Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Alameddine v R [2012] NSWCCA 63
• Hearing dates: 12 March 2012
• Decision date: 27 April 2012
• Before: McClellan CJ at CL at [1]; Johnson J at [2]; Grove AJ at [3]

Decision

1. Appeal allowed.

2. Convictions and sentences quashed.

3. New trial ordered.

• Catchwords: CRIMINAL LAW AND PROCEDURE - Conviction for armed robbery - evidence - clothing - DNA - time disconnect - incapacity to inculpate - similarly cartridge not in possession of appellant - failure to answer jury question - available admissible evidence - conviction quashed and new trial ordered
• Legislation Cited: Evidence Act; Jury Act
• Cases Cited: Black v The Queen (1993) 179 CLR 44; Chahine v R [2006] NSWCCA 179; Chidiac v The Queen (1991) 71 CLR 432; Halmi v R [2008] NSWCCA 259; M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Mahmood v State of Western Australia (2008) 232 CLR 397; Morris v The Queen (1987) 163 CLR 454; Phillips v The Queen (2005) 225 CLR 303; R v Hickey (2002) 137 A Crim R 62; R v McCormack (1986) 85 A Crim R 445; R v Salama [1999] NSWCCA 105; Ratten v The Queen (1974) 131 CLR 510; SKA v The Queen (2011) 243 CLR 400; Smith v The Queen (2001) 206 CLR 650; Stubley v Western Australia (2011) 85 ALJR 435; The Queen v Chamberlain (No 2) (1984) 153 CLR 521
• Category: Principal judgment
• Parties: Mohamed Alameddine (Appellant); Crown
• Representation: G Bashir (Appellant); P Ingram SC (Crown); Legal Aid Commission (Appellant); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/4562

Decision under appeal

• Date of Decision: 2011-02-11 00:00:00
• Before: Colefax DCJ
• File Number(s): 2009/45652

Judgment

1 McClellan CJ at CL: I agree with Grove AJ.

2 Johnson J: I agree with Grove AJ.

3 Grove AJ: The appellant was convicted on two counts of aggravated armed robbery after a trial at Parramatta District Court before Colefax DCJ and a jury. He was sentenced to imprisonment for a term of 10 years with a non-parole period of seven years. These were directed to commence on 29 September 2013 which date was 12 months prior to the expiry of a non-parole period for other offences dealt with at Sydney District Court on 11 June 2010.

4 The central issue at trial was the identity of the appellant as one of the offenders who robbed two Armaguard security officers at about 12:50 pm on 8 September 2008 as they were leaving a Coles supermarket at Guildford. Over $140,000 in cash was taken as well as, from each officer, a loaded .38 calibre firearm. Count one of the indictment charged robbery of one officer (Morris) of cash and a firearm whilst count two charged robbery of the firearm from the other officer (Czlazko).

5 At about 4:30 pm on Sunday 7 September 2008 the owner of a red Nissan Pulsar, registered number WIG822, left it outside her house at Greenacre. At 8:30 am on 8 September she observed that it was missing and she reported this to police a few minutes later.

6 Prior to 12:50 pm on that day a white Honda Euro belonging to the appellant's brother, Saleh Alameddine, was parked by him across the road from the Coles store at Guildford. He got out of the driver seat and walked around and sat in the passenger seat.

7 An Armaguard vehicle occupied by Mr Morris and Mr Czlazko arrived at about 12:45 pm. The stolen Nissan WIG822 arrived soon afterwards. It had three occupants. Two males with their faces concealed alighted from the front and rear passenger doors while the driver remained in his position. For convenience, those who alighted have been referred to as offender A and offender B respectively. The Crown alleges that the appellant was offender A.

8 Offender A was armed with a pistol and he used it to threaten Mr Morris who retreated into the store, however, offender A followed and, pointing the pistol at Mr Morris, directed him to lie on the ground which he did thus enabling the offender to take a cash bag and the guard's pistol. Offender B threatened Mr Czlazko with a sawn off shotgun and forced him also to lie on the ground enabling him to take the guard's firearm from its holster.

9 Both offenders returned to the places that they had previously occupied in the Nissan which was then driven away at speed.

10 Much of what has just been described was captured on CCTV cameras positioned in the Armaguard vehicle, the Coles store and a pharmacy outside which the white Honda Euro had been parked.

11 At about 1:00 pm a witness saw two cars enter a parking area of a unit complex in Guildford. She saw one car, a white one, then leave very quickly and noticed its number plate was covered by a jacket. When she went to the carpark where rubbish bins were located she noticed the second car which she recognised as not belonging to any resident in the building. Her son-in-law lived in a different unit from her but in the same complex and she went there and told him what she had seen. At about 2 pm he went to have a look and saw Nissan WIG822 and noticed, inter alia, a smashed rear quarter window and damaged ignition. He rang police who arrived within a few minutes. Thereafter the vehicle was secured by police for subsequent examination.

12 On the day following the robbery the registration of the white Honda Euro belonging to the appellant's brother was changed. There was evidence that he was arrested in February 2009 and "charged with offences in connection with this robbery" to which, by the time of the appellant's trial, he had pleaded guilty.

13 On 20 February 2009 police executed search warrants at two different premises. That executed at Auburn related to a family home at which both the appellant and his brother Saleh ordinarily resided. Nothing implicating the appellant in the robbery was discovered there. The other warrant was executed at Chester Hill, the address of the appellant's sister Renee and her husband. At this address police seized a white hooded jacket later determined to bear DNA of the appellant as well as other unidentified persons. Also seized was a single live .38 calibre Winchester cartridge stained with a green primer at its base and an Optus mobile phone account for January 2009 in the name of the appellant. These items were found in the same room of the house although the cartridge was locked in a combination safe. The other item connected to the appellant found at this address was an unopened telephone account in an envelope upon which some writing had been endorsed.

14 In the meantime, among other items sent for examination, a forensic biologist determined that a swab taken from the front door handle on the passenger side of the Nissan vehicle revealed the same DNA profile in the profiler plus system as the DNA profile of the appellant.

15 The circumstantial case relied upon by the Crown was recapitulated by the learned trial judge in his charge to the jury in these terms:

"Now, the Crown relies upon ten circumstances to establish its case, and you heard Mr Crown identify them for you this morning. I will remind you of what they are. First, the robberies of Nathan Morris of firearm and money, and of Alexander Czlazko of a firearm on 8 September. Secondly, the use of a stolen maroon coloured Nissan Pulsar motor vehicle in those robberies. Thirdly, the CCTV footage and stills showing the robberies and the robbers. Fourth, the physical description of the robbers and their clothing as given by witnesses at the scene. Fifth, the DNA evidence in relation to the interior doorhandle on the front passenger side of the stolen motor vehicle. Sixth, the short timeframe in which there was said to be an opportunity for the DNA of the accused to have been placed on the interior doorhandle of the front passenger seat. Seventhly, the DNA evidence in relation to the hooded jacket found at 94 Priam Street on 24 February 2009. Eighth, the question of whether the hooded jacket is the one shown on the CCTV footages from the robberies as being worn by the robber when he gets out of the front passenger door of the car. Ninthly, the bullet or the cartridge found in the safe at 94 Priam Street. And tenth, evidence implicating the accused's brother insofar as it establishes a close connection between him and the accused."

16 The appellant relies upon four grounds of appeal. Ground 1 asserts that the trial judge erred in failing to exclude the evidence of items found at the home of the appellant's sister five and a half months after the offence and DNA evidence related to those items.

17 The items consisted of the two telephone accounts, the cartridge and the hooded jacket. The fact in issue was the identity of the appellant as offender A. The question was whether the evidence, that is the tender of these items, could rationally bear on that fact: Smith v The Queen (2001) 206 CLR 650; Phillips v The Queen (2005) 225 CLR 303; Stubley v Western Australia (2011) 85 ALJR 435.

18 The occupants of the house at Chester Hill were not called but had explained the presence of the appellant's telephone accounts to police on the basis that his sister as a matter of convenience paid his bills at the Post Office which was next door. The contention of the prosecution was that the presence of these items in his sister's house demonstrated his connection with those premises and hence with the two other allegedly incriminating items found there namely, the hooded jacket and the cartridge. The telephone accounts could not, of course, bear upon the identity of the appellant as an offender in the robbery in September 2008.

19 The evidence showed that it was the practice of Armaguard to stain the ammunition issued to its guards in different colours on a three-year cycle. At the end of the year, the ammunition was collected and the new ammunition stained with the colour of the year distributed in exchange. The colour of the year for 2008 was green. The cartridge seized at Chester Hill was identifiable as Armaguard ammunition for 2008, hence it was argued that the circumstance that the firearms were taken in the September robbery pointed to a source of the cartridge, its possession by the robbers and hence by the appellant as one of them.

20 Fundamental to the availability of the finding of the cartridge as a circumstance towards identifying the appellant as such a robber was a nexus between him and that item. The cartridge was extracted from a locked safe which was opened at police direction by the appellant's brother-in-law who claimed that he had found it while on a trip in the country some time after Christmas 2008. A witness from Armaguard acknowledged that, during the year in which the green marked ammunition was on issue, there had been other incidents as well as the robbery at Guildford in which firearms had been taken and it was calculated that there were some 72 green marked cartridges unaccounted for.

21 There was no evidence that the appellant was aware of the combination needed to unlock the safe nor any evidence that he had had access to this safe otherwise. The telephone account was not in the safe.

22 The compatibility of the seized cartridge and the ammunition in the firearms seized from the guards presented a risk of prejudicial speculation concerning the identification of a robber and there was no rational basis upon which the circumstances of its finding could bear upon identifying the appellant as such.

23 The other seized item was the hooded jacket. On the chest area there was printed a large impression of a monkey. The product of the CCTV cameras showed that the jacket worn by offender A displayed no such impression and it was the prosecution contention that it had been worn in reverse. I shall later refer to some other detail of the jacket and what can be seen on the photography, but I turn now to the circumstances in which the jacket was seized.

24 The jacket was found on the floor near baskets of washing. After seizure it was sent for examination and a swab from the inside right wrist cuff disclosed the presence of DNA which had a profile matching that of the appellant. Swabs from the outside right wrist cuff and the back of the neck produced DNA from at least three individuals. The analyst could not identify the appellant as a contributor but neither could he be ruled out as one of them.

25 The search by police was video recorded and the disk was in evidence. At the close of the Crown case a submission was made that there should be a directed acquittal. In his judgment rejecting this submission, the learned trial judge considered the evidence concerning the jacket and said:

"In the course of the trial, exhibit AB was tendered which consists three compact discs recording the search which discovered that garment. That disc recorded the accused's sister saying that the garment was part of the family washing and indeed the accused's brother-in-law said it had come out of the dryer.

The expert witness called by the Crown conceded in cross-examination that if the garment had been washed in the five and a half month period between the robbery and the search then it was more likely than not that the DNA would have been placed on the garment after the washing. There is, therefore, evidence of washing and the concession which the expert made, I think really rules out as a matter of significance in this trial the DNA found on the garment."

26 Although he had made these remarks in that judgment, in the portion of his charge to the jury extracted above, he did not withdraw from consideration as the seventh of the ten circumstances relied upon by the Crown "the DNA evidence in relation to the hooded jacket".

27 Later in relation to this item he gave this explicit direction:

"Then you might wish to consider question item 7, and that is the significance of the DNA, if that be the jacket, found at Priam Street. Now, this issue is also a link in the chain issue. Miss Neville gave evidence of the strong correlation between the DNA profile of the accused with what was found on that jacket. It was, you have been reminded, found five and a half months after the robbery. She told you it could have been placed there, that is the DNA could have been placed there any time between September and February. But she said it would have to have been placed there later in time if at any stage it had been washed in that five and a half months. Now, before you could use that fact, that is that it was the accused who wore the jacket on 8 September, you would have to be satisfied beyond reasonable doubt that there was no other reasonable explanation for the presence of the DNA on the jacket."

28 Given his Honour's finding as to the ruling out of the significance of the DNA on the jacket when determining the directed verdict application, it is difficult to conclude other than that, if it be assumed that the finding of the jacket retained some probative value, that value must inevitably have been outweighed by the danger of unfair prejudice to the appellant and the evidence should have been withdrawn from the jury in accordance with the mandate in s 137 of the Evidence Act. It was five and a half months since the robbery and the seized jacket was with washing and, as commented by the appellant's brother-in-law to police, was awaiting ironing; it was not only the appellant's DNA on the jacket and, as will later be observed, there were apparent incompatibilities between the markings on this jacket and what could be seen on the jacket worn by offender A as captured on the CCTV images.

29 I would uphold ground 1.

30 Ground 2 contends that the trial miscarried by virtue of the failure of the trial judge to direct the jury adequately as to the proper use of the DNA evidence in the trial.

31 In the light of my conclusion that the evidence concerning the DNA on the jacket should have been withdrawn from the jury, it will suffice to deal briefly with this ground.

32 At the time the jacket was seized there were found in the pockets some pieces of material and black gloves. During the search, the appellant's brother-in-law had said these were his. Whether or not this be accepted, it was common ground that these were not of relevance to the robbery and, in particular, to the identity of offender A who was depicted on the CCTV product as wearing white or, at least very light coloured, gloves.

33 If, contrary to the view that I have expressed in relation to ground 1, the DNA evidence in relation to the jacket remained for consideration by the jury then a similar result should have been achieved by direction that the inference being invited by the prosecutor, namely that the DNA had been placed on it in September 2008 and had remained there undisturbed, unwashed and undegraded until February 2009, could not safely be drawn by the jury: cf Mahmood v State of Western Australia (2008) 232 CLR 397.

34 It is also complained that no direction concerning the items found in the pockets of the jacket had been given. There had been no suggestion that these items were available to assist in the identification of the appellant and in the conduct of the trial this must have been obvious to the jury which offers a reasonable explanation as to why no application for direction was made. I would not regard this omission as demonstrative of error.

35 However in regard to the DNA found on the jacket, for the reasons above expressed, I would uphold ground 2.

36 Ground 3 proposes that the trial miscarried by virtue of the trial judge failing to answer a question from the jury prior to taking majority verdicts from the jury in circumstances where the unanswered question asked by the jury related to the material issues in the trial, namely: "How much weight can be given in reference to joint criminal enterprise in regard to using the DNA evidence from the interior door handle of the car to implicate the accused for robbery?".

37 It is accepted that his Honour did not answer this inquiry but it provides an understanding of how this did not occur to chronicle some events during the jury deliberations.

38 The jury retired to consider its verdict at 3:22 pm on Thursday 21 October 2010. They ceased at about 4 pm and resumed at 9:40 am on 22 October. Some time before 11 am the jury sent a note indicating their difficulty in reaching agreement. After discussion with counsel, his Honour gave the jury a brief exhortation broadly adopting some of the suggestions in Black v The Queen (1993) 179 CLR 44. At 1 pm the jury sent a further note repeating that they were having difficulty in obtaining agreement and suggesting that they would be unable so to do.

39 Discussion then ensued between his Honour and counsel concerning the taking of a majority verdict. Whilst this was taking place, the note which is set out in the ground of appeal was received.

40 Discussion then turned as to what the jury was seeking by this note. As the Crown case was that the appellant was offender A whose DNA was on the door handle, the reference to joint criminal enterprise does suggest that they were concerned about the second count charging the robbery of Mr Czlazko but it was wise to seek clarification which his Honour did when he had the jury brought back at about 2:10 pm. Thereafter the jury retired with a request to try and redraft the question.

41 No redrafted note was received but another note was sent stating that the jury "had finished deliberating". At 3:13 pm his Honour brought the jury back and pointed to the ambiguity in the message last received and asked them to confirm whether they had reached a unanimous verdict. This received a negative response.

42 Thereafter, evidence was taken from a juror attesting to the unlikelihood of agreement and, after findings in accordance with s 55C of the Jury Act, at 3:21 pm his Honour gave a direction incorporating more fully the suggestions in Black and directing them of their capacity to deliver a verdict by majority of 11 jurors.

43 At 3:39 pm the jury returned majority verdicts of guilty on both counts.

44 As above stated, the jury note described in the ground was not answered nor, however, did the jury return a redraft of this inquiry as requested. That request had emerged upon his Honour's expressed inability to understand what he was being asked. Neither counsel offered any interpretation of the note and they agreed to a proposal that the jury be asked to clarify what it was that they seeking, hence his Honour's request for a redraft.

45 There is ample authority that a verdict should not be taken until a request for direction has been fulfilled: R v McCormack (1986) 85 A Crim R 445. Where a question manifests confusion, it is important that this be removed and the jury be directed along the correct path. Even if, absent direction, a jury has resolved an issue to their own satisfaction, it has been held erroneous to omit so to do: R v Salama [1999] NSWCCA 105.

46 It is perhaps understandable how the obtaining of the requested redraft of the question was overlooked, given the focus of the series of communications from the jury concerning its inability to agree but the omission amounted to error. Even where the directions in the initial charge are adequate, it has been held that they no longer remain so in the light of the existence of an unanswered question: R v Hickey (2002) 137 A Crim R 62.

47 Ground 3 should be upheld.

48 Ground 4 contends that verdicts are unreasonable having regard to the evidence in the trial.

49 The approach to be taken by this Court when such a ground is raised was expressed in the majority judgment in M v The Queen (1994) 181 CLR 487 at 493 in these words:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

50 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act so that the reference to "unsafe and unsatisfactory" is to be taken as equivalent to the statutory formula that the impugned verdict is "unreasonable, or cannot be supported, having regard to the evidence": MFA v The Queen (2002) 213 CLR 606.

51 It becomes the duty of this Court to make its independent assessment of the evidence in order to answer the question posed in M. This has been stressed in a series of judgments Ratten v The Queen (1974) 131 CLR 510; The Queen v Chamberlain (No 2) (1984) 153 CLR 521; Morris v The Queen (1987) 163 CLR 454 and relatively recently in SKA v The Queen (2011) 243 CLR 400.

52 In SKA, the majority (French CJ, Gummow and Kiefel JJ) quoted with approval the further extract from the judgment in M, viz:

".....the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".

53 Their Honours went on to observe (at [20]) that it would be erroneous for this court to approach such a task by concerning itself whether, as a question of law, there was evidence to support a verdict, rather than making its own independent assessment of the evidence. Thus, the court should approach the question, whether on the evidence the court is satisfied that the offender is guilty of the offence, as the central question and not as an ancillary question to whether there was a sufficiency of evidence to sustain the conviction.

54 The joint judgment added (at [21]):

"To determine satisfactorily the applicant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged."

55 In discussing this principle and its application, Mason CJ in Chidiac v The Queen (1991) 71 CLR 432 at 433 made these observations:

"It is for the court to consider whether, on the relevant evidence, it was open to the jury to be convinced beyond reasonable doubt as to the guilt of the accused" and "in making that assessment, the Court must necessarily take into account the nature and quality of the evidence..."

56 In the light of my opinion that ground 1 should be sustained, it follows that the evidence concerning the jacket and the cartridge seized at Chester Hill was neither relevant nor of appropriate quality to contribute to the identification of the appellant as offender A and therefore to the finding of guilt. It should be excluded from assessment as to whether the jury, acting reasonably, should have entertained a reasonable doubt; Chidiac at 443.

57 Understandably, at the hearing of the appeal, counsel for the appellant drew attention to inconsistencies between the seized jacket and what could be observed about the jacket worn by offender A as seen in the product of the CCTV cameras including still images extracted from the video recordings. For example, when reversed, the jacket displays a black line across the shoulders which, it was contended, was not visible on any of the images. That appears to be the case, however another stripe across the hood is visible in some images and not in others. It was submitted that comparisons would contradict the proposition that the seized jacket was identifiable as that worn by offender A. In addition submissions were also directed to the absence of nexus between the appellant and the cartridge and its asserted irrelevancy to the identification of the appellant.

58 It becomes unnecessary to recapitulate these arguments or to determine debate about them because, in the vernacular, no better outcome could be achieved by the appellant than the exclusion of this evidence which will be the consequence if ground 1 is sustained.

59 It remains, however, for this Court to make an assessment based upon the admissible evidence.

60 In an exchange between counsel and the bench, it was conceded that the appellant could have been convicted on the evidence of finding of his DNA on the passenger door handle of the stolen car used to convey the offenders to and from the robbery alone. In making assessment in this Court it is not, of course, sufficient merely to find that there was evidence sufficient to enable the jury to convict: Chamberlain (No 2) at 531; Morris at 473.

61 The identity of the appellant's DNA on the door handle of the car does not stand in isolation. In the absence of any other explanation, it would rationally follow that the DNA was deposited between 4:30 pm on Sunday 7 September or when the owner left her car and 1 pm on the following day when it was abandoned just minutes after the robbery. There is a clear available inference that the Nissan car was stolen for the express purpose of being used in the robbery and the limited time-frame during which DNA from a person otherwise unconnected with the vehicle could be deposited and the contemporaneity of such deposit with the possession of it by the robbers and its use in the offence add circumstances to the identification of the appellant's DNA reasonably capable of pointing to his inculpation. These circumstances are to be considered in deciding whether or not the contention of the appellant has been made good: cf Halmi v R [2008] NSWCCA 259; Chahine v R [2006] NSWCCA 179.

62 It is true that the forensic biologist who identified the DNA acknowledged that she could not exclude the DNA of the appellant being on the door handle by "secondary transfer" but this concession was entirely hypothetical and there was not the slightest evidence of any mechanism whereby such a transfer might have been effected. In any event, given the amount of DNA recovered, the witness testified that the results were more consistent with direct transfer. I recognise that in his charge, his Honour said to the jury that one way secondary transfer could have occurred was if the appellant's DNA was on a pair of gloves which he had previously touched but were worn by somebody else who was actually in the car. As I have said, this derived from submission which was pure speculation but to the extent that it was erroneous to advance such unsustainable theory, it could have only operated to advantage of the appellant that that direction was given.

63 As already noted, the critical fact to be established was the identity of the appellant as offender A and in the whole of the circumstances surrounding the theft and use of the Nissan car and the existence of the DNA of the appellant on the door handle of that door by which offender A left and entered the car, I would assess the evidence as factually supportive of the guilt of the appellant and I do not conclude that it would be dangerous in all the circumstances to allow the verdict of guilty to stand. That conclusion is, of course, related to this ground of appeal and not the grounds which I have indicated that I would uphold. It follows also that I would answer the question as formulated in M, in the affirmative.

64 I would reject ground 4. In her written submissions counsel of the appellant accepted that if any or all of grounds 1, 2 and 3 were upheld but ground 4 was rejected, the appropriate order would be to direct a new trial. That concession was correct and I would so order.

65 I propose the following orders:

1. Appeal allowed.

2. Convictions and sentences quashed.

3. New trial ordered.

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Decision last updated: 20 May 2013