JH v R

1. [1]

   The applicant, JH, was indicted on one count of murder and pleaded not guilty to that charge. The trial commenced on 25 August 2014 with a jury of 12 which was subsequently reduced to 11.

2. [2]

   On 13 October 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.

3. [3]

   The Crown case was that the applicant was a party to a joint criminal enterprise. The jury’s verdict of manslaughter was based upon an unlawful and dangerous act. The offence occurred by the conduct of JH and a number of other persons assaulting and ultimately killing the victim Eden Delir at a Halloween party on 30 October 2010. The co-offenders, MG, AE and SB pleaded not guilty to the murder of the deceased and they were tried jointly. They were each convicted of murder. An appeal by MG was upheld and an appeal by AE was dismissed: MG v R; AE v R [2016] NSWCCA 228. JP was tried separately and was convicted of manslaughter. AN was convicted after the Crown accepted a plea to manslaughter.

4. [4]

   On 12 December 2014 Hall J sentenced JH to imprisonment for 10 years with a non-parole period of seven years commencing 5 October 2014 and expiring 4 October 2021.

5. [5]

   The applicant now seeks leave to appeal against both his conviction and sentence on the following grounds:

The facts

1. [6]

   On 30 October 2010, Brenda Torres hosted a Halloween party at her home, 39 Restwell Road, Bossley Park. The invitation was posted on Facebook and a large number of people attended: some were invited, while others were not. When Ms Torres made her Facebook event public, someone purporting to be from the 'Campbelltown Boys' wrote on her event page saying they were going to bring drugs to her party. Ms Torres did not want this to happen and so spoke to her friend Jayden Mudford who said he would deal with it. It transpired that Mr Mudford, who was concerned that the Campbelltown Boys would still attend the party and assault him, spoke to his friends, the 'Wakeley Boys', who attended the party to deal with the Campbelltown Boys in the event they showed up (T 179, T 181, T184-186, T 218).

2. [7]

   The applicant, JH, was part of this group of males, the 'Wakeley Boys', that attended the party. The others were, MG, AE, SB, JP and AN. The Crown case was that the group attended the party to confront the 'Campbelltown Boys', who they believed would be at the party. At least one member of the group was seen to be carrying a metal pole at various times.

3. [8]

   The deceased, Eden Delir, attended the party with friends. He had on a prior occasion given evidence to police and at Court in relation to an incident where he was robbed of his phone and assaulted by a group of males. It was alleged that the applicant was involved in that robbery and assault. The Crown case was that the applicant held the view that the deceased was a 'snitch'.

4. [9]

   Sometime around 8:30pm on the evening of the Halloween party, the deceased was at the front of the house when one of the group called out to him. The deceased approached the group and one of the males removed his hat. The deceased was then punched on the right side of the head by another member of the group, probably SB, who was seen by at least one witness to come from behind a truck. The deceased fell to the ground, where he was set upon by members of the group who punched and kicked him. JP was seen to smash a bottle over the deceased's head. The deceased was able to get up and run away, but was chased by SB who, on the Crown case was holding a pole, and AE who was wearing a blue shirt. Both boys were attempting to further assault him, but were prevented in doing so by the intervention of Kane Crisp, who was wearing a gladiator costume.

5. [10]

   Shortly after the assault, the group was seen to look for a knife which had been left at the scene. The group then got into a red car and drove off at speed. The deceased was found unconscious by the side of the house at 15 Restwell Road, about an hour and a half after the assault. He was taken to hospital where he remained in a coma until his death on 5 November 2010.

6. [11]

   There was evidence in the trial of an incident that occurred in February 2010 which involved both the applicant and the deceased. The deceased's statement dated 21 February 2010, was tendered and read to the jury (T 128). In summary, the deceased and the applicant knew each other from school. The deceased was 17 years old at the time, and the applicant was 15.

7. [12]

   On the evening of 20 February 2010, the deceased received a call from an unknown number. He did not answer it because his phone was on silent and he did not hear it. At about 10:30pm he saw the missed call and dialled the unknown number. The applicant answered the call and asked if he could come around for a visit. The deceased agreed and met him at the front of his house. While they were talking, the deceased saw three males running towards him. The first male was wearing a cap and a bandana covering his face, the second male was wearing a bandana covering his face and had a shaved head with a rat's tail down the back of his head to his shoulders. The third male was wearing a dark green hoodie with the hood pulled down over his head and up at the bottom near his chin so that his face could not be seen. As the males were approaching, the applicant ran away. One of the males demanded that the deceased give them 'all your shit' while the others surrounded him.

8. [13]

   The male with the black cap punched the deceased to the head causing him to drop his mobile phone. The deceased bent to pick it up and was kneed to the right side of the head causing him to fall to the ground. One of the males kicked the phone away, and the deceased was then kicked a number of times to his head and body. The males then ran away with his mobile phone.

9. [14]

   The deceased ran inside his house and locked the doors and shutters. He sat in the shower for about 10 minutes feeling nauseous and dizzy. He felt bruising and numbness on the right side of his face. He went to bed feeling confused and unwell, and he felt like fainting when he tried to stand up. His sister Annabelle and god-sister Denita Khosrow found him lying in bed and then called his parents. When his parents came home, he was taken to hospital for treatment.

10. [15]

    The deceased provided a statement to police about the assault and robbery the following day. This was the so-called 'snitching' to which reference was made by one of the attackers just before the deceased was set upon by the Wakeley Boys at the Halloween party on 30 October 2010.

Ground 1 – the verdict is unreasonable and cannot be supported by the evidence

1. [16]

   The applicant’s submissions did not rely on an assertion that the evidence generally was insufficient for the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The submissions were rather directed to the alleged weakness of the identification evidence when coupled with the evidence of motive on the applicant’s part. Although there was some direct evidence identifying the applicant as part of the group that assaulted the deceased, the Crown’s case was largely a circumstantial one that involved inferences from observations of the applicant with the offending group both before and after the assault on the deceased, inferences from telephone calls as well as inferences and admissions from recorded conversations on the telephone and in person.

2. [17]

   The High Court has recently said this concerning the role of the jury and the issue of unreasonable verdicts in The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 at [65] – [66]:

3. [18]

   Because this Court must be satisfied on “the whole of the evidence”, considering the grounds as framed is an inappropriate way of determining whether the verdict is unreasonable. In R v Hillier (2007) 228 CLR 618; [2007] HCA 13 the joint judgment of Gummow, Hayne and Crennan JJ said at [48];

4. [19]

   We will, however, consider the matters raised by each of the grounds and in the light of that make an assessment of whether the verdict is unreasonable considering all of the evidence.

Grounds 1a and 1b – identification of applicant

1. [20]

   These two sub-grounds can be conveniently dealt with together.

2. [21]

   The applicant submitted that it was a central part of the Crown case that he was physically present at the time the deceased was attacked. He submitted that Kane Crisp was the only person during the trial to give positive evidence that he, the applicant, was present and participating during the attack on the deceased. He submitted that any evidence of Mr Eishou to similar effect should be disregarded because of the lies that Mr Eishou told to the police and the inconsistencies in his evidence.

3. [22]

   During the trial on 31 October 2013 Ms Hickleton of counsel, who appeared for the applicant at the trial, gave notice that she objected to the identification evidence to be given by Mr Crisp. The application was made based on sections 135 and 137 of the Evidence Act 1995 (NSW). The evidence proposed to be led was that on 1 May 2011 Mr Crisp recognised and identified to police the applicant as a person depicted in a photograph displayed on Facebook which was taken at the party and as being a person who was present when the deceased was assaulted. In a judgment given by the trial judge on 27 August 2014 his Honour ruled that the evidence was admissible. There is no ground of appeal concerned with that judgment.

4. [23]

   In order to understand the course of events leading to Mr Crisp’s identification of the applicant as well as the basis for the objection to the evidence made by counsel for the applicant at the trial, it is convenient to set out portions of his Honour’s judgment:

5. [24]

   At the hearing of the appeal counsel for the applicant played two DVDs showing the interview with Mr Crisp when he was shown the various photographs.

6. [25]

   The applicant submitted that what took place at the second of those interviews left open the suggestion that Mr Crisp was influenced by Detective Barnes’ interest in the particular photograph ultimately identified by Mr Crisp as showing the applicant. The applicant eschewed any suggestion that there had been any wrongdoing or impropriety on the part of Detective Barnes. The applicant submitted that Mr Crisp’s evidence was a strong example of the displacement effect at work. That theory was said to be that true memories had been displaced by memories brought about, in this case, by the fact that the photograph had been posted on Facebook and was commented upon by a number of persons suggesting that the applicant had been involved in the assault on the deceased.

7. [26]

   The issue of the fallibility of identification evidence has most recently been highlighted in New South Wales in Wood v R [2012] NSWCCA 21 by McClellan CJ at CL (Latham and Rothman JJ agreeing) at [410]-[417]. In particular, his Honour said:

8. [27]

   Mr Crisp’s evidence was as follows (T1153 – T1154):

9. [28]

   In cross-examination Exhibit F was placed on the overhead projector and he gave this evidence (T1192 - T1193, T1194 - T1195 & T1197- T1200):

10. [29]

    In relation to any suggestion of influence by Detective Barnes by what happened at the second interview it is significant that Mr Crisp identified the photograph that he was talking about before Detective Barnes handed him one group of the photographs in which he identified that particular photograph being Exhibit F. The transcript reads as follows:

11. [30]

    From viewing the interview and reading the transcript, there is nothing to suggest anything Detective Barnes said or did might have influenced Mr Crisp.

12. [31]

    As can be seen from the cross-examination of Mr Crisp it was put to him that his memory might be affected by the displacement theory. He said that he understood the theory but denied that it was so. The trial judge gave careful directions about identification to the jury including unreliability based on the displacement theory. His Honour said this:

13. [32]

    A matter of some significance that the jury may well have considered was that Mr Crisp said that he was present when the photograph Exhibit F was taken. The jury may have taken the view that an identification from a photograph of a scene he actually witnessed is likely to have been more reliable than one where he had not been present and was being shown it for the first time. It was ultimately a matter for the jury having heard and seen Mr Crisp to decide if they considered that his evidence was reliable.

14. [33]

    Mr Crisp was not the only witness who provided positive identification of the applicant’s presence at and about the time of the assault. Moana Heta gave this evidence about what she and Brenda Torres did during the evening (T1272 – T1274):

15. [34]

    Mr Crisp’s evidence cannot be seen in isolation from evidence of Ms Heta, nor indeed from the evidence of a number of witnesses who reported that the applicant arrived with and was seen with a number of other persons involved in the assault at various times during the evening. Some examples follow.

16. [35]

    Jayden Mudford knew JH from school although they were not friends and he had never spoken to him. He identified the applicant from a photo presentation and said that he had seen him standing with JP and another person he knew, Alan Elia, prior to the assault on the deceased. Jasmine Dinh also knew the applicant from her school. She saw the applicant and JP arrive together in a car with some other people. She also saw them come back to the party together after the assault. She told the police in her statement of 17 November 2010 that JH was carrying a stick when he arrived and that he yelled out “Let’s go have some fun boys”. The significance of the evidence from Mr Mudford and Ms Dinh is that JP was one of the persons who actually assaulted the deceased.

17. [36]

    George Eaglesham gave evidence that he was approached by a couple of people who asked him aggressively if he was from Campbelltown. He said that he was not but one of them who was holding a knife in Mr Eaglesham’s direction asked him a second time. Mr Eaglesham said that he saw the applicant “hanging” with the same group of males that that had approached him, one with the knife, although he said JH did not have the knife and was not another person in the group who had a pole.

18. [37]

    Elias Daccour saw a group of boys one of whom had a pole in his hand. He, like others, described the group as moving from the front through to the backyard and then back out the front. He described the boy with the pole as using it to hit the deceased. Shortly before the assault he heard one of the boys in the group call out the deceased’s name and say “You’re the guy that snitched”. That evidence was, therefore, linked to the motive for the bashing and that motive concerned the applicant. The issue of the motive is discussed when considering ground 1(d).

19. [38]

    Finally, the jury also heard the evidence of Justin Eishou who identified the applicant as being part of the group that was involved in the assault. It may be accepted that Mr Eishou’s evidence was unsatisfactory in that he admitted to having lied to the police on more than one occasion and he retracted evidence that he saw the applicant actually strike the deceased. Nevertheless, it was open to the jury to accept parts of his evidence, as the trial judge made clear in his directions to them when dealing with Mr Eishou’s evidence. That evidence included that the applicant had told Mr Eishou sometime before the party not to bring the deceased over to the applicant’s place or the applicant would punch the deceased. It was also open to the jury to accept that part of Mr Eishou’s evidence that placed the applicant with the group of boys who assaulted the deceased because that evidence was at least consistent with evidence of other witnesses already referred to.

Ground 1(c) – applicant not present at party at the time of the assault

1. [39]

   The applicant relied on what was said to be an exculpatory conversation that he had with Marie Khokaz which was secretly recorded by her on her telephone. The applicant also relied on the telephone calls between the applicant and Marvin Georgis and the home phone number of the Georgis family.

2. [40]

   The phone calls were said to support the applicant’s account that he had left the party just before the assault to pick up Marvin Georgis in response to Marvin’s request to be picked up and taken to the party.

3. [41]

   The phone calls from Exhibit 15 are said to be these:

4. [42]

   The applicant submitted that in his Honour’s summing up to the jury of the phone call evidence his Honour inadvertently misrepresented the evidence. His Honour said (SU 104):

5. [43]

   The applicant submitted that that summary misstated the evidence of Detective Senior Constable Bressington who gave this evidence (T1512.45):

6. [44]

   The applicant submitted that his Honour further ignored the earlier calls at 7:50pm from the Georgis’ family home to the applicant’s mobile phone. It was possible that contact was made between the Georgis’ family home and the applicant’s mobile for five seconds. The result was that there was a reasonable possibility that the applicant was not present at the time of the assault.

7. [45]

   The attack on the deceased is thought to have occurred between 20.30 and 20:43:11 when the deceased rang Romina Khosorow. The relevant calls prior to that time that could have been calls from Marvin Georgis to the applicant were at 19:50:42 (four seconds); 19:50:58 (three seconds); 19:53:09 (three seconds); 20:30:12 (five seconds); and 20:30:42 (one second). The last call can almost certainly be discounted because on Detective Bressington’s evidence it would have been an unanswered call. It was therefore for the jury to determine whether it would have been possible for Marvin Georgis to have requested the applicant to pick him up and told him where he was in any of those calls, when none of the calls lasted more than five seconds.

8. [46]

   However, consideration of that matter could not be divorced from a consideration of the whole of the transcript of the recorded conversation by Ms Khokaz (Exhibit W). The following is relevant from that transcript:

9. [47]

   Although reluctant to impart information to Ms Khokaz about who was involved and what happened, at no point does the applicant suggest that he was merely repeating what somebody else had told him. The applicant was very wary of anyone finding out that he was telling Ms Khokaz about who was involved. One might have expected him to make it clear that he was only told what he was imparting to Ms Khokaz if that was the case. Indeed, the detail provided by the applicant in his account to Ms Khokaz, which is consistent with what some of the other witnesses have described, points strongly against this information having been imparted to the applicant and points to the conclusion that he was present when it took place. It was a matter for the jury whether they accepted that the applicant, whilst illegally driving a motor vehicle full of people who had just assaulted the deceased, would be able to remember the detail of who did what in the detail described by him to Ms Khokaz.

10. [48]

    Further, the only evidence that Marvin Georgis had contacted the applicant and asked to be picked up and that the applicant had left before the assault to do so was contained in Ms Khokaz’s statement. That evidence had to be assessed with the other evidence already referred to that put the applicant with the offending group at the time of the assault.

11. [49]

    The fingerprint evidence did not identify any prints from the applicant in or on the car. However, a left thumb print of AE was found on the rear vision mirror and a right palm print of AE was found on the inside of the driver’s side door frame area. It was open to the jury to have concluded that AE rather than the applicant was the driver of the car.

Ground 1(d) - insufficient evidence to support the alleged motive of the applicant to attack Mr Delir.

1. [50]

   The applicant submitted that it was a central part of the Crown case that the applicant’s involvement in the earlier robbery on Mr Delir and the mistaken belief that Mr Delir had “snitched” (or informed) on the applicant provided a motive for the applicant to organise and participate in the attack. The applicant pointed to various references made in both the Crown’s opening and closing addresses. In the Crown’s closing address the prosecutor said (T1594:35), that there were three silver bullets being intention, motive and actions. The applicant pointed to what the Crown said at T1618:11 in closing:

2. [51]

   The applicant submitted that only two witnesses in the Crown case gave evidence that was consistent with the applicant maintaining animosity against the deceased. Those witnesses were Mr Eishou and Ms Matekalo. The applicant pointed to the general unreliability of Mr Eishou’s evidence and issues relating to his honesty. He also pointed to the fact that Mr Eishou agreed, in any event, that he did not witness any exchange between the applicant and the deceased at the party in relation to the issue of revenge for snitching.

3. [52]

   Ms Matekalo gave evidence of the applicant speaking badly of the deceased following Mr Chin’s court proceedings arising out of the earlier robbery. She recalled the applicant saying:

4. [53]

   The applicant submitted that Ms Matekalo did not like him following a break up in their relationship, and that she came to a conclusion about his involvement in the attack soon after it had occurred. Further, Ms Matekalo gave evidence that she had watched Mr Chin’s court proceedings and that the deceased did not say anything bad about the applicant. She also gave evidence that the applicant had apologised to the deceased and that the matter was behind them. The applicant also pointed to emails from the deceased to the applicant after the earlier robbery where the deceased did not express antagonism between him and the applicant.

5. [54]

   The jury had two pieces of significant evidence that supported the motive alleged by the Crown. The first piece of evidence is to be found in the secretly recorded telephone conversation by Ms Khokaz. It was set out earlier at [46]. When MG saw the deceased and asked wasn’t the deceased the guy “that snitched on youse” the applicant said to Ms Khokaz:

6. [55]

   Not only did the applicant not deny to MG that the deceased did not snitch on him, he did not say that the matter had been resolved between them and was in the past. He did not suggest to Little Alan that there was nothing to hit him for, and the applicant’s statement to Ms Khokaz suggests that he thought that all that was going to happen was that the deceased would be hit but not seriously injured or killed.

7. [56]

   The second significant piece of evidence was contained in two intercepted telephone calls from Christopher Chin to the applicant on 14 November 2010 at 22:39:57 and 22:50:37 respectively (Exhibits BC and BB respectively).

8. [57]

   In the first of these calls the following exchange occurred (V1 = Chin and V2 = the applicant):

9. [58]

   In the second call Mr Chin told the applicant that he, Mr Chin, had snitched on the applicant at Court in relation to the robbery of the deceased. The conversation then went on:

10. [59]

    At the time of those two telephone calls with Mr Chin the applicant knew, from his conversation with Ms Khokaz at least, that the deceased had died.

11. [60]

    These recorded telephone calls with Ms Khokaz and Mr Chin provided strong evidence in support of the evidence of Ms Matekalo and Mr Eishou. The calls demonstrate that, at least until the conclusion of the second phone call with Mr Chin ([58] above) the applicant had continued to hold the belief that the deceased had “snitched’ on him, and that was discussed between the applicant and MG shortly before the assault on the deceased. The evidence of Mr Daccour of hearing one of the group asserting that the deceased was a ‘snitch’ shortly before the assault is further support for that belief.

12. [61]

    The applicant does not recount to Ms Khokaz any suggestion by him to MG either that the snitching issue had already been resolved nor that they should not “hit” the deceased at the end of the party. Indeed, the conversation records the applicant then saying “Like alright no worries” from which the jury could infer that the applicant said those words to MG.

13. [62]

    Another matter requires mention from these phone calls. In cross-examination Mr Chin said that when he said “you could have stopped it” he meant that the applicant should have intervened at the party to stop the assault. The applicant did not respond to that repeated remark by saying that he was not present at the time. His omission to say that he was not present or to ask how he could have stopped it meant either that he was present at the time of the assault or that he understood the remark to refer to the allegation of snitching which was then unresolved. The jury was entitled to draw either or both of those inferences from his silence.

14. [63]

    We consider that there was more than sufficient evidence to support the motive the Crown put forward.

Conclusion on grounds alleging unreasonable verdict

1. [64]

   As noted earlier, although there was some direct evidence identifying the applicant in the group assaulting the deceased, the Crown’s case was largely circumstantial. This was particularly so because the case was that the applicant was involved in a joint criminal enterprise to cause grievous bodily harm to the deceased. The case was not dependent nor based upon the Crown proving that the applicant struck the deceased. The Crown opened by saying:

2. [65]

   The jury was required to consider all of the circumstantial evidence together and not in a piecemeal fashion. That evidence included the evidence of Kane Crisp, Moana Heta and Justin Eishou who all claimed to have seen the applicant with the perpetrators at the time of the assault; the evidence of the others at the party who identified the applicant in company with the perpetrators before and after the assault; the recorded conversation with Marie Khokaz and the inferences that could be drawn from what the applicant said during that conversation; the clear evidence of the motive being punishment for the “snitching” on the applicant; the fingerprint evidence in relation to the car; and the evidence concerning phone calls to and from the applicant in the hour surrounding the assault.

3. [66]

   When regard is had to all of the evidence in the case we consider that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant.

4. [67]

   We would reject grounds 1a to 1d.

Ground 2 – a miscarriage of justice occurred by way of incompetent legal representation

1. [68]

   There were three sub-grounds in relation to the alleged incompetent legal representation. These were:

2. [69]

   In support of these grounds the applicant sought to lead further evidence which was accepted by him as not being fresh evidence.

3. [70]

   At the hearing of the appeal, the Court after hearing from counsel for the applicant, ruled that the application to lead the further evidence was refused on the basis that even if that evidence was before the Court it would not have the persuasive qualities necessary to justify its admission and that it could not be said that a miscarriage of justice had resulted by reason of that evidence not being available.

4. [71]

   Counsel for the applicant said that, even in the light of that ruling, he did not have instructions to abandon ground 2 but no further submissions were made in support of the ground on the basis, it would seem, that the only material in aid of ground 2 was the new evidence. Nevertheless, it is necessary to explain briefly why the application to lead the new evidence was rejected and why ground 2 should be rejected.

5. [72]

   In Baden-Clay the High Court said:

6. [73]

   In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Gleeson CJ said:

7. [74]

   As was observed by N Adams J (Hoeben CJ at CL and Campbell J agreeing) in Kees Langelaar v R [2016] NSWCCA 143:

Ground 2a – a possible second attack at a different location

1. [75]

   The forensic pathologist who carried out the post mortem, Dr Stephen Wills, in giving the history of the assault that had been provided to him, referred to the fact that the deceased had been assaulted with a glass bottle, had tried to escape from the party where the assault occurred and was further assaulted at a nearby address. It is not known where Dr Wills obtained the information that the deceased was further assaulted at a nearby address which is likely to be a reference to 15 Restwell Road where he was found.

2. [76]

   The applicant’s present solicitors (who did not act for him at the trial) sought a report from Professor Johan Duflou asking him to consider the findings of Dr Wills and to provide an opinion as to the possibility that the occasioning of the death of the deceased occurred not outside the premises at 39 Restwell Road but at the location of 15 Restwell Road. His attention was drawn to a statement of Senior Constable Cobcroft who was the first police officer to respond to the call in respect of the assault. Senior Constable Cobcroft observed pieces of a broken glass bottle on the footpath outside the house but did not observe any blood. Professor Duflou was also provided with a statement of Sergeant Welschinger who performed a blood stain analysis of the scene where the deceased was found. Sergeant Welschinger said it was not possible to rule out the possibility that the deceased was assaulted at the position where he was found.

3. [77]

   Professor Duflou concluded that although it was possible that the bottle caused the incised wounds on the scalp and left hand, the absence of blood at 39 Restwell Road strongly suggested that those injuries were not inflicted at that location given the subsequent movement of the deceased for a distance of more than 200 metres and there being no blood loss identified between 39 and 15 Restwell Road. Professor Duflou said that his conclusion was made on the assumption that no blood of the deceased was found at 39 Restwell Road or at any location between the two properties.

4. [78]

   The applicant’s solicitors obtained a report from Helen Roebuck, a forensic scientist with expertise in blood stain pattern analysis and related matters. Ms Roebuck considered the crime scene examination conducted by the police officers. In general terms, she thought the examination was inadequate partly by reason of the time spent and partly because it was conducted in the middle of the night.

5. [79]

   She first commented on Professor Duflou’s conclusion that there was strong physical evidence that the deceased did not sustain the incised wounds to the scalp and hand at 39 Restwell Road but rather sustained them at 15 Restwell Road. Ms Roebuck said:

6. [80]

   Her conclusions otherwise were these:

7. [81]

   The applicant otherwise relies on the evidence of the phone call from the deceased to Adam Chanthavong saying that he had been bashed, the fact that two people chased after the deceased when he ran up Restwell Road but could not locate him and the fact that a resident at 15 Restwell Road heard the sound of a car leaving quickly at about 10:30pm. Those matters are entirely neutral on the issue of whether the deceased was bashed on a second occasion at or near 15 Restwell Road. There is no evidence showing where Dr Wills based his assumption that the deceased was bashed a second time and the evidence of Ms Roebuck casts considerable doubt on Professor Duflou’s conclusions.

8. [82]

   The evidence is not of sufficient cogency that either innocence is shown to this Court’s satisfaction or that this Court entertains a reasonable doubt as to the applicant’s guilt.

9. [83]

   As was made clear in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63], the concept of a miscarriage of justice must be considered in the light of the way the trial was conducted where tactical decisions will have been made on the part of the applicant about evidence which should or should not be called or challenged. The applicant’s case was always that he was not involved in any way in the assault of the deceased. It is no surprise, therefore, that lawyers acting for the applicant were not concerned to establish that the deceased had been assaulted on a second occasion and it was that occasion that led to his death. Such a course might have been seen as undermining the applicant’s primary position that he was not involved in any event.

10. [84]

    The evidence sought to be put forward is entirely speculative. It is not fresh evidence since all of it was available to be called at the trial. Indeed, some of the police officers gave evidence at the trial.

11. [85]

    This ground should be rejected.

Ground 2b – defence representatives failed to adduce relevant evidence from witnesses that detracted from the Crown’s case on motive

1. [86]

   The applicant sought to rely on four statements which, in any event, formed part of the Crown brief. These were the statement of Constable Cobcroft dated 5 November 2010, the statement of Ardavez Delir dated 23 November 2010, the statement of Detective Senior Constable Bressington dated 15 March 2012, and the statement of the deceased dated 21 February 2010.

2. [87]

   The thrust of this evidence was said to be that the deceased had told Dylan McTaggert, who in turn told Constable Cobcroft, that he had seen two Lebanese men at the party who had robbed him months earlier and he intended to leave the party to avoid them. The applicant is Chaldean and not Lebanese which the deceased knew because they had been school friends in the past.

3. [88]

   Somewhat inconsistently the statement of Ardavez Delir referred to an incident about a year before the party where the deceased had been the subject of an assault and robbery at Stocklands Mall by a Lebanese boy and some Chaldean boys. The applicant was not part of that robbery. It was submitted that that raised the possibility that the deceased recognised someone else in the group at the party who had a motive to attack him.

4. [89]

   Finally, and again inconsistently, Constable Bressington’s statement disclosed that he asked a witness at the party, Stephanie Zandarin, why the attackers hit the deceased and she answered:

5. [90]

   The applicant submitted that all of these were alternative theories on the issue of motive that should have been put before the jury and that there was no logical or tactical reason not to lead the material.

6. [91]

   Quite apart from the weak nature of this evidence now sought to be led, it cannot be said to be of any cogency in relation to the applicant’s innocence. Moreover, this ground must be considered in the light of the motive evidence discussed in relation to ground 1d. The evidence now sought to be led did not in any way diminish the strength of the evidence of motive disclosed in the telephone calls with Christopher Chin and Marie Khokaz together with the evidence of Mr Eishou and Ms Matekalo.

7. [92]

   No miscarriage of justice is demonstrated and this ground should be rejected.

Ground 2c – defence representatives failed to properly advise the Applicant on his right to give evidence at trial

1. [93]

   The applicant accepts that he was advised by his lawyers of his right to give evidence in the trial. He asserts, however, that he was denied that opportunity through a misunderstanding or miscommunication with his legal representatives. The applicant submits that if he is successful on this ground the appropriate order is that a new trial should be ordered.

2. [94]

   In R v Birks (1990) 19 NSWLR 677 Gleeson CJ summarised three relevant principles relating to the conduct of a trial by counsel. The second of these principles was this:

3. [95]

   Following TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Gleeson CJ in Nudd said that ordinarily a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard. In TKWJ Gleeson CJ said:

4. [96]

   In the present case, viewed objectively, the decision by counsel for the applicant not to call him to give evidence was a rational and probably a wise decision. The Crown case was not without some difficulty particularly in the area of identification. However, that does not diminish the earlier analysis of that material because the issue now in the light of all of the evidence is whether the verdict was unreasonable. With the obvious areas for cross-examination available to defence counsel at the trial, a decision not to call evidence from a young man who was aged 15 at the time of the events and 17 at the time of trial can well be understood. That is particularly so in the light of the conversation recorded by Ms Khokaz, the phone calls with Mr Chin and the intercepted phone calls with Marvin Georgis and MG after the police started asking questions of those involved. The fact that the applicant now asserts that he wished to give evidence at the trial does not mean that a miscarriage of justice occurred by the course that was in fact taken.

5. [97]

   In the light of the rational decision, objectively considered, on defence counsel’s part at the trial not to call the applicant, there is no basis for examining the new evidence that the applicant seeks to put forward to impugn that decision. It is not demonstrated that there is a miscarriage of justice. This ground should be rejected.

Ground 3 - the trial miscarried by reason of prejudice occasioned by the Crown Prosecutor’s address to the jury.

1. [98]

   The applicant submitted that the Crown Prosecutor, in his closing address, stated that several witnesses were scared or reluctant to give evidence, and he implied that that was because of their fear of the applicant. The applicant said that there was no evidential basis for that statement. The applicant submitted that defence counsel at the trial objected and sought that the comments be withdrawn. The trial judge directed the Crown to withdraw the remarks but the Crown did not do so or did so in an inadequate way. Defence counsel sought that the jury be discharged but the trial judge refused that application. There is no appeal from that judgment.

2. [99]

   The Crown Prosecutor during his closing address said this (T1593:28):

3. [100]

   The remarks made by the Crown Prosecutor were inappropriate. They painted far too broad a picture of the witnesses who gave evidence. The remarks ought to have been expressly withdrawn and, if it was appropriate to do so, the Crown Prosecutor should have identified the witnesses whose evidence justified the remarks.

4. [101]

   As part of the argument on defence counsel’s application to discharge the jury the Crown Prosecutor gave an explanation for not having expressly withdrawn what he had previously said and for having gone about the matter in a different way. That explanation (at T1661) was to the effect that he considered that by referring to particular passages and repeating references it would have created a more damaging situation and reinforced the problem that was complained of.

5. [102]

   Significantly, in his summing up the trial judge said this:

6. [103]

   In Lane v R [2013] NSWCCA 317 Bathurst CJ, Simpson and Adamson JJ said:

7. [104]

   With no contrary indication from the jury, it should be accepted that the jury followed the direction given by the trial judge in that regard.

8. [105]

   We would reject this ground of appeal.

The findings of the sentencing judge.

1. [106]

   In terms of the offending, the sentencing judge found (at [66]) that:

2. [107]

   His Honour did not accept the Crown’s submission that the evidence established that the applicant had orchestrated the attack, in the sense that he was the sole instigator of it. He concluded (at [68]) that the applicant and others had jointly decided to launch a group attack on the victim, and that the applicant had encouraged others to do so. Having regard to these matters his Honour concluded that the applicant’s moral culpability was high.

3. [108]

   In terms of the objective seriousness of the applicant’s offending, his Honour said (commencing at [76]):

4. [109]

   His Honour then turned (commencing at [82]) to consider the applicant’s subjective case. Central to the submissions advanced on behalf of the applicant before this Court were his Honour’s consideration of the applicant’s youth, and his assessment of the applicant’s prospects of rehabilitation.

5. [110]

   In terms of the first of those matters, his Honour said (at [107]):

6. [111]

   His Honour then said (at [111]):

7. [112]

   In terms of the second matter, his Honour said (commencing at [102]):

8. [113]

   The Juvenile Justice Report referred to by his Honour at [104] stated the following under the heading “Attitude and Beliefs”:

9. [114]

   The authors of the report proceeded to note that when discussing any involvement in anti-social behaviour, the applicant appeared to “provide responses that minimised or justified his actions, so that he may be presented in a way that is more socially acceptable”. In particular, the authors said:

10. [115]

    The authors then said:

11. [116]

    The report of Ms Jones, Forensic Psychologist, to which his Honour referred at [105] was prepared at the request of the applicant’s solicitors and tendered in his case on sentence. Ms Jones noted (at paragraph [4.1]) that the applicant denied “any involvement in the physical assault on the victim which resulted in his death”. At [4.2] Ms Jones noted that the applicant “denied any involvement in the aggressive behaviour of the group on the night of the offence” and “was adamant that he did not partake in the assault on the victim and did not even know it had occurred until after the assault had taken place”. She further noted (at [4.3]) that “despite a verbal concurrence that he felt remorse, there was little indication of such”.

12. [117]

    At [6.2] Ms Jones stated the following:

13. [118]

    Ms Jones stated (at [7.2]) that the Violence Risk Scale (“VRS”) estimated that the applicant’s risk for violence was within the low range. Having identified various “therapeutic interventions” which she considered appropriate, Ms Jones concluded (at [10.5]):

Submissions of the applicant

1. [119]

   Counsel for the applicant expressly acknowledged that in order to make out this ground it was necessary to demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. In order to demonstrate that the sentence fell into that category, counsel for the applicant essentially advanced three submissions.

2. [120]

   First, he submitted that the applicant was of a young age at the time of the offending, namely 15 years and 9 months.

3. [121]

   Secondly, he submitted that on the whole of the evidence, the applicant’s prospects of rehabilitation were “perhaps better than his Honour’s categorisation as moderate”. Counsel pointed out, in particular, that:

4. [122]

   Thirdly, he submitted that although his Honour’s finding that “the offence was not spontaneous but was planned and orchestrated by the applicant” was not an error in characterisation, it represented an overstatement of the applicant’s role, and infected his Honour’s ultimate finding as to objective seriousness.

Submissions of the Crown

1. [123]

   The Crown submitted that the findings made by his Honour as to the objective seriousness of the offending, and as to the applicant’s prospects of rehabilitation, were clearly open: Field v R [2015] NSWCCA 332 at [111] per RA Hulme J (Macfarlan JA and Johnson J agreeing).

2. [124]

   In terms of the first of those matters, the Crown submitted that the attack on the victim was obviously not spontaneous, and that such a conclusion was supported by (inter alia) the evidence of discussions to which the applicant was a party. The Crown further submitted that the attack on the victim was one which clearly involved a co-ordination of roles to be undertaken by the members of the group and which, as his Honour found, resulted in a ferocious attack being perpetrated against a defenceless victim.

3. [125]

   In terms of his Honour’s findings as to the applicant’s prospects of rehabilitation, the Crown submitted that such findings were clearly open on the evidence, particularly given the contents of the Juvenile Justice Report.

4. [126]

   Finally, the Crown submitted that the sentencing judge had clearly considered all other relevant matters, including the applicant’s age and the principles applicable to the sentencing of young persons.

Consideration

1. [127]

   His Honour was clearly mindful of the applicant’s age. He made specific reference to it on two separate occasions. In these circumstances, there is no reason to think that his Honour did not take it into account.

2. [128]

   Moreover, the fact that an offender may be youthful does not, of itself, mean that his or her sentence will be reduced on account of that fact. Whilst youth is a mitigating factor in sentencing, and the rehabilitation of young offenders is important, there are limits upon the extent to which such matters can be allowed to influence the sentencing process: R v LLM [2005] NSWCCA 302 at [49] per R S Hulme J (Grove J and Simpson J (as her Honour then was) agreeing). In particular, where a youth conducts himself in a way in which an adult might conduct himself, and in doing so commits a crime of considerable gravity, the protective function of a sentencing court may cease to operate: R v Gordon (1994) 71 A Crim R 459 at 469 per Hunt CJ at CL (McInerney and Sully JJ agreeing); LLM (Supra) at [49]-[51] and the authorities cited therein.

3. [129]

   In light of these principles, and in light of the seriousness of the applicant’s offending, the applicant’s youth, either of itself or in combination with other factors, does not support a finding that the sentence is manifestly excessive.

4. [130]

   The sentencing judge concluded that the applicant’s prospects of rehabilitation were moderate. That finding was amply supported by the evidence and, in particular, by the contents of the Juvenile Justice Report which referred specifically to (inter alia) a failure on the part of the applicant to recognise that his behaviour was problematic. Further, although various forms of therapeutic intervention have been recommended, whether they will bring about a positive outcome remains a matter of complete speculation. In her report, Ms Jones specifically acknowledged that she could not be certain whether any of her recommended interventions would improve the applicant’s rehabilitation.

5. [131]

   A failure on the part of an offender to acknowledge guilt after being found guilty at trial will not, of itself, deprive him or her of a finding that there are good prospects for rehabilitation: Alseedi v R [2009] NSWCCA 185 at [65] per Giles JA (Hidden and McCallum JJ agreeing). However, in the present case, the evidence to which his Honour expressly referred supported the conclusion that he reached.

6. [132]

   Finally, at [68] his Honour said:

7. [133]

   The submission of counsel for the applicant that his Honour overstated the applicant’s role in the offending was based upon the proposition that his Honour had found that the applicant “orchestrated” the offending. His Honour expressly stated at [68] that he did not consider that the evidence established that fact. Counsel’s submission was therefore based upon a false premise. Moreover, his Honour’s findings as to the objective seriousness of the offending were open on the evidence.

8. [134]

   It follows that this ground is not made out.

9. [135]

   The following orders should be made:

   1. (1)

      On the conviction appeal:

   2. (2)

      On the sentence appeal: