appellant’s trial.

67. [254]

    As indicated above, the appellant did not call the solicitor or counsel who appeared for him at trial. Their reasons for not calling Sinniah or asking the Crown to call Sinniah as a witness in the appellant’s trial were not before this court. There is no evidence that they knew the terms of the Agreed Statement of Facts that Sinniah had signed which implicated the appellant.

68. [255]

    The jury was empanelled on 1 March 2018. I infer that the appellant and his legal representatives would not have known what evidence Sinniah would give about the appellant’s involvement if Sinniah were called. But it is clear that at some time during the course of the trial a forensic decision was made not to ask that Sinniah be called because of counsel’s perception that the case was going well and that Sinniah’s involvement might have a bad impact on the case.

69. [256]

    In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ said (at 517) that:

70. [257]

    In Ratten v The Queen a conscious decision had been made on the part of the applicant not to explore by evidence a particular line of inquiry taken by certain expert witnesses other than by cross-examination of witnesses called by the Crown (at 521). Accordingly, the evidence of the expert witnesses as to the trajectory of a bullet was not fresh evidence (at 521).

71. [258]

    In this case a conscious decision was made not to call Sinniah and not to ask Sinniah to be called. There is no evidence that that decision was influenced by knowledge of the Statement of Facts that Sinniah had signed, but from which he now resiles. Accordingly, his evidence led on appeal is new evidence and not fresh evidence. The question is not whether the credibility and cogency of Sinniah’s evidence is such that, if believed by the jury, when taken with the evidence given at trial, the evidence would be capable of belief and likely to be believed by a reasonable jury (Ratten v The Queen (at 519)).

72. [259]

    The question rather is whether Sinniah’s evidence, and the other new evidence relied upon by the appellant, when taken with the evidence given at trial, persuades this Court that there is a reasonable doubt as to the appellant’s guilt. Whether such a conclusion should result in an acquittal as postulated in Ratten v The Queen or an order for a new trial, is a different question having regard to the qualification later made by the High Court to the views expressed by Barwick CJ in Ratten v The Queen as to whether it is a reasonable doubt in the mind of the Court of Criminal Appeal which is the operative factor (at 516) (M v The Queen at 494-495).

73. [260]

    If the jury had heard the new evidence it might or might not have convicted. The better view, it seems to me, is that if the appellate court considers that the new evidence raises a reasonable doubt as to the appellant’s guilt, the appropriate order is not an acquittal, but an order for a new trial, unless the new evidence shows that the whole of the evidence would contain discrepancies, display inadequacies, be tainted, or otherwise lack probative force in such a way as to lead the court of appeal to conclude that even making full allowance for the advantages that were and would be enjoyed by the jury on a new trial, there must still be a reasonable doubt as to the appellant’s guilt (M v The Queen at 495-6).

74. [261]

    The Crown invited us to find that Sinniah’s version of events was patently false and that he perjured himself.

75. [262]

    The fact that Sinniah adhered to his evidence, notwithstanding the threat made by the Crown that in doing so he was jeopardising his chances of obtaining parole enhances the credibility, but not the reliability, of his evidence. I do not conclude that Sinniah perjured himself. No such finding could properly be made unless it were necessary to do so (Smith v New South Wales Bar Association (1992) 176 CLR 256 at 271; Whitlam v Australian Security and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183 at [116] 591). But independently of that consideration, I am not satisfied that Sinniah did not believe that his version of events was true.

76. [263]

    Nonetheless, I do not accept Sinniah as a reliable witness. I do not accept his evidence that when he gave instructions to his lawyers to accept the Agreed Statement of Facts he was not paying attention to how those facts implicated the appellant. It may well be the case that his lawyers regarded the statements that implicated the appellant (which had been drawn by the DPP) as assisting Sinniah on the sentence hearing. There is no suggestion that this was a subject of discussion between Sinniah and his lawyers. Nonetheless, I think it probable that Sinniah knew and understood what he was agreeing to. The inconsistency weakens his credibility, although I again emphasise that I do not conclude from that that he was lying in the evidence he gave to this Court.

77. [264]

    More importantly, Sinniah’s memory of events was evidently affected by his consumption of alcohol. This was a matter recalled by Mr Terracini in his conference with Sinniah.

78. [265]

    Having regard to all of the evidence given at the trial and the new evidence adduced on appeal, I do not have a reasonable doubt about the appellant’s guilt in respect of both charges.

79. [266]

    Because I do not consider Sinniah’s evidence to be reliable, and having regard to the weakness of the other grounds relied upon referred to above, I would reject ground 3 of the appeal.

Ground 2

1. [267]

   I would also reject ground 2 of the appeal. It was only faintly pressed. In the initial submissions of senior counsel then appearing for the appellant, the contention that a miscarriage of justice was occasioned due to incompetent legal representation at trial was confined to the fact that the appellant’s counsel at trial failed to go into the specific matters later relied upon on appeal as showing that the summing-up was unbalanced. As I have concluded that that ground of appeal fails in any event, the failure of the appellant’s counsel at trial to challenge any specific direction takes the matter no further.

2. [268]

   Nor do I accept that the appellant’s counsel at trial failed to represent the appellant competently by not pursuing the additional pieces of evidence sought to be advanced on appeal or by taking objections to evidence adduced by the Crown. Counsel’s decision as to how much of a witness’ statement in a prior record of interview should be adduced in cross-examination was a matter of forensic judgment. I have rejected the appellant’s submission that the evidence referred to at [208]-[210] above was inadmissible.

Conclusion

1. [269]

   I would grant leave to appeal, but for these reasons I propose the appeal be dismissed.

2. [270]

   JOHNSON J: I have had the considerable advantage of reading the judgment of White JA. I agree with his Honour’s reasons and proposed orders.

3. [271]

   It is appropriate that I set out my own conclusions on two aspects of the appeal.

4. [272]

   Firstly, having observed Guna Sinniah giving evidence in this Court, I do not regard his account as being reliable. He acknowledged that he had consumed a large amount of alcohol and was quite drunk on the night of these events. Further, his account moved around to a considerable degree under cross-examination, probably because of his clearly intoxicated state at the time of the incidents. Mr Sinniah’s evidence is new evidence and not fresh evidence. It lacks cogency and does not advance the appellant’s case in this Court.

5. [273]

   Secondly, with respect to Ground 3 which asserts that the verdicts of guilty are unreasonable and not supported by the evidence, I have considered the evidence given at the trial and do not have a reasonable doubt about the appellant’s guilt in respect of both charges. When regard is had as well to the new evidence adduced on appeal, like White JA, I do not have a reasonable doubt about the Appellant’s guilt of these offences.

6. [274]

   Apart from these specific findings and observations, I agree entirely with the reasons of White JA for concluding that the appeal against conviction should be dismissed.

7. [275]

   LONERGAN J: I too have had the considerable advantage of reading the judgment of White JA and I agree with his Honour’s reasons for dismissing each of the grounds of appeal, as well as the orders his Honour proposes.

8. [276]

   On the issue of Mr Sinniah’s evidence, I agree that it is new (not fresh) evidence. I found Mr Sinniah’s evidence to be elliptical, unconvincing and ultimately unhelpful to the appellant’s case as argued in this Court.

9. [277]

   I have considered all of the evidence led at trial, as well as the new evidence led on the appeal. I do not have a reasonable doubt as to the accused’s guilt of these offences and I agree that the appeal against conviction should be dismissed.