Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: JAMAL v R [2012] NSWCCA 198
• Hearing dates: 15 February 2012
• Decision date: 08 June 2012
• Before: McClellan CJ at CL at [1]; Hidden J at [2]; Rothman J at [61]

Decision

Conviction of first count quashed, verdict and judgment of acquittal entered. New trial of second count ordered.

• Catchwords: CRIMINAL LAW - appeal against conviction - maliciously discharging firearm with intent to do GBH, in the alternative, fire a firearm in or near a public place - conviction of first count - verdict unreasonable - view of scene conducted in the absence of accused who wished to be there - fundamental flaw in trial process - admissibility of evidence of flight as consciousness of guilt
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Evidence Act 1995
• Cases Cited: Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111; R v Milat (Hunt CJ at CL, unreported 12 April 1996); Chotiputhsilpa v Waterhouse & Ors [2005] NSWCA 295; Lawrence v The King [1933] AC 699; R v McHardie & Danielson [1983] 2 NSWLR 733; R v Hallocoglu (1992) 29 NSWLR 67; Eastman v R (1997) 158 ALR 107; R v Vernell [1953] VLR 590; Cesan v The Queen [2008] HCA 52, 236 CLR 358; Katsuno v The Queen (1999) 199 CLR 40; Maher v The Queen (1987) 163 CLR 221; Johns (Roger) v The Queen (1979) 141 CLR 409; R v Cook [2004] NSWCCA 52
• Category: Principal judgment
• Parties: Saleh Mahmoud Jamal (appellant); Regina (Crown)
• Representation: Counsel: T Game SC / D Barrow (appellant); R Herps (Crown); Solicitors: B Sandland - Legal Aid Commission (appellant); S Kavanagh - Solicitor for Public Prosecutions (Crown)
• File Number(s): 2007/14844

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2010-05-28 00:00:00
• Before: Morgan DCJ
• File Number(s): 2007/14844012; 2007/11/1; 2007/14844

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HIDDEN J: The appellant, Saleh Mahmoud Jamal, was alleged to have been one of seven men involved in a drive-by shooting at Lakemba Police Station in the early hours of 1 November 1998. A number of shots were fired at the police station from a slowly moving car. There were at least sixteen shots, and they were later established by ballistics evidence to have been discharged from four, possibly five, different firearms. Five police officers were in the police station at the time. They promptly took cover and, fortunately, none of them was shot.

3 Of the seven men, four were alleged to have been in the car from which the shots were fired. The other three, including the appellant, were said to have been parked in cars in the vicinity, ready to assist in the enterprise as required. Two of those men became Crown witnesses, having been granted indemnity from prosecution. It was alleged that the motive for this criminal activity was to discourage police from targeting people of Lebanese descent in the Lakemba area.

4 Proceedings resulting from the incident have had a long history, much of which need not be recounted. In 2004 the appellant was put on trial in the District Court with two alleged co-offenders, Michael Kanaan and Wassim El-Assad. That trial could not be completed because the appellant became ill. The jury was discharged and the appellant was released on bail. He absconded, leaving Australia and travelling to Lebanon. He was extradited back to this country about 2½ years later. This course of events will need to be examined more closely when I deal with one of the grounds of appeal.

5 Kanaan and El-Assad were later tried again and acquitted. In November 2009, the appellant stood trial alone upon an indictment charging:

(1) Maliciously discharging a firearm with intent to do grievous bodily harm (s 33A of the Crimes Act 1900);

(2) In the alternative, fire a firearm in or near a public place (s 93G(1)(b) of the Crimes Act.

He was found guilty of the first count, and later sentenced to a substantial term of imprisonment. He has appealed against his conviction and sought leave to appeal against the sentence. The issue of sentence need not be examined as I am satisfied that the appeal against conviction should be allowed.

6 Four grounds of appeal against conviction were notified. Ground 2, relating to an incident which occurred in the course of the trial, need not be decided. As will be seen, because of other grounds I would quash the conviction on the first count and direct a new trial on the second count only.

Ground 1 - unreasonable verdict

7 It was not the Crown case that the appellant was one of the gunmen. Rather, as I have said, he was alleged to have been in a car parked in the vicinity, some distance from the police station. The case against him was that he was a party to a joint criminal enterprise to discharge loaded firearms with intent to do grievous bodily harm to persons in attendance at the police station. At the close of the Crown case, counsel then appearing for the appellant (who did not appear in this court) applied for a directed verdict of acquittal on the first count. The basis of the application was that there was no evidence that the joint criminal enterprise alleged embraced an intention to do grievous bodily harm to any person. That application was refused.

8 The first ground of appeal is that the trial judge erred in refusing the application and, in any event, the conviction on the first count is unreasonable. In this court Mr Game SC, who appeared with Mr Barrow for the appellant, did not revisit the application for a directed verdict and was content to argue that the verdict is unreasonable. For this purpose it is necessary to review salient aspects of the evidence in the Crown case.

9 The incident occurred at about 1.15am. Lakemba Police Station was a 24 hour station. At the time the exterior lights of the police station were on. So were the interior lights and the interior could be seen from outside through the external doors, which were of plate glass. Police investigating the incident shortly after it occurred found thirteen bullet holes in those doors. They varied in height above ground level, most of them being in an area between about 1.3 metres and 1.6 metres. As I have said, there were several officers in the police station at the time. Plainly enough, firing weapons into the police station at that height carried the risk that someone inside would be shot.

10 The inference was available that those who were firing the weapons, or one or more of them, intended to shoot occupants of the station. However, the appellant was not one of them. An intent to cause grievous bodily harm could be sheeted home to him only if it was part of the joint criminal enterprise to which he was said to be a party. It is necessary to examine the evidence of the planning of the incident, as to which the crucial witnesses were the two men who had been granted indemnity from prosecution. They gave evidence under the pseudonyms of Alan Rossini and Peter Laycock.

11 There were inconsistencies between the accounts of those two witnesses and, of course, their evidence was challenged. However, for the purpose of resolving this ground of appeal I find it unnecessary to consider those inconsistencies or their credibility generally. I am content to summarise their evidence as it emerged favourably for the Crown.

12 A week before the incident there was a meeting at a unit at Surry Hills, at which the appellant, Kanaan, El-Assad and Rossini were present, as well as two other men, Charlie Geagea and Ghassan Said. Whether Laycock was also present is unclear. There was a discussion about what was seen as police harassment of young Lebanese men in Lakemba. Kanaan suggested the drive-by shooting at the police station, an idea which was greeted with enthusiasm by the others present.

13 On the night of the shooting the appellant and the other men, including Laycock, met at a convenience store in Croydon Park. It was there that the plan to carry out the shooting was developed. Put shortly, firearms were obtained from the Surry Hills unit, stockings were bought (apparently for the purpose of disguise, although that also is not entirely clear), and a Holden Commodore was stolen. It was that car that was used for the drive-by shooting. A can of petrol was also bought for the purpose of setting fire to the stolen car after the shooting.

14 The appellant was a party to this planning. The group returned to the Surry Hills unit to obtain the weapons in two cars, one of which was driven by him. He did not take a firearm but he had a police scanner with an earpiece. They returned to Lakemba. There they assembled (as I understand it) at Said's home, where the weapons were loaded. They then drove in convoy, with El-Assad driving the stolen Commodore, to the back of Wiley Park Primary School. The school was roughly half a kilometre from Lakemba Police Station.

15 The appellant's task was to wait behind the school, listening to the police scanner. He suggested that after the shooting the gunmen should drive the stolen car to a point near where he was waiting, set fire to the vehicle and run to his car. He would then drive them from the scene.

16 Rossini and Laycock drove in their car to a street closer to the police station, where they parked. They were to attempt to block off the police in the event of a chase. The appellant remained in his car behind the school. The other four men drove the stolen car to the police station and the shooting took place. I should record that Laycock gave evidence that the appellant was one of the men in the Commodore. However, he had never said that before - not in his statement to police, nor in his evidence at the committal proceedings or in the first trial - and, in any event, it was not the Crown case.

17 The plan was carried out. After the shooting the stolen Commodore was set alight, and all seven men repaired to the Surry Hills unit.

18 In the light of this evidence, it was well open to the jury to conclude that the appellant was a party to a joint criminal enterprise to conduct a drive-by shooting at the police station. However, whether an intent to do grievous bodily harm to any person was a feature of that enterprise depends on the evidence of what was discussed before the incident took place. I have referred to Kanaan's suggestion at the meeting the week before the incident of a drive-by shooting at the police station in response to perceived police harassment. This was the evidence of Rossini. Rossini also gave evidence that, when the group met at the convenience store on the night of the shooting, Kanaan said, "We're going to do the drive-by shooting at Lakemba Police Station. Go to Surry Hills and pick up some artillery." According to Laycock, at the convenience store the appellant said that it had been "hot" in that area, and they wanted to do something "to cause a bit of havoc."

19 That was the extent of the evidence about what was intended to be achieved by the shooting. Obviously, it was possible to shoot at the police station in such a way as to intimidate any occupants without wounding them. Indeed, in cross examination Rossini gave this evidence:

Q. At the first meeting there was just a general discussion, that's the meeting a week before the 31st, and you said there were no real plans made, is that right?

A. Yes.

Q. And the first you heard of the shooting on the evening of the 31st, morning of 1 November 1998 was when you arrived at the 7-Eleven, is that correct?

A. That's correct.

Q. And that was, you understood, an agreement to go and shoot at the police station?

A. Yes, that's right.

Q. And that was an agreement to shoot the police station building, wasn't it?

A. Yes.

Q. It wasn't an agreement to shoot policemen, was it?

A. My understanding, no.

20 It appears to me that the evidence of discussions at both meetings could establish no more than an intention to shoot at the police station for the purpose of intimidation, and falls well short of establishing an intention that any police officer be shot. Nor can such an inference be drawn from the behaviour of the men when they returned to the Surry Hills unit after the shooting. Rossini's evidence was that everyone was excited, laughing, making high fives and saying things like, "The cops are shitting themselves". Kanaan said, "The cops will think twice about targeting Lebs and Bankstown Station is the next". El-Assad said, "Fuck all the coppers, see that copper shit himself and go to the ground". Nothing in these remarks conveys a plan to cause grievous bodily harm to any officer. Indeed, they are consistent with an intimidatory motive. What was conceived was a protest, albeit one which was highly dangerous and utterly reprehensible.

21 I should refer to the evidence of two other witnesses, both of whom also gave evidence under pseudonyms. This evidence was also challenged but, for present purposes, I would accept it at face value. The first of them, giving evidence under the name Dennis Green, gave evidence that, a day or so before the shooting, he went to the Surry Hills unit. There he saw Kaanan, El-Assad, Rossini, Said and the Appellant. They were cleaning guns and the Appellant was holding a revolver. Kaanan whispered to Green, "You know Lakemba Police Station?" Green said that he did and then Kaanan made a gesture as if pointing a gun. Green said that they were "sick cunts". This incident adds nothing to the evidence to which I have already referred.

22 The other witness, giving evidence under the name of Roy Kennedy, was employed in early 1999 in a panel beating business of which the appellant was a part owner. Some months after he had been working there, he had a conversation with the appellant about the shooting. The appellant laughed and said he had done it "to get the coppers off his back, to stop from hassling him". The topic came up in conversation on several further occasions and, at times when Kennedy was late for work, the appellant would say words to the effect, "Just remember what I am capable of. I done Lakemba". This evidence also takes the matter no further.

23 As I have said, the inference that one or more of the men in the stolen car intended to shoot occupants of the police station could be drawn from the manner in which the shooting was carried out. Certainly, their behaviour was reckless. However, the appellant was not privy to what was occurring at the police station. He was the best part of half a kilometre away. Nothing that was said in planning the incident conveys that the plan embraced the infliction of grievous bodily harm on any person. Nor could that inference fairly be drawn from the whole of the circumstances.

24 The Crown case was not based upon extended joint criminal enterprise, that is, the contemplation by the appellant of one of the gunmen firing with intent to cause grievous bodily harm in the course of another crime (such as the offence the subject of the second count, firing a firearm in or near a public place). He knew that the men who were to do the shooting had four loaded firearms, and it would be surprising if he were not aware of the risk that someone might be shot. However, it is quite another matter to find that he participated in an enterprise in which the infliction of grievous bodily harm was intended. In my view, the jury ought to have had a reasonable doubt about that issue. I would quash the conviction on the first count and enter a verdict of acquittal.

25 It would be open to this court to substitute a verdict of guilty of the alternative count, firing a firearm in or near a public place, pursuant to s 7(2) of the Criminal Appeal Act 1912. Mr Game opposed that course, submitting that there should be a new trial of that count. I agree. The appellant's case was that he was not involved in the incident at all, and the evidence that he was emanated mainly from Rossini and Laycock. As I have said, their evidence was challenged and their credibility impugned, and it would be appropriate that proof of that count be assessed at a new trial. Moreover, there was a fundamental defect in the trial which is the subject of ground 3, to which I now turn.

Ground 3 - The View

26 In the course of the hearing of pre-trial issues, the Crown made an application for a view, that is, an inspection under s 53 of the Evidence Act 1995, of the scene of the shooting. This was opposed by defence counsel on the basis, firstly, that it would be of no real benefit to the jury and, secondly, that at such a view the appellant would be shackled and subject to high levels of security. The appellant was in custody at the time and, for reasons which need not concern us, was classified as an "extreme high risk" inmate. Nevertheless, defence counsel told her Honour that, if there was to be a view, the appellant wished to be there and pointed out that he was entitled to be present. The Crown prosecutor said that the appellant would be able to attend and would be held inside a car outside the police station. The police station itself was cramped and, while the jury was inside, the trial judge and the lawyers would remain outside. He confirmed that nothing would be said to the jury during the view.

27 Evidence was subsequently led by a senior police officer that if the appellant attended the view, he would be held within a cage in a secure Corrective Services vehicle. That vehicle would have tinted windows, but the appellant would be visible from outside on a closer viewing. He would be wearing orange overalls and a restraining belt, to which would be attached shackles to his hands and feet. In these circumstances, the trial judge decided that the view should take place in his absence and that there would be no need for him to be there. She observed that he would be represented by his counsel, and that the jury would simply make observations without anything being said by anyone.

28 Trial counsel for the appellant initially responded by saying "I'm not going to cavil with that." However, he put on record that he had "very firm instructions" from the appellant that he wanted to attend. Her Honour repeated her view that there was no necessity for him to be there because he would be represented by counsel. She added that she took into account the question of whether the parties would be present, as required by s 53(3) of the Evidence Act, but affirmed her decision that there was "no necessity for the accused to be present because he will be represented by counsel." Accordingly, during the trial the view took place in the appellant's absence. Ground 3 complains that her Honour fell into error in ordering the view.

29 Relevantly, s 53 of the Evidence Act provides:

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present,

(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,

(e) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.

...

30 From the terms of subs (2)(a), it is apparent that the appellant had a right to be present at the view. A reasonable opportunity for the parties to be present is a essential requirement for a view to be directed. Both the requirements of subs (2) were described as "mandatory" by Pepper J in Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111 at [7]. Her Honour appears to have seen the question whether the appellant would be present at the view simply as one of the matters to be taken into account under subs (3)(a). That provision, however, does not affect the mandatory prerequisite of subs (2)(a).

31 Of course, what subs (2)(a) requires is a reasonable opportunity for the parties to be present. A party may choose not to be. Early in the life of the Evidence Act, Hunt CJ at CL confirmed that in a criminal trial an accused may elect not to attend: R v Milat (Hunt CJ at CL, unreported 12 April 1996). The Chief Judge, sitting as a trial judge, was considering whether a view should be held, having been informed that the accused did not wished to be present at it.

32 His Honour saw the accused's stance as a matter to be taken into account under subs (3)(a). He noted that, unlike the common law position, what happens on a view now constitutes evidence because of the provision in s 54 that a jury may draw any reasonable inference from what they see, hear or otherwise notice during it (at p 2). However, in determining that the view should proceed, one of matters he took into account was that it was intended "to be no more than inspection of a static site". There was not to be any demonstration, and he concluded that there was "no real danger that the absence of the accused is likely to lead to that evidence being misused". He noted that the avoidance of that danger was said by the Law Reform Commission to be the reason for the requirement in subs (3)(a) that consideration be given to whether the parties would be present (at p 3).

33 As I have said, in the present case her Honour was told that the jury would simply inspect the police station without anything being said and, clearly, nothing in the nature of a demonstration was contemplated. Moreover, her Honour was understandably concerned about the prejudice which the appellant might suffer if he was seen by the jury restrained in the manner which his high security status required. The fact remains that, unlike the accused in Milat, he had made it clear that he wished nonetheless to be present.

34 Of course, influential in her Honour's decision was the fact that the appellant's counsel would be at the view. No doubt, where an accused elects not to attend a view, the fact that his or her counsel would be in attendance would be an important factor in exercising the discretion under subs (3). On the other hand, the reference in subs (2)(a) to "the parties" is clearly to the parties themselves, and the right conferred upon them by that provision is not honoured by extending a reasonable opportunity merely to their legal representatives to be present. So much was recognised in Chotiputhsilpa v Waterhouse & Ors [2005] NSWCA 295. That was a motor vehicle personal injury case, in which one of the respondents asked the Court of Appeal to conduct a view of the accident scene. That application was opposed by the appellant (the plaintiff). The court considered the factors in subs (3), and one of the reasons for its refusal of the application was that the appellant would not be present as he had returned to his native Thailand: per Beazley JA, with whom Giles and Ipp JJA agreed at [86] - [89].

35 The entitlement under subs (2)(a) of an accused to be present at a view is, of course, consistent with longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial. In Lawrence v The King [1933] AC 699, Lord Atkin, giving the opinion of the Privy Council, said at 708:

"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused: and for this purpose trial means the whole of the proceedings, including sentence."

(His Lordship went on to acknowledge an exception in cases of misdemeanour, as opposed to felony, but that distinction has passed into history.)

36 Subsequent authority has recognised that an accused's own behaviour may provide an exception to that apparently uncompromising statement of principle. In R v McHardie & Danielson [1983] 2 NSWLR 733, one of the respondents absconded from custody while the trial was in progress. The Court of Criminal Appeal (Begg, Lee and Cantor JJ) recognised the discretion of the trial judge in such a case to continue the trial in the accused's absence. The court said (at 739):

"The accused person has no 'right' to be absent from his trial - subject to cases of necessity (such as illness, where the interests of fairness and justice may require the trial either to be delayed or discontinued). Conversely, the accused person has a right to be present at his trial, subject to his conduct. It seems clearly established by authorities (as it is by commonsense) that if the accused person behaves intentionally to make the continuation of the trial impossible, and if such conduct is found by the trial judge to have that effect, he may be removed from the court...

After a great deal of consideration..., we have reached the conclusion that an accused person cannot be heard to say that he has been denied his right to be present at his trial when he voluntarily abandons that right...by escaping from lawful custody in prison, and thus failing to appear at the continuation of his trial."

37 Their Honours considered authority on the question at 740-745, concluding (at 745) with an affirmation of "the general principle that at an indictable offence trial before a judge and jury the accused's presence is normally a pre-requisite to a fair trial," but adding that the failure of an accused to appear at trial after it has started through escape from lawful custody could correctly be described as "a waiver of his right to be present at his trial", leaving the trial judge with the discretion whether to continue the trial or discharge the jury.

38 I should note that Hunt CJ at CL, presiding in the Court of Criminal Appeal, examined Lawrence and McHardie & Danielson in R v Hallocoglu (1992) 29 NSWLR 67, at 71-2. It is not necessary to refer to what his Honour there said. In that case it was held that a Crown appeal against sentence could be heard in the absence of the respondent, and sentence passed upon him, because he had deliberately left the country to avoid the consequences of a successful appeal. That position has since been put beyond doubt by the insertion of s 14A into the Criminal Appeal Act 1912.

39 In the passage from McHardie & Danielson quoted above, the court recognised the power of the trial judge to remove an accused from the court if he or she intentionally behaves in such a way as to make the continuation of the trial impossible. Such a case was Eastman v R (1997) 158 ALR 107, in which the full Federal Court upheld the decision of the trial judge to remove the accused to a separate room with a video facility because of his persistent disruptive behaviour in the courtroom. The court said (at 138):

"The right of an accused to be present on his or her trial to hear the evidence and confront his or her accuser, while a paramount consideration, is not without qualification and the means by which it is exercised is subject to the control of the trial judge."

Their Honours referred to the passage in McHardie & Danielson which I have quoted, as well as to a passage affirming the same principle in R v Vernell [1953] VLR 590.

40 In Milat (at p 3), Hunt CJ at CL said:

"The voluntary absence of the accused certainly does not render the evidence created by the view inadmissible. Moreover, although what happens on a view now constitutes evidence, it remains sufficiently distinct from the trial itself as not to require... the presence of the accused at that view in order for the trial to be effective."

Again, of course, these observations flowed from the choice of that accused not to attend the view.

41 In this court, the Crown prosecutor focused on the discretion conferred by s 53(3) and submitted that, given the manner in which the view was conducted and the fact that the appellant's counsel was present, there had been no miscarriage of justice. The fact remains, however, that the view took place in the absence of the appellant, contrary to the mandatory requirement of subs (2)(a). It was not suggested that the level of security required by the appellant's high risk status bore on the question whether there could be a "reasonable opportunity" for him to be present, within the meaning of that provision. In my opinion, his absence from the view means that the trial was fundamentally flawed. Indeed, in oral argument the Crown prosecutor acknowledged that if the court found this ground established, the trial could not "be saved."

42 In large part, the appellant's written submissions on this ground were directed to whether the conviction could be sustained by the application of the proviso to s 6(1) of the Criminal Appeal Act. Of course, there could be no question of the application of the proviso because I have found that ground 1 is made out and the conviction of the first count must be set aside. However, guidance is to be found in authority on whether the proviso can be applied when there has been a fundamental defect in the conduct of a trial.

43 In Cesan v The Queen [2008] HCA 52, 236 CLR 358, French CJ said at [87] that there is "support for the proposition that a failure of the judicial process may be so fundamental as to result in a trial which is incurably flawed." The Chief Justice referred to the judgment of Gaudron, Gummow and Callinan JJ in Katsuno v The Queen (1999) 199 CLR 40, in which their Honours referred to Maher v The Queen (1987) 163 CLR 221 and Johns (Roger) v The Queen (1979) 141 CLR 409. In both of those cases convictions were set aside because of significant procedural defects in the trial. In Johns, counsel for the accused had withdrawn a challenge to a prospective juror made by his client without instructions to do so. In Maher, the Crown was allowed to add two counts to an indictment after the accused had pleaded not guilty to the indictment in its original form and the jury had been empanelled.

44 In Katsuno, Gaudron, Gummow and Callinan said at [35]:

"At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the court in Maher, they are concerned with 'failure to observe the requirements of the criminal process in a fundamental respect', of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect." (Footnotes omitted.)

45 In Cesan the Chief Justice, after citing that passage, continued at [88] - [89]:

"[88] If there be a flaw in a fundamental respect such that the appearance of injustice is indelibly stamped on the process and its outcome from the point of view of a reasonable and informed observer, this may be expressed by saying that public confidence would be undermined if the conviction were allowed to stand.

[89] A trial process 'flawed in a fundamental respect' falls into that category. Such deficiencies in process constitute miscarriages of justice. ..."

46 The conduct of a view in breach of the statutory requirement to provide the accused with a reasonable opportunity to be present constitutes a fundamental flaw in the trial process. This ground is made out and, standing alone, would be sufficient to establish that the conviction must be set aside. However, as there is to be a new trial, it is necessary to consider the remaining ground of appeal which is directed to evidence of a consciousness of guilt.

Ground 4 - flight

47 As I have said, the appellant absconded on bail, travelling to Lebanon, after the first trial in 2004 had been aborted because of his illness. At that stage of the trial Mr Rossini was giving evidence. He had been cross-examined by counsel for the two co-accused and was still under cross- examination by counsel for the appellant. The trial was aborted on 11 March 2004, and on the following day was re-listed for hearing on 18 October of that year.

48 On 22 March 2004, the appellant made an urgent application for a passport in a false name. The passport was issued on the following day, and on the same day he boarded a flight for Lebanon. CCTV photographs at the airport revealed that he had changed his appearance by having his hair cut shorter and shaving off his beard.

49 He arrived in Lebanon on 24 March 2004. On 8 May, he was arrested by authorities in that country in relation to other matters. In June 2006 Lebanese authorities authorised his extradition to Australia. On 26 September 2006, he was taken in custody by New South Wales Police and arrived back in Sydney two days later.

50 After taking evidence on the voir dire, her Honour allowed evidence of the appellant's flight as material capable of establishing a consciousness of guilt. The evidence had been objected to, primarily on the basis that its probative value was outweighed by the risk of unfair prejudice to the appellant: s 137 of the Evidence Act. Ground 4 asserts that the evidence should not have been admitted.

51 Evidence on this issue was given on the voir dire. The appellant gave evidence, in which he denied that he had left Australia because of the charges relating to the Lakemba shooting. He revealed that he had also been charged with two other shootings, but he did not advance those charges as a reason for absconding. He said that his primary reason for leaving the country was that he was under pressure from government agencies over suspicions that he was involved in terrorism. He had been released on bail in respect of the present charges and the other shooting charges in 2001, and he described a number of incidents thereafter which conveyed to him that he was under scrutiny by state and federal police and by ASIO for his suspected involvement in the planning of terrorist attacks in Australia. He denied that he was involved in anything of the kind.

52 A journalist, Mr Martin Chulov, also gave evidence on the voir dire. In 2005, he was the Middle-East correspondent for "The Australian" newspaper. He interviewed the appellant while he was in custody in Lebanon. He said that there had been a number of reports in Australian newspapers throughout 2005 linking the appellant to potential terrorist activities, and that he wanted "to explore whether there was any veracity to them." Put shortly, the appellant confirmed that he had been under suspicion for terrorist activity, saying that the Australian government "has been chasing me for three years."

53 However, according to Mr Chulov, he also said that he wanted to leave Australia because "there was a lot of heat over Lakemba" and that he wanted "some breathing space." He also said that he didn't want to go back during the trial, adding that "they wanted to nail me for it." Mr Chulov knew about the drive-by shooting at the police station, and deduced that that was what the appellant was talking about. Importantly, in his evidence in the trial (that is, in the presence of the jury) it was put to him that the appellant said that he "didn't do the Lakemba Police Station shooting." He said that he believed that to be the case. He also said that the appellant told him "that he didn't want to face trial for that matter and that he had left Australia to avoid any heat from security officials."

54 Trial counsel for the appellant argued that the evidence would be unfairly prejudicial because, to rebut the inference that he had absconded because of a consciousness of guilt of the crimes charged, he would have no choice but to reveal that he was a suspected terrorist. However, her Honour assessed the probative value of the evidence as "very high", noting his arrangements to travel to Lebanon soon after the trial was aborted and re-listed, and the circumstances in which he departed from Australia. Her Honour also noted the stage the trial had reached at the time it was aborted, that is, while Mr Rossini, whom she described as "a very important Crown witness", was giving evidence of the accused's involvement in the offence. She also had regard, of course, to the evidence of Mr Chulov tending to connect the appellant's departure with the Lakemba shooting.

55 Her Honour observed that the usual directions would be given to the jury concerning evidence said to demonstrate a consciousness of guilt. She added that if the appellant chose to meet the evidence by reference to the material which was prejudicial to him, that could be dealt with by appropriate directions. In the course of her reasons her Honour had regard to the decision of the Court of Criminal Appeal in R v Cook [2004] NSWCCA 52.

56 One of the issues in Cook was whether evidence of flight had been wrongly admitted. The court determined that it had. It is unnecessary to examine the facts of that case which, on this issue, were very different from the present case. Its relevance is that in that case the explanation which the appellant would have advanced to explain evidence of flight would have revealed criminal conduct other than that with which he was charged. Objection had been taken to the evidence on the basis of s 137 of the Evidence Act.

57 Delivering the leading judgment, Simpson J characterised the probative value of the evidence to the Crown case as "very high indeed": at [36]. However, at [37] her Honour added: "The balancing exercise required by s 137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise." In the event, her Honour concluded that the evidence should have been rejected because the appellant's response to it "not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged": [48].

58 I would not lightly question the judgment of the very experienced trial judge in the present case. However, it does not appear to me that the probative value of the evidence was as high as her Honour assessed it. This was an unusual case. The appellant's flight was very late in the piece. He had been on bail between 2001 and 2004, when he appeared for his trial. Insofar as his departure from Australia was attributable to the present charges, the evidence appears to me to be as consistent with a fear of wrongful conviction as it was with a consciousness of guilt.

59 The appellant did not give evidence at the trial. To deal with the evidence of his flight he would have to have done so, and would have to have revealed that he was suspected of involvement in terrorist activity. No doubt, he would have denied any such involvement and, of course, appropriate directions would have been given about that evidence. Nevertheless, it appears to me that the probative value of the evidence of flight was outweighed by the risk of unfair prejudice to the appellant and it should not have been admitted. Of course, I say so in the light of the evidence that was before her Honour. At a retrial it would be a matter for the trial judge to determine the admissibility of the evidence on the material presented at that trial.

Orders

60 Accordingly, I would quash the conviction and sentence on the first count and enter a verdict and judgment of acquittal on that count. I would order a new trial of the second count.

61 ROTHMAN J: I agree with Hidden J.

62 The argument for unreasonable verdict does not depend upon the credibility of evidence, but the existence of an hypothesis inconsistent with guilt for the offence charged by the Crown. I have read the evidence and agree that such an hypothesis exists.

63 I also agree, for the reasons given by Hidden J, that the appropriate order is a new trial on the second count and not a substituted verdict.

**********

Decision last updated: 04 October 2012