Application by Ashraf Mencarious pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   Ashraf Mencarious (“the applicant”) has made an application, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”), for an inquiry into his conviction in 2006 for the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

2. [2]

   The applicant requests that, pursuant to s 79(1)(b) of the Act, his case be referred to the Court of Criminal Appeal to be dealt with as an appeal against conviction according to the Criminal Appeal Act 1912 (NSW).

3. [3]

   Following a six-day trial by jury in the Supreme Court, the applicant was found guilty of the murder of his wife, Nevine Youseff. On 17 July 2006, he was sentenced by Grove J to a non-parole period of 20 years, with a balance of term of 6 years and 8 months, being a total sentence of 26 years and 8 months: R v Mencarious [2006] NSWSC 719 (“the remarks on sentence”). In 2008, the applicant’s appeal against his conviction and sentence was dismissed by the Court of Criminal Appeal: Mencarious v The Queen (2008) 189 A Crim R 219; [2008] NSWCCA 237 (“the 2008 appeal judgment”). Following the decision of Muldrock v R (2011) 244 CLR 120; [2011] HCA 39, the applicant appealed against his sentence a second time in 2014. This appeal was also dismissed by the New South Wales Court of Criminal Appeal: Mencarious v R [2014] NSWCCA 104 (“the 2014 appeal judgment”).

Background

1. [4]

   In the 2008 appeal judgment, McClellan CJ at CL (with whom James and Fullerton JJ agreed) outlined the events leading up to the victim’s death, at [5], as follows:

2. [5]

   McClellan CJ at CL noted that the applicant gave evidence at trial. The applicant said that he told Ms Youseff that their relationship was finished. She started screaming for help in Arabic, although he was doing nothing to harm her. The applicant became alarmed and put his left hand over her mouth to stop her screaming, prompting her to bite his middle finger “furiously”, causing him “enormous pain”. They were “struggling” and “fell … off the bed and onto the floor” with his finger still in her mouth. He grabbed the bottle of bourbon and repeatedly struck her on the head with it. The applicant gave evidence that, at that point:

3. [6]

   The applicant gave evidence that at that point he did not know if Ms Youseff had died. He did not touch her. He put his shoes on, walked down the fire escape to the car park and drove to a police station to report the incident. The applicant stated that he did not intend to kill Ms Youseff, stating that, before she screamed, his intention was to leave as he felt that the marriage would not work and that he had been “used”. When the applicant was cross-examined as to his intent, he accepted that he had lost control of himself when he was in “excruciating pain” but maintained that he had remained “quite calm” up until that point.

4. [7]

   Grove J, in his remarks on sentence, made findings with respect to the applicant’s conduct on the night of Ms Youseff’s death. His Honour noted, at [22], that the applicant’s account was the only available testimony regarding what occurred in the hotel room after he had “engaged in sexual intimacy” with her and that the applicant appeared to be “contriving [his] answers” when giving evidence.

5. [8]

   Grove J then found that:

6. [9]

   As noted by McClellan CJ at CL in the 2008 appeal judgment, at [76], the Crown case was that the applicant committed the murder of Ms Youseff by a deliberate act of asphyxiation:

7. [10]

   As such, an essential issue which arose at the trial, relevant to the present application, was whether the applicant had deliberately asphyxiated Ms Youseff with the requisite intent or whether her asphyxiation was an accident.

8. [11]

   At trial, two experts gave evidence as to the cause of Ms Youseff’s death. McClellan CJ at CL, in the 2008 appeal judgment, summarised the experts’ evidence as follows:

9. [12]

   The defence case at trial, as summarised by McClellan CJ at CL, at [53], was that the applicant “responded to his finger being bitten and without criminal intent attacked and killed the deceased”.

10. [13]

    McClellan CJ at CL, at [45], contextualised the reason for defence counsel at trial taking this position as follows:

11. [14]

    In considering the issues of “Accident and self-defence” raised on appeal, McClellan CJ at CL, at [77], elaborated further on the issues of causation and intent:

Part 7: The relevant legislative provisions and principles

1. [15]

   The relevant legislative provisions are ss 78 and 79 of the Act. Section 78 provides:

2. [16]

   Section 79 provides:

3. [17]

   The test to be applied in determining an application pursuant to s 78 was set out by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251. His Honour stated, at [6], that:

4. [18]

   Johnson J elaborated on what constitutes a “doubt or question as to guilt” as follows:

5. [19]

   These paragraphs have been cited with approval by Beech-Jones J, as his Honour then was, in Gillies, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [9]; by Garling J in Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061, at [7]; and by N Adams J in Application by Yu Hai Li pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 544 at [25].

6. [20]

   It should be noted that since the judgment of Johnson J in Holland the Court of Appeal has eschewed reliance on language such as “unease or disquiet” when considering the test in s 79(2) of the Act. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA (with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreed) stated, at [65]:

7. [21]

   In Svanda, Garling J observed, at [8], that the doubt or question as to guilt “is not narrowly confined”. In that case, Garling J cited Basten JA in Sinkovich, where his Honour made the following comment, at [27], as to the scope of the inquiry:

The present application

1. [22]

   In essence, the applicant’s application pursuant to s 78(1) of the Act is based upon two propositions. The first is that the applicant’s evidence at trial established that, immediately before Ms Youseff became motionless, the two of them had been in a particular position which may have inadvertently fatally obstructed her capacity to breathe through a mechanism known as “positional asphyxia”. The second proposition, which the applicant contends arises from a report prepared by Professor Peter S J Ellis, consultant forensic pathologist, is that “positional asphyxia” may have been a cause of her death.

2. [23]

   The applicant filed additional material in support of the present application. This material comprised the report of Professor Ellis, dated 30 July 2018, and an excerpt of a newspaper article titled “Dead inmate held by untrained guards”.

3. [24]

   Although s 79(4) of the Act provides that these are not judicial proceedings, the Court may consider any written submissions made by the Crown with respect to an application. The parties exchanged the following submissions:

   1. (1)

      Applicant’s written submissions filed 8 September 2021.

   2. (2)

      Submissions on behalf of the Attorney General for New South Wales dated 15 December 2021.

   3. (3)

      Further submissions on behalf of the applicant dated 28 January 2022.

The applicant’s evidence

1. [25]

   The applicant filed the report of Professor Ellis, dated 30 July 2018, on 8 September 2021. Professor Ellis stated in his report that he had been supplied with certain material by the applicant and the applicant’s sister:

   1. (1)

      The autopsy report prepared by Dr Little and the trial transcript of her evidence;

   2. (2)

      A “diagram” prepared by the applicant;

   3. (3)

      The remarks on sentence;

   4. (4)

      The two appeal judgments;

   5. (5)

      An excerpt of the trial transcript of the applicant’s evidence; and

   6. (6)

      An excerpt of the transcript of an undated interview on ABC News Radio.

2. [26]

   Item (2) was not reproduced in Professor Ellis’ report. For the purposes of this application, I presume it was identical to a sketch (“the sketch”) that appears in the applicant’s application to the Court. The sketch is annexed to this judgment (Annexure A) and described in the application as “a visual understanding of the physical confrontation that occurred on that night”. The references to “injuries 11 & 12” presumably refer to paragraphs of the application, which are as follows:

3. [27]

   As to item (5), it is not apparent from Professor Ellis’ report what parts of the trial transcript of the applicant’s evidence were provided to him.

4. [28]

   Item (6) did not form part of the application. However, the application included transcribed excerpts of an interview that was broadcast on ABC News Radio in 2013, concerning the death in Sydney of Roberto Laudisio Curti, following him being constrained by police. I assume, for the purposes of the application, that item (6) was the same transcript. Its relevance is that the applicant stated that the interview alerted him for the first time to “positional asphyxia” as a means by which a person may die from asphyxia.

5. [29]

   Professor Ellis was asked five questions, as follows:

6. [30]

   Professor Ellis identified certain limitations to his opinions. First, he noted that the autopsy report of Dr Little was “comprehensive” but contained “no photographic recording” to visualise her findings. Second, he noted that the sketch did not provide a clear, detailed, or objective representation of the “relative positions of the two bodies” or the strength with which the applicant gripped Ms Youseff. This was identified as a “significant disadvantage” given the importance of asphyxia in the case. Third, Professor Ellis noted that it would be inappropriate for him to comment on the evidence given by Associate Professor Hilton at trial, as Professor Ellis was “completely unaware of the information available to him at that time”.

7. [31]

   In his report, Professor Ellis provided some background on the meaning of the term “asphyxia” and the subcategories of this concept, which are classified according to the “underlying processes that are being hindered in the asphyxial event”. Professor Ellis defined asphyxia as:

8. [32]

   The relevant subcategory of asphyxia identified by Professor Ellis was “mechanical asphyxia”, in which oxygen is “hindered from travelling from the outside air into the lungs”. Forms of mechanical asphyxia include that which is “positional in nature, due to strangulation, or… following a traumatic or crush asphyxial event”.

9. [33]

   Professor Ellis explained the concept of “positional asphyxia” as follows:

10. [34]

    With respect to the applicant’s specific questions regarding positional asphyxia, Professor Ellis stated:

11. [35]

    Professor Ellis opined that the presence of multiple “conjunctivae petechia haemorrhage[s]” which were found in Ms Youseff’s eyes was consistent with “some form of mechanical asphyxia”.

12. [36]

    In response to the questions posed by the applicant, Professor Ellis stated:

13. [37]

    The applicant’s application also included a photocopy of what appears to be a newspaper article, undated and unidentified, titled “Dead inmate held by untrained guards”. It describes an ongoing coronial inquest into the death of David Dungay at Long Bay prison hospital, in which counsel assisting the coroner made submissions that prison guards who restrained the deceased had not been trained in “positional asphyxia risk”.

The parties’ submissions

1. [38]

   In essence, the applicant submitted that Professor Ellis’ report constitutes fresh evidence which:

2. [39]

   The applicant submitted that the report demonstrates that Professor Ellis “could not rule out positional asphyxia” as a cause of death.

3. [40]

   The applicant extracted two passages from his trial evidence as to how he and the deceased were positioned during the struggle which, he submitted, were consistent with the sketch as to their respective positions. He continued:

4. [41]

   The applicant submitted that the evidence given by Dr Little at trial is consistent with the applicant’s own evidence at trial, such that unexplained injuries on the back of the victim’s neck identified by Dr Little could have been caused by his belt buckle or jeans when the applicant and the victim were positioned on the floor.

5. [42]

   The applicant submitted that the report of Professor Ellis demonstrated error which causes “unease or disquiet” in both the remarks on sentence and the 2008 appeal judgment.

6. [43]

   The applicant submitted that Grove J erred in that, “in spite of the lack of evidence” as to the mechanics of how the deceased was asphyxiated, his Honour made findings as to the applicant’s intent. The applicant placed emphasis on his Honour’s statement, at [25] of the remarks on sentence, that the means of asphyxiation were unknown:

7. [44]

   The applicant submitted that Grove J “further erred” in his Honour’s findings at [26] of the remarks on sentence, extracted above at [8], regarding the applicant’s “subsequent conduct” following the offence. The applicant submitted that:

8. [45]

   To substantiate this submission, the applicant reiterated his evidence at trial that he had “attempted to use the elevator to go down to reception and find help” for Ms Youseff, but that the elevator was not working.

9. [46]

   With respect to the 2008 appeal judgment, the applicant submitted that McClellan CJ at CL “noted the lack of evidence as to intent”, at [11] of that decision, and that the absence of the “fresh evidence” concerning positional asphyxia at trial:

10. [47]

    To substantiate this proposition, the applicant referred to the comment of McClellan CJ at CL at [12] that:

11. [48]

    The respondent submitted that the respective positions of the applicant and Ms Youseff in the sketch were inconsistent with the evidence led at trial and, in any event, implausible.

12. [49]

    The respondent conceded that the sketch was “not necessarily inconsistent” with the applicant’s two extracted passages from the transcript of his trial evidence as to his and Ms Youseff’s relative positions on the floor during the altercation. However, the applicant has not explained how he shifted from being behind Ms Youssef while they were on the bed to being in front of her, as depicted in the sketch, without having removed his finger from her mouth. The respondent submitted that the minor injuries to the applicant’s finger support this implausibility because movement of the kind inferred by the applicant would result in “considerable” injuries to his finger.

13. [50]

    The respondent also submitted that the applicant’s account is implausible, as he could not have caused the head injuries suffered by Ms Youseff from the position depicted in the sketch. Specifically, the respondent submitted that it is implausible for the applicant to have inflicted these injuries while his finger remained in Ms Youseff’s mouth and while he was maintaining sufficient pressure on her back and neck area to cause positional asphyxia to occur.

14. [51]

    Further, the respondent submitted that, even if positional asphyxia was a causative contribution to Ms Youseff’s death, the totality of the evidence left no question or doubt as to the applicant’s guilt.

15. [52]

    In support of this submission, the respondent referred to the fractured nature of the relationship between the applicant and Ms Youseff, in which she had obtained an apprehended violence order applicable to the applicant, and the failure of the applicant to seek medical or other assistance for her following the altercation. The respondent additionally emphasised that the Crown case as put to the jury at trial “included an element of mechanical asphyxia” in the form of the applicant applying pressure to Ms Youseff’s “rib area”. The respondent submitted that this was significant because, in reaching a guilty verdict, the jury “evidently did not consider that the potential involvement of such a process gave rise to a doubt as to the applicant’s intention”.

16. [53]

    The applicant’s submissions in reply sought to clarify why Professor Ellis was provided with limited material upon which to base his report and to respond to the respondent’s submissions regarding any doubt or question as to guilt.

17. [54]

    First, in response to the respondent’s submission that the material provided to Professor Ellis was limited, the applicant submitted that the material included the “fundamental evidence of the case”. The applicant submitted that he was bound by “financial limitations” in preparing the application. He submitted that these limitations may be alleviated, and a “more comprehensive report” prepared by Professor Ellis based on “all the material presented at trial”, if the present application was successful, due to the potential availability of Legal Aid funding.

18. [55]

    Second, the applicant responded to the respondent’s submission that there is no doubt or question as to guilt in the instant case. In response to the respondent’s submissions regarding the limitations of the report of Professor Ellis, the applicant submitted that, despite the qualifications which Professor Ellis expressed, the availability of such evidence would have been “critical” and that it is unnecessary for the report to prove that positional asphyxia produced a causative effect with respect to Ms Youseff’s death. The applicant submitted that the report would be “critical”, in the sense that such evidence would have provided an alternative explanation to the Crown case regarding asphyxiation and would have prevented the Crown from “introducing intent as the only possible scenario”. If this evidence was available, the applicant submitted, then it is possible that the jury could have held a reasonable doubt as to his guilt.

19. [56]

    The applicant submitted that the sketch was consistent with the injuries outlined in Dr Little’s autopsy report, which was available at trial, in that it depicted a “physical altercation … that began on the bed and ended on the floor”. In response to the respondent’s submissions regarding the deficiencies of the sketch, the applicant submitted that it is only intended to represent the position of himself and Ms Youseff at the “end of the struggle”, as it would be “impossible” for him to give evidence as to their exact movements. In submitting that the sketch was consistent with Dr Little’s autopsy report, the applicant stated that it is “possible and reasonable” that the injuries to Ms Youseff’s face were caused by their fall from the bed onto the floor. The applicant further referred to an excerpt from Dr Little’s evidence at trial, in which she gave evidence that a “very forceful punch” would have been required to produce a fracture to the ribs of the kind inflicted upon Ms Youseff.

20. [57]

    Professor Ellis’ report was appropriately premised upon material that was provided to him, and in any event was, of necessity, qualified. Professor Ellis noted, in the preamble to his report:

21. [58]

    Professor Ellis made the following observations about the possibility of positional asphyxia being indicated by the sketch:

22. [59]

    Professor Ellis responded to the first two of the five questions that were posed to him, which concerned the likelihood that positional asphyxia caused Ms Youssef’s death, as follows:

23. [60]

    In response to the remaining three questions, which concerned conjunctivae petechia haemorrhages, which were haemorrhages that were observed by Dr Little in the lining of Ms Youseff’s eyes during the autopsy, Professor Ellis discounted the relevance of that phenomenon in determining the mechanics of the asphyxia that was suffered by her. For the sake of completeness, I reproduce his response to those questions, as follows:

Consideration

1. [61]

   The applicant contended that the expert opinion of Professor Ellis, as expressed in his report, raised a real possibility that Ms Youseff’s death was due to positional asphyxia, consequent to the applicant placing pressure on her body that constricted her capacity to breathe. The applicant submitted that such pressure was applied by him unwittingly, as he attempted to remove his finger from her mouth, and therefore Professor Ellis’ opinion raises a doubt as to the applicant’s guilt for the offence of murder.

2. [62]

   Professor Ellis’ qualified opinion hinged upon the respective positions of the bodies of the applicant and Ms Youseff during their struggle, as evidenced by the sketch. Accordingly, it is appropriate to consider the extent to which the respective positions in the sketch are supported by the evidence that was adduced in the trial.

3. [63]

   A photograph taken by police of Ms Youseff’s body in situ in the hotel room depicts her lying stretched out on her back, parallel and immediately alongside the bed, with her head positioned approximately 500mm from the wall against which the bedhead was positioned.

4. [64]

   An examination of the entirety of the applicant’s evidence as to the respective positions of both him and Ms Youseff during the struggle, albeit with some repetition of extracted passages, is appropriate. The applicant’s account in his examination in chief as to what occurred was to the effect that he initially grabbed Ms Youseff when she screamed. At that time, she was on the bed:

5. [65]

   And later:

6. [66]

   The applicant explained what he did immediately after this point:

7. [67]

   The applicant was extensively cross-examined as to his and Ms Youseff’s respective positions while they were struggling on the floor. At no point in his evidence did he describe positions that could reasonably be interpreted as those portrayed in the sketch, although he did say that he could not recall their positions throughout the struggle; for example:

8. [68]

   The applicant described how at one point Ms Youseff was kneeling forward and he was on top of her. However, that description is strongly suggestive of their bodies both facing in the same direction and his body being on top and further forward than her body:

9. [69]

   The applicant’s evidence was that Ms Youseff moved around while they were on the floor:

10. [70]

    The autopsy revealed five lacerations to Ms Youseff’s scalp. The largest was star-shaped with four radiating branches, the longest being 63mm long. The applicant’s evidence was that, with his right hand, he repeatedly struck her on the head with the bottle. Ms Youseff continued to bite the middle finger of his left hand until, “not long” after he last struck her on the head, she let go and rolled over on her side:

11. [71]

    As noted earlier, Dr John Hilton, an Associate Professor in pathology, was called by the defence to give evidence, which he did after having sat through the applicant’s evidence. An aspect of his evidence cast doubt on the applicant’s account of the struggle. Dr Hilton noted that blood was located on the weight-bearing part Ms Youseff’s right foot. He was asked:

12. [72]

    In cross-examination, he was questioned further on this issue:

13. [73]

    In re-examination he was asked:

14. [74]

    The evidence at trial included photographs of the laceration to the applicant’s left middle finger. It was minor in nature. I conclude that the likely source of “a puddle of blood” on the floor was the lacerations to Ms Youseff’s head. I note that Dr Hilton’s deduction that Ms Youssef placed her right foot on the ground after she was hit on the head is inconsistent with the applicant’s account at trial that, following the blows to her head, at which point she was on her knees, the applicant withdrew his finger and she rolled forward and onto her back.

15. [75]

    The applicant submitted that the positions depicted in the sketch accord with his evidence at trial as to the positions of his and Ms Youseff’s bodies during the struggle. However, a reading of the entirety of the transcript of the applicant’s evidence at trial as to how he and she were positioned during the struggle does not assist his submission that they were positioned as depicted in the sketch at any point during their struggle.

16. [76]

    I note that the applicant’s evidence at trial was that there were movements during the struggle which he did not precisely recollect. His evidence was given approximately 15 months after the incident. For the sake of completeness, I find that it is not reasonably likely that he subsequently recalled the positions that appear in the sketch.

17. [77]

    As noted, the applicant made complaints concerning the trial judge’s findings in his remarks on sentence. Those complaints are findings that the applicant does not accept, but do not raise fresh matters of evidence or unavailable inferences that were found to the requisite standard of proof. In particular, in relation to his claim that the elevators had been turned off, I note that this proposition was not put to the hotel manager, who gave evidence at the trial.

Conclusion

1. [78]

   A reading of the entirety of the transcript of the applicant’s evidence at trial as to how he and Ms Youseff were positioned during the struggle does not assist the applicant’s submission that they were positioned as depicted in the sketch at any point during their struggle.

2. [79]

   I conclude that the respective positioning of the applicant and Ms Youseff in the sketch is contrary to the applicant’s evidence in that respect at his trial and accordingly, in my view, the sketch should be disregarded. Since Dr Ellis’ opinion depended upon the positioning in the sketch, his opinion is of no weight in my consideration of the application. There is no other aspect of the case that causes me to entertain a doubt as to the applicant’s guilt of the crime of murder.

3. [80]

   Accordingly, pursuant to ss 79(3)(a)(i) and (b) of the Act, I decline to further deal with the application.

Order

1. [81]

   I make the following order: