R v Bragias

1. [1]

   McCALLUM J: Harrison Bragias was arraigned on 20 October 2014 on a joint indictment (together with Wahib Fajloun) containing one count of robbery in company with wounding contrary to s 98 of the Crimes Act 1900 (NSW) (count 1) and an alternative count of taking a motor vehicle with assault contrary to s 154C(2) of the Crimes Act (count 2). The trial proceeded before McClintock SC DCJ with a jury over 19 days. The jury found each accused not guilty of count 1 but guilty of count 2.

2. [2]

   Mr Bragias appeals against his conviction on the sole ground that the verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence. [1] There is no challenge to the judge’s directions to the jury (which, with respect, were impeccable) or to any of the many judgments and rulings given throughout the trial.

3. [3]

   Mr Bragias was sentenced on 2 April 2015 for the offence in count 2 together with two unrelated offences to which he had pleaded guilty before the trial (an assault occasioning actual bodily harm and an offence of demanding money with menaces). The judge sentenced Mr Bragias to an aggregate sentence of imprisonment for 4 years and 2 months with a non-parole period of 2 years and 9 months expiring on 12 April 2016. Mr Bragias was released to parole on that date, before this appeal was heard (the notice of appeal was not filed until 14 December 2015). There is no appeal against sentence.

Principles to be applied

1. [4]

   The principles to be applied in determining a ground of appeal that a verdict is unreasonable, or cannot be supported, having regard to the evidence are well settled but nevertheless require careful statement. In the decision of the High Court in M v The Queen, [2] it was said [3] that the question the appellate court must ask itself is 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. The relevant passage continues:

2. [5]

   In its application of the test stated in M, which has since been consistently reaffirmed, the appellate court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". [4] The test is not to be confused with the legal question whether a verdict of guilty was open on the evidence. [5] But nor is it to be confused with the function of the jury at trial of determining whether the offence has been proved beyond reasonable doubt.

3. [6]

   In his written submissions, Mr Bragias submitted that “the principled approach” to the task includes the following proposition:

4. [7]

   Those words are drawn from the joint judgment in M [6] and are frequently cited as if they state a discrete principle of law. To construe the words in that way overlooks the context in which they were said and, in my respectful opinion, inverts or at least misconceives their import.

5. [8]

   The distinction between a doubt experienced by the appellate court (as a subjective event) and a doubt the jury should have experienced (a normative proposition) arose acutely in M. The primary judgment in the Court below had been delivered by Sully J who, with his Honour’s customary disciplined approach, felt bound to dismiss the appeal applying the law as it was then understood, while recording that he had “in purely subjective terms a feeling of anxiety and discomfort about the verdicts of guilty that were returned”. [7]

6. [9]

   The other members of the bench (Cripps JA and Finlay J) were not plagued by such sensitivity; they concurred in dismissing the appeal but disassociated themselves from the subjective feeling recorded by their brother judge. It was in that context that the discussion of the distinction arose.

7. [10]

   The joint judgment in the High Court in M discussed competing views expressed in earlier decisions as to how the task for the appellate court should be expressed. In Rattan v The Queen, [8] Barwick CJ had expressed the view that there was no practical consequence whether the task was expressed by reference to “a doubt entertained by the court itself” or “a doubt which the court decides that any reasonable jury ought to entertain”, stating [9] that it was the reasonable doubt in the mind of the appellate court which was the operative factor. His Honour was of the view that any debate as to whether that was expressed as a doubt entertained by the court itself or one the court decides any reasonable jury ought to entertain amounted to “circumlocution”.

8. [11]

   In subsequent decisions, [10] other members of the High Court had felt it necessary to qualify those remarks, emphasising that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. As it was put in the joint judgment in M: “to ask only whether the court has a doubt may place insufficient emphasis on the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner which a court of appeal cannot”. [11]

9. [12]

   It was against that discussion that it was said, in the joint judgment in M [12] :

10. [13]

    To elevate to a proposition of law the explanatory observation that “in most cases” a doubt experienced by the appellate court will be one a jury ought also to have experienced is to revert to the debate the High Court sought to quell in M.

Summary of the Crown case

1. [14]

   Before turning to record relevant aspects of my own independent assessment of the evidence, it is helpful to give an overview of the Crown case. What follows is a summary of the case put by the Crown at trial. (I am not here recording my assessment of that case, although much of what follows was not in dispute at the trial.)

2. [15]

   The victim of the assault was Mr Massimo Lorenzini. Sometime before the events giving rise to the charges on the indictment, he and Mr Bragias, together with their respective girlfriends, had spent a weekend in a hotel, incurring a substantial bill (including the loss of a bond, owing to the state in which the room was left). Mr Bragias paid the bill; Mr Lorenzini agreed to repay his share (the women, it seems, were exempt).

3. [16]

   A month or so later, events occurred which prompted Mr Lorenzini to decide that he should not have to repay that debt to Mr Bragias. Mr Lorenzini had, for a number of years, been collecting car parts with a view to building a car. He considered the parts were worth $7,000 or $8,000. He had been keeping the parts at the workshop of a mechanic. However, he did not have the funds to continue the project. The mechanic asked him to move the parts to somewhere else until he was ready to build the car.

4. [17]

   As an interim measure, Mr Lorenzini took the parts to be stored in the garage of premises occupied by Mr Bragias. He went to collect them two days later but was told, by Mr Bragias, that they had been taken by a man named “Wazza” (the nickname of the co-accused, Mr Fajloun).

5. [18]

   From that time, Mr Bragias continued to pursue Mr Lorenzini for the outstanding debt from the hotel and Mr Lorenzini failed or refused to pay it.

6. [19]

   On the evening of the alleged offence, 3 February 2013, Mr Lorenzini agreed to meet Mr Bragias to discuss the debt. The meeting place, nominated by Mr Bragias, was outside a brothel named “Mandy’s” at Taren Point. Mr Lorenzini drove there with his girlfriend, Jasmin McMahon and an old school friend, Max Thornton. Mr Bragias was there with the co-accused, Mr Fajloun. Also present when Mr Lorenzini arrived was a man identified as Mr Danny Youssef.

7. [20]

   The evidence at the trial concerning the meeting is considered in detail below. In short, the Crown case was that, when Mr Lorenzini told Mr Bragias that he had brought no money, the co-accused, Mr Fajloun, punched Mr Lorenzini and threatened him with a knife, demanding the keys to his car. The car was in fact owned by Mr Lorenzini’s father but was used by Mr Lorenzini, who was paying it off to his father. Mr Lorenzini surrendered the keys and Mr Bragias left in Mr Lorenzini’s car, leaving Mr Lorenzini, Ms McMahon and Mr Thornton at the scene. Mr Thornton contacted a friend, Mr Laubhan, who came to collect them in his car. At Mr Lorenzini’s request, Mr Laubhan dropped Mr Lorenzini and Ms McMahon at Miranda Police Station, where Mr Lorenzini made a complaint that he had been assaulted and had his car stolen.

8. [21]

   Mr Lorenzini made a full statement to police about those events, commencing that night and continuing the following morning (interrupted by a trip to hospital for treatment of his injuries). Ms McMahon also made a statement to police the next morning, similarly asserting that Mr Lorenzini had been assaulted and had his car stolen.

9. [22]

   At the trial, however, Mr Lorenzini and Ms McMahon each claimed general amnesia in respect of the whole incident. Accordingly, the Crown case rested heavily on their statements to police, which were admitted for all purposes at the trial.

Applicant’s submissions

1. [23]

   The basis for the applicant’s contention that the jury’s verdict is unreasonable, or cannot be supported, having regard to the evidence was summarised in three propositions in the applicant’s written submissions. I hope I do no disservice to those propositions in summarising them as follows:

Assessment of the evidence

1. [24]

   It may be accepted that Mr Lorenzini’s various accounts of the events of the evening included deliberately false statements (explained below). In my assessment, however, his account of having been assaulted and having his car stolen was not only open to be accepted but was compelling.

2. [25]

   It is helpful to consider the relevant accounts in the order in which they were given, beginning with the SMS messages Mr Lorenzini sent to Mr Bragias immediately after their meeting, as follows:

3. [26]

   At 11:43 pm Mr Bragias texted back: ‘I don’t know what you’re talking about, bro, I’ll look into it for you’. Mr Lorenzini replied at 11:44 pm, saying ‘Okay, well, tell my dad that you set me up, bashed me and stole his car’.

4. [27]

   At 2:28 am, Mr Bragias sent a further message to Mr Lorenzini saying:

5. [28]

   At the time he sent the message saying “my dad’s gone to the cops”, it was in fact Mr Lorenzini himself who had gone to police. At the trial, he accepted that he had told police about that message. [13]

6. [29]

   When he first attended Miranda Police Station, before making a formal statement, Mr Lorenzini gave a brief account of events to Constable Stripp, as follows: [14]

7. [30]

   Constable Stripp’s note also recorded that an ambulance was called at 12.15 am and arrived at 12.25 am.

8. [31]

   Mr Lorenzini began making his formal statement before the ambulance was called. He gave an account of the events giving rise to the dispute about the hotel debt, as follows:

9. [32]

   Mr Lorenzini gave a detailed account of the arrangements leading up to his meeting with Mr Bragias outside the brothel. The brothel was at the top of a ramp off Parraweena Rd and had a large carpark. Mr Lorenzini said that, when he first arrived in the carpark, Mr Bragias invited him into a room. At that point he saw other people there including Danny Youssef (sitting in the driver’s seat of a car) and “Wazza”, who came out of the building with a female. Mr Lorenzini described her as “a fat looking thing”. Wazza spoke to her and she kept saying “No, in the room, in the room”.

10. [33]

    The statement revealed the fear Mr Lorenzini was in at that time. He said:

11. [34]

    Mr Lorenzini went down to Parraweena Rd at the bottom of the ramp leading up to the brothel and spoke to both accused there. Mr Bragias asked where the money was and Mr Lorenzini responded “I don’t have money right now”. Mr Fajloun said “so what did we come here for?” to which Mr Lorenzini replied “to talk”.

12. [35]

    Mr Lorenzini’s account of what happened next included detail of the kind he is, in my view, unlikely to have made up. He said that he was planning to tell Mr Bragias and Mr Fajloun that he didn’t owe any money due to his belief that Mr Bragias had stolen his car parts, but that he did not get the chance to say that because Mr Fajloun hit him at that point (twice, to the left side of his head). He said he stumbled back onto a tree and that Mr Fajloun was walking towards him again. The statement recorded that, at that point, Ms McMahon opened the car door and tried to stop “Wazza” from getting to Mr Lorenzini again by trying to block him.

13. [36]

    Mr Lorenzini’s statement continued:

14. [37]

    The reference to “Danny” was a reference to Mr Youssef. He gave evidence in the trial. A reading of the transcript gives the impression that he was a difficult witness and, in particular, that he would have created a firm impression that he was hostile to the Crown, who first obtained leave for him to refresh his memory from his statement and ultimately obtained leave to cross-examine him.

15. [38]

    Mr Youssef drove Mr Bragias to the meeting. He waited in his car while Mr Bragias went down the ramp to speak to Mr Lorenzini. In many respects, his account accorded with Mr Lorenzini’s. Of particular note is his evidence about hearing a girl scream. In his statement to police, he was recorded as having said:

16. [39]

    Although the statement was not in evidence, Mr Youssef was cross-examined about those words at the trial, pursuant to the leave granted by the trial judge. In cross-examination by the Crown, Mr Youssef accepted that was what was recorded but said the police had misheard him, saying “I heard a car screech”. On a reading of the transcript, that was implausible. The jury is likely to have accepted that the statement to police accurately recorded what Mr Youssef told police and that it was true. The hearing of a scream at that time was powerful corroboration of Mr Lorenzini’s account of being assaulted and having his car taken against his will rather than engaging in a civilised negotiation of security for a debt.

17. [40]

    Mr Laubhan gave evidence in the trial and was allowed to refresh his memory from his statement to police, which was admitted into evidence. [15] He collected Mr Lorenzini, Ms McMahon and Mr Thornton from Parraweena Rd. He said Mr Lorenzini asked him to take him to Miranda Police Station, saying “some lebo stole my car” and “they’re not getting any fucken’ money!” Mr Laubhan said Mr Lorenzini was “visibly upset, shaking and sweating”. Mr Laubhan did not notice any injury on Mr Lorenzini. He was briefly cross-examined and confirmed that he had not noticed any injury or any blood.

18. [41]

    Returning to Mr Lorenzini’s account, his statement recorded his attempts to contact Mr Bragias, including the sending of the SMS messages set out above. The statement also recorded that Mr Lorenzini started giving the statement to Detective Glennan that evening but that, within an hour or so, Mr Lorenzini’s eye was getting more painful and he had blurry vision, so police called an ambulance and he was taken to Sutherland Hospital.

19. [42]

    The statement recorded that Mr Lorenzini was released from the hospital at about 6.30 am and attended Miranda police station again to finish making his statement, this time with Detective Watkinson.

20. [43]

    At the conclusion of the statement, Mr Lorenzini listed items that were in the car when it was taken by Mr Bragias. The items listed included a basket of Mr Lorenzini’s dirty clothes, which needed to be washed as Mr Lorenzini’s washing machine at home was broken. He told police he planned to wash the clothes at his girlfriend’s house. Also in the car were his work boots and fishing equipment including two fishing rods and reels worth about $350-$400 each.

21. [44]

    It was the fact (clearly established at trial and common ground among the parties) that Mr Thornton went with Mr Lorenzini and Ms McMahon to the meeting with Mr Bragias. However, Mr Lorenzini made no reference to Mr Thornton in his first statement to police. Following the arrest of Mr Fajloun and Mr Bragias, Mr Thornton himself attended Miranda police station to make a statement about the events of that evening. It is clear enough that Mr Thornton’s purpose was to exculpate Mr Bragias. However, his assistance was a mixed blessing. The version Mr Thornton gave to police was that he had attended the meeting with Mr Lorenzini and that, contrary to Mr Lorenzini’s account to police, he had handed over his car voluntarily to Mr Bragias as “collateral” for the supposed debt.

22. [45]

    That had implications for Mr Lorenzini’s credibility, since he had made no mention of Max Thornton in his statement. Police took a further statement from him on 8 February 2013 (exhibit 12) in which he asserted (falsely) that Mr Thornton was not with him on the night. Mr Lorenzini said:

23. [46]

    In that second statement, Mr Lorenzini also volunteered (falsely) that the person who collected him and Ms McMahon from Taren Point was a friend of his from work, named “Jay”. He said that it was Jay who dropped him off at Miranda Police Station and that his other friend “Chris” was in the car with Jay. Mr Lorenzini went so far as to solicit Jay to make a false statement to police to support that lie (which Jay acknowledged to have been a false statement).

24. [47]

    On 5 March 2013, Mr Lorenzini made a further statement to police in which he admitted the lie of the second statement, saying:

25. [48]

    The statement added that Mr Thornton had reminded Mr Lorenzini that he (Mr Thornton) had a child and did not “have time for the drama”, asking Mr Lorenzini to tell police that he (Mr Thornton) was not there. In the third statement, while admitting the earlier lie, Mr Lorenzini reiterated that his car was “definitely robbed” from him. He said there was no agreement for him to give the car as collateral to Mr Bragias, saying:

26. [49]

    While the statement made by Mr Thornton to police assisted Mr Bragias (by asserting that Mr Lorenzini handed the car over voluntarily as “collateral” rather than in response to an assault by Mr Fajloun), the downside for Mr Bragias was that it placed him squarely at the scene, contrary to his responses to Mr Lorenzini in the SMS messages set out above.

27. [50]

    Incidentally, Mr Thornton’s statement also corroborated some of the detail of Mr Lorenzini’s statement, including the statement that a basket of washing had been carried to the car when they left for Taren Point. That is the kind of detail that gives an account a ring of truth. In reality (without overlooking the fact that the Crown bore the onus of proof) the defence case was one of consent or nothing.

28. [51]

    Mr Thornton’s account is important in that context. As to the critical aspect of the encounter, he said.

29. [52]

    Mr Thornton gave evidence at the trial. In a trial in which almost every civilian witness called by the Crown was hostile and was cross-examined by the Crown, Mr Thornton appears to have been the most difficult of all. On a reading of the transcript, it seems likely that he would have made a very poor impression as a witness. His attitude to the process of giving evidence was positively cavalier. The judge made many remarks attempting to bring his focus to the importance of the task of giving evidence.

30. [53]

    Mr Thornton’s account as to why he attended the police station to make a statement was particularly strange. He said, in effect, that he just happened to hear (he would not say from whom) that “two people got locked up for the incident with Massimo” and that he went to make a statement to tell police what really happened. He was cross-examined about that evidence in the trial by the Crown, in the following exchange:

31. [54]

    The judge directed the jury in the clearest terms that, if they believed Mr Thornton’s evidence (as to the car being handed over voluntarily), or thought his evidence might be true, they must acquit the accused. It is hardly surprising that the jury did not believe Mr Thornton’s evidence on that issue. In his sentencing judgment, the judge described Mr Thornton as “unconvincing”, noting that his evidence contained material inconsistencies. Based on my reading of the transcript, I suspect that was something of an understatement on his Honour’s part. In my assessment, the jury had every reason to reject Mr Thornton’s account.

32. [55]

    Mr Lorenzini’s girlfriend, Ms McMahon, made a statement which included much of the detail contained in Mr Lorenzini’s first statement. She confirmed that the four of them (herself, Mr Lorenzini, Mr Bragias and Mr Bragias’s girlfriend) had stayed at a hotel together some months earlier and that Mr Bragias had paid for the hotel and had been asking Mr Lorenzini to repay him since that time; she described an incident when Mr Bragias had threatened her, seeking to recover the money; she confirmed that the meeting was arranged on 3 February 2013 “to try and sort things out”; she provided the same description of the “fat female” who had called out to Mr Lorenzini and Mr Bragias in the carpark and Mr Bragias’s invitation to Mr Lorenzini to go into a room, to which Mr Lorenzini had replied “no way”.

33. [56]

    Concerning the critical event (including the threat with a knife), Ms McMahon’s statement contained the same kind of coherent detail as Mr Lorenzini’s. She said:

34. [57]

    Ms McMahon’s said that “Wazza” demanded the keys a few times before she said to Mr Lorenzini “just give them the keys”. She described the same event where Mr Lorenzini threw the keys at Wazza’s feet, who picked them up and threw them to Mr Bragias.

35. [58]

    As already noted, both Mr Lorenzini and Ms McMahon claimed to have no recollection of those events when they gave evidence before the jury. The trial judge granted leave to the Crown to cross examine each of them and their statements were admitted into evidence under s 60 of the Evidence Act 1995 (NSW). There is no suggestion that the trial judge erred by admitting the statements into evidence.

36. [59]

    As submitted on behalf of the Crown in this Court, the applicant’s submissions in support of the appeal gloss over the significance of that evidence. The statements were admissible as to the truth of their contents and provided a compelling, coherent account that amply supports the guilt of the applicant.

37. [60]

    The applicant’s submissions rested heavily on the fact that Mr Lorenzini’s account to police included the admitted lie (in his second statement) that Mr Thornton was not present on the evening in question (and the fact that he prevailed upon another person to lie in order to support that lie). However, Mr Lorenzini’s third statement gave a plausible explanation for those matters.

38. [61]

    In my assessment, Mr Lorenzini’s statements to police rang true in many respects. The fact that there had been a hotel bill was proved by objective evidence. It was common ground that Mr Bragias had paid the bill. Whatever the merits of Mr Lorenzini’s subsequent conclusion that he no longer owed that money, there was plainly a hot dispute about that between the two men. Ms McMahon’s account of an earlier confrontation with Mr Bragias amply supports the conclusion that Mr Bragias was not a person with whom to mess when it came to matters of debt.

39. [62]

    Both Mr Lorenzini and Ms McMahon included, in their statements, the detail of the invitation into the room in the brothel and Mr Lorenzini’s fear of going into that room. That evidence provided powerful support for a scenario of confrontation and fear rather than a businesslike negotiation of collateral for a debt. The detail of the two statements is, frankly, too realistic to have been fabricated. It is inherently unlikely that Mr Lorenzini would voluntarily hand over his father’s car together with a basket of his own dirty washing, his work boots and his valuable fishing rods. Even Mr Thornton’s statement supposedly exculpating Mr Bragias provided powerful support for the scenario that Mr Bragias and the other male were behaving in a threatening manner and that Mr Lorenzini was scared. Mr Laubhan’s evidence supported that conclusion.

40. [63]

    In the circumstances, the fact that Mr Lorenzini was in fact injured, in my assessment, sealed the case against Mr Bragias. There was compelling, uncontroversial objective evidence that Mr Lorenzini was not only visibly upset when Mr Laubhan picked him up but had in fact been injured that night. Ms McMahon saw the wound bleeding; police photographed it; they determined to suspend the taking of the statement because of the symptoms Mr Lorenzini was exhibiting, arranging for him to be taken to hospital; ambulance officers examined and recorded the injury and he was in fact taken to hospital and admitted for the night. That evidence overwhelmingly supported Mr Lorenzini’s version of events.

Jury’s advantage in seeing and hearing the witnesses

1. [64]

   The applicant submitted that this is a case in which any doubt entertained by this Court is not able to be resolved by reference to the fact that the jury saw the witnesses, since the critical witnesses (Mr Lorenzini and Ms McMahon) gave no evidence to speak of at the trial. For the reasons set out above, I do not entertain a reasonable doubt as to the guilt of the applicant. However, even if I did, I would reject the submission that this is not a case in which the jury enjoyed any advantage over this Court. Mr Lorenzini was cross- examined for days by the Crown pursuant to the leave granted by the trial judge. The manner in which he explained his lack of recollection (in circumstances where he accepted that he had made his various statements to police) was itself an aspect of the evidence for the jury’s assessment. By way of example, his evidence in chief included the following exchange:

2. [65]

   The jury was able to assess Mr Lorenzini’s demeanour when he gave the answer “you realise I’m just agreeing with you to get through this”. That was on the first day of his evidence (21 October 2014). Even then, there was an objection to the Crown cross-examination on the grounds that it was “boring more than anything else” (an objection correctly rejected by the trial judge). The cross examination by the Crown continued for days and, in my view, included many answers of the kind that would have given the jury the opportunity to assess, in an evaluative way, the claim of amnesia and, to a degree, the flavour of the underlying events. Perhaps confusingly for the jury, counsel who appeared for the applicant at the trial (not counsel who appeared on the appeal) cross examined Mr Lorenzini to the effect that his claimed amnesia was “a bold faced lie” and that he in fact had a memory of what happened on the night and that he “wouldn’t have lied to the ambulance officers” (whom he told he had been punched). [16]

3. [66]

   Ultimately, the lies that were established had a coherent quality; the one thing the witnesses had in common was that none of them would give evidence against the accused. If anything, that was an aspect of the evidence that reinforced the Crown case.

Conclusion

1. [67]

   In any event, as already recorded, an assessment of the evidence has not excited any doubt in my mind as to the applicant’s guilt. I am not persuaded that the jury ought to have entertained a doubt in this case.

2. [68]

   For those reasons, I am of the view that leave to appeal should be granted but that the appeal must be dismissed.

3. [69]

   R A HULME J: I am grateful for the thorough analysis of the evidence provided by McCallum J to which I have nothing to usefully add. In my own assessment it was well open to the jury to be satisfied beyond reasonable doubt of Mr Bragias' guilt. I agree that leave to appeal should be granted but the appeal dismissed.

4. [70]

   SCHMIDT J: I also consider that on the evidence discussed by McCallum J, it was well open to the jury to be satisfied beyond reasonable doubt that Mr Bragias was guilty of the offence charged and that accordingly, leave to appeal should be granted, but the appeal dismissed.