Skaf v The Queen; Hajeid v The Queen; Ghanem v The Queen [2005] HCATrans 744 (9 September 2005)

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Skaf v The Queen; Hajeid v The Queen; Ghanem v The Queen [2005] HCATrans 744 (9 September 2005)

Last Updated: 4 October 2005

[2005] HCATrans 744

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2004

B e t w e e n -

BILAL SKAF

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S294 of 2004

B e t w e e n -

BELAL HAJEID

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S354 of 2005

B e t w e e n -

MOHAMED GHANEM

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S406 of 2004

B e t w e e n -

BILAL SKAF

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH ACJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2005, AT 10.39 AM

Copyright in the High Court of Australia

__________________

MR A.P. COOK: May it please the Court, I appear for the applicant, Skaf, in matter S170 of 2004. (instructed by Legal Aid Commission of New South Wales)

MR S.J. ODGERS, SC: May it please the Court I appear for Hajeid with my learned friend, MR N. MIKHAIEL. (instructed by Ryan and Bosscher Lawyers)

MR T.A. GAME, SC: If the Court pleases, I appear for Ghanem with my learned friend, MR M. BUSCOMBE. (instructed by Murphy’s Lawyers Inc)

MR L.M.B. LAMPRATI, SC: May it please the Court, I appear for the respondent in each of the matters. (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH ACJ: I think, since these matters raise rather similar issues, it might be prudent to call No 5 as well.

MR J.S. STRATTON, SC: May it please the Court, I appear with my learned friend, MR R.W. BURGESS, for the applicant in matter S406 of 2004. (instructed by Legal Aid Commission of New South Wales)

MR L.M.B. LAMPRATI, SC: May it please the Court, I appear for the respondent in this matter. (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH ACJ: Unless counsel have any objection, I think we should hear the arguments for the applicants in all of those cases before we hear from the Crown although it may be necessary, at some stage, to hear you in respect of the first lot before you move on to the second. What about this video that wants to be shown? Who is going to lead off in S170 of 2004?

MR STRATTON: Your Honour, the video is in my appeal on behalf of Mr Skaf. It is.....Do your Honours wish me to start with that? It is a very short video and we say it is a critical piece of evidence in the case. It is the identification video of the complainant.

McHUGH ACJ: Yes, I know. In the courts below there were orders that the evidence be given in closed court. I understand the parties, including counsel for the Crown, have no objection to this being shown in open court here.

MR LAMPRATI: I was going to draw that to your Honours’ attention, that it was a closed court, but if it is the monitor that I see behind Mr Stratton, it is really only facing your Honours anyway. I draw it to your Honours’ attention, that is all.

McHUGH ACJ: Yes, but it would only be in very, very exceptional circumstances, if at all, that this Court would ever close - - -

MR LAMPRATI: I have drawn it to the Court’s attention.

MR STRATTON: We do not seek such an order, your Honour.

McHUGH ACJ: It is probably only going to be in this one over here so, Mr Stratton, perhaps it might help if you play that.

MR STRATTON: We will have it played. Your Honours, I understand, have a transcript of this video.

McHUGH ACJ: Yes.

MR STRATTON: It is the second act of identification, that is the identification of photograph No 15, which is the so-called identification of the applicant.

VIDEO SHOWN TO COURT

McHUGH ACJ: I think seeing we have just seen the video, perhaps it might be better if you start, Mr Stratton, so we will start in matter No S406 of 204.

MR STRATTON: Your Honours, this was a case where, although there was other evidence implicating the applicant, in particular there was a reliance on consciousness of guilt, but the way in which the Crown put its case to the jury and the way in which his Honour summed up to the jury, the jury had to be satisfied of the identification evidence of the complainant and to be satisfied on it beyond reasonable doubt before the jury could convict him.

I have taken your Honours to some passages in the written directions which make that clear, but there is also a passage in the summing-up where that was made clear - that is at page 104 of the application book starting from line 16. His Honour has directed the jury in relation to the complainant:

So her evidence is of the utmost importance. There is in fact, no other evidence directly linking them –

that is, of course, the accused –

to the crime. That does not mean that the case is therefore a weak or fragile one. It means her evidence is central, crucial evidence. If you decide her evidence is not credible, then it is difficult to see how any of the accused can be convicted. As I pointed out before, her credibility has been attacked in all sorts of ways. As well as being satisfied beyond reasonable doubt she has correctly identified the accused in each instance, you have to be satisfied beyond reasonable doubt that she has correctly linked that accused to the particular crime, that he committed or she alleges he committed. If you are satisfied she has done that, then you should convict, if you are not, you should acquit.

Your Honours, in my submission, much more significant than the stance taken by the complainant in evidence, that is at a time when she knew that she had correctly selected the men who the police suspected, was the act of identification and your Honours have seen the act of identification, or perhaps I should say so-called identification. Your Honours have the transcript of it and it was actually started, I now realise, halfway through under the heading, “Identification of Bilal Skaf” - this is at page 2 of the transcript of the identification video:

T: Number fifteen sort of looks familiar.

PORTA: Mm. And where does he look familiar from?

T: He looks familiar from the red car. I think he’s the offender I identified as Sam two.

PORTA: And that being the offender you identified as Sam two that you told us about in your statement.

T: Yeah, I think it was Sam two .... Inaudible.

PORTA: Okay. How sure are you about that?

T: I’m not a hundred percent sure....

PORTA: Mm.

T: Because just because but he looks a hell of a lot like the person I identified as Sam two which makes him....

PORTA: So you’re.....

T: Yeah looks a lot like him. He’s got the same eyebrow and (inaudible).

In a case such as this, in my submission, this Court has said in Pitkin that saying that someone looks similar to, looks like, is not positive identification. We say that the one thing that the complainant did not do in this case was to positively identify the applicant.

McHUGH ACJ: What you say may be correct about the video, but do you not have to take into account the evidence that appeared at pages 420 and 421 of the transcript where she said, “I believe I picked the right person”, and she explained that it was not a good photo and she said that she was sure if it had been a physical identification she could have done a lot better.

MR STRATTON: Your Honour, in my submission, the very reason that this Court has, in many decisions, stressed the importance of the identification process is submitted. At the time that the complainant was shown the photographs, of course, it was not indicated to her which were the photos of the people who police suspected but by the time she appeared in trial she, of course, knew that two of the men who she selected were brothers. She knew that the police indeed joined her suspicions that the applicant was the person who had done it, as it were, so it was very unsurprising and, in fact, very frequently happens in these sorts of cases, that the witness by the time of trial is prepared to express a much greater degree of certainty.

McHUGH ACJ: I know, but what I was putting to you was that the evidence that she gave distinguished the case from Pitkin. It was not a Pitkin-type case, or at least a jury might think not.

MR STRATTON: Nevertheless, even at trial, your Honour, the witness was not prepared, in my submission to your Honours, to positively identify. Certainly, she became much more certain but my submission is that the critical stage is the stage when she is looking at photographs not knowing that they are already suspects. In my submission, the level of uncertainty that she displays in that video that your Honours have just seen indicates that the jury’s verdicts in these matters were unreasonable.

Your Honours, in relation to ground 4, that is the directions in relation to the unreasonable doubt, could I just say this at the outset in relation to the Crown submissions. The Crown has submitted to your Honours in written submissions that these misdirections which, we submit, occurred in the directions on reasonable doubt, occurred only in the preliminary remarks. In fact, the misdirections occurred in the part of the summing-up where his Honour was directing the jury on the onus and standard of proof and, indeed, it was the only time that his Honour went for that topic.

Your Honours will find the directions at pages 22 to 23 of the application book and because there has been this suggestion that it was only in the context of preliminary remarks, I want to take your Honours to what his Honour in fact said. At page 22 of the application book, at line 25, his Honour said, referring to the written directions:

In fact I will give you a document of what the elements of the particular offences are. What you have to be satisfied about beyond reasonable doubt is the actual ingredients of each offence. You do not have to be satisfied beyond reasonable doubt that every word Ms T said was true for example. What you have to be satisfied is, having heard all the evidence, you have to be satisfied beyond a reasonable doubt, that this particular charge is made out. You may have a doubt about some parts of this evidence or that evidence and yet still be satisfied beyond reasonable doubt. On the other hand, you may not be able to come to a conclusion that you are satisfied beyond a reasonable doubt. If you have a doubt –

and this of course is a critical passage at the bottom of page 22 of the application book –

and it is based on reason then you should give the benefit of that doubt to the accused person in whose case you are considering.

At the top of page 23 of the application book:

“Beyond reasonable doubt” is an expression meaning what it says. It is the highest form of proof known to law. It does not mean “beyond reasonable doubt to the point of certainty”. It means “beyond reasonable doubt” it means what it says.

And then again a critical passage, in my submissions, your Honours:

“Beyond reasonable doubt”, any doubt that is in fact reasonable.

Far from being the introductory remarks, or part of them, although as is usual, of course, these remarks came towards the beginning of the summing-up, that was the only portion in which his Honour dealt with the question of the onus and standard of proof. I will be corrected by the Crown if I am wrong but the only other reference I can find in the application book is at page 93, at line 30 where his Honour said:

Proof beyond reasonable doubt, I told you that before. The Crown has to prove each of the elements of the charge against each accused beyond reasonable doubt.

HEYDON J: That is in reference to a written set of directions, is it, page 10 of that document?

MR STRATTON: Yes.

HEYDON J: What did that document say about the standard?

MR STRATTON: I realise your Honours do not have those directions in the application book. Would it assist your Honours to have a copy of those written directions?

McHUGH ACJ: Yes.

MR STRATTON: At page 10, as your Honour Justice Heydon points out, there is a reference to page 10 of the written directions which simply says about point 6:

Proof beyond reasonable doubt

The Crown must prove each of the elements of each charge in the case against each of the accused beyond reasonable doubt. The expression “beyond reasonable doubt” means what it says. It is the highest level of proof in our system of law.

No complaint is made about that part of the written directions but, in our submission, the damage was already done in the oral directions, that is the summing-up, in which his Honour clearly put the wrong test to the jury.

That has been clear ever since the decision of this Court in Green v The Queen and, indeed, the Court of Criminal Appeal, in Li’s Case, had to consider an almost identical direction given, as it happens, by the very same judge, Judge Finnane of the District Court. In that case the Court of Criminal Appeal found that it was a misdirection and ordered a retrial. The Crown points out the fact that in both Green and Li there were other errors made by the relevant trial judges in those cases but we say that those cases cannot be distinguished on the facts. This Court in Green and in the Court of Criminal Appeal in Li, both very clearly said that what his Honour told the jury was a misdirection.

Your Honours, in relation to ground 5, this was a case where, it is submitted, the jury needed very clear directions on consciousness of guilt. The consciousness of guilt relied upon by the Crown was the fact that the applicant had admittedly given a false alibi on behalf of his brother and he gave the false alibi at a time when his brother had been charged but he had not. In the course of the trial the applicant pleaded guilty to two counts of attempting to pervert the course of justice so it was very clear that the only matter at issue, at it were, in terms of the Edwards direction was whether or not he acted out of consciousness of his own guilt or a desire to protect his brother who had already been charged.

The directions that his Honour gave, in my submission to your Honours, was of no assistance to the jury on that issue. The relevant directions are at pages 87 to 88 of the application book. I wanted to take your Honours to those directions because, in my submission, his Honour gave such strong comments about virtually every element of the four parts of the Edwards direction on the consciousness appeal that he really very much only left the issue of whether or not the acts of the applicant came from his consciousness of guilt. That was very much the only issue but he gave them no assistance on that point. This is what his Honour said at page 87 of the application book from line 29:

So if you’re satisfied that he has done that, that these matters are lies, I’ve expressed a view – there’s no two ways about it – I’ve expressed a view about what they are. Like all views about facts in this case, they are my views, but you’re entitled to agree or disagree with them. If you’re satisfied that he’s done those things, and it would seem to me that you probably would be, and those lies are about important matters in the trial – and I’ve put in the paragraph –

again referring to the written directions –

you might think providing false alibis to police about himself and his brother would be important matters – and they show, the lies show he has a knowledge of the offence or offences or some aspect of it, and he told the lies because he knew the truth about the matter about which he lied would implicate him in the matter, or because he had a realisation of the truth and a fear of the truth, you can take them into account for the purpose of concluding that he was acting with a consciousness of guilt of the offences charged against him.

So if you think that he was doing these things because he was aware he was involved in committing these offences and he was doing it, that’s his motivation for being involved in these false alibis, that that shows there is present in his mind a consciousness of guilt, then you can take that into account as evidence against him of the offences for which he’s been charged.

If, however, you think there’s a reasonable possibility that he was telling lies for some reason not connected with a consciousness of guilt, then you can’t use it for that purpose.

In my submission, this Court in Edwards said that the jury needs to be directed that the accused might be acting for reasons other than consciousness of guilt.

McHUGH ACJ: The judge did that, did he not, at some stage?

MR STRATTON: Your Honour, in my submission, he did not relate the directions to the facts of the case, the issue in the case. The only issue about lies was whether the applicant was telling lies to protect himself or to protect his brother but his Honour never directed the jury in those terms.

Your Honours, the Crown has said that by the applicant’s plea to the offences he admitted that he was acting out of consciousness of guilt of his own guilt. That is not conceded. The charges to which he pleaded appear at page 5 of the application book and he has simply pleaded to two counts of attempting to pervert the course of justice by, in effect, making a false statement on one hand, and enlisting a false alibi on the other hand, but there is no admission, there was never an admission and it was very much contested at trial that he was acting out of consciousness of his own guilt rather than a desire to protect his brother.

McHUGH ACJ: But counsel who appeared for your client at the trial did not ask for any redirection, did he?

MR STRATTON: The consciousness appeal direction was opposed, in fact, only came into the Crown case - - -

McHUGH ACJ: After the plea of guilty.

MR STRATTON: Yes, which itself occurred only halfway through the trial.

HEYDON J: But it is true, is it not, that rule 4 was applied against your client in relation to consciousness of guilt because no direction had been requested at the trial? The same is true of standard of proof.

MR STRATTON: That is also true but that was also, of course, the case in Li. Those are my submissions. Thank you, your Honour.

McHUGH ACJ: Thank you. Having heard the argument for the applicant in S406, we will now hear the arguments in S170. Who is going to lead off in that matter?

MR COOK: I will go first, may it please the Court.

McHUGH ACJ: Yes, Mr Cook.

MR COOK: There is one ground of appeal on behalf of the applicant, Skaf, in this matter and that is the Court of Criminal Appeal erred in holding that the cross-examination of the appellant on his criminal record was properly allowed and that the evidence of the appellant’s criminal history was properly admitted in the trial of the appellant.

The issue arose in cross-examination of the applicant by the counsel for the then co-accused, Ghanem, and it was in the context of an interview that the applicant had engaged in with the police on 6 December 2000. In the main, he declined to answer any questions. When the police asked him whether he wanted to further participate he said, “No, I haven’t done nothing mate, I don’t know what you’re talking about”. The applicant gave evidence in the trial and in his evidence he stated that he had engaged in sexual activity with both complainants but it had been with consent.

He also said that the co-accused, Ghanem, was present at the park. This was apparently contrary to the interests of Ghanem in the trial, so he was vigorously cross-examined by Ghanem’s counsel. She focused on what he had said to the police on 6 December 2000 and he was confronted with an assertion – this appears at application book 140 commencing at line 30, “prepared to tell lies”, and then the last question on the page:

Q. On that night you said you didn’t know anything about the events at the part on that night?

There is then a long answer which we see at 141.

McHUGH ACJ: It is at line 44, is it not, on 141?

MR COOK: Yes. The question is then in response to a slightly differently formulated version of the same question which we see commencing at line 25:

you lied and said you didn’t know anything about the girls in the part on the night in question?

An argument ensues and we then have the words which trigger the application by the Crown:

They’re the first charges I’ve ever had. Other than a driving offence.

Now, the prosecution argued that this had been evidence which engaged the operation of section 110(2) of the Evidence Act, that is that it was evidence adduced to prove that Mr Skaf was generally a person of good character. The trial judge acceded to the application but did not expressly deal with the question of whether the evidence had indeed transgressed, as it were, or triggered the operation of section 110(2). We find his Honour’s reasoning at pages 10 to 12 of the application book and his Honour does not refer to section 110 at all. His Honour commences his examination of the relevant legal principles at line 6 on page 11, which is discretion, which is not the first question, in my submission. His Honour then goes on, at line 33, to analyse the evidence:

In my opinion this evidence is important. It is obviously very important to the accused himself because he has put forward that he has had no previous untoward brushes –

His Honour then goes on to say what, in my submission, represents the gravamen of his Honour’s reasoning and that is at line 42:

It bears upon his credibility, his honesty, and of course that bears upon very much what view the jury might take of him.

When his Honour came to sum up on the issue, and we find this first referred to at pages 18 and 19 of the application book, in the context of a general discussion about assessing the evidence of all the witnesses and at line 43:

You can take the view that Mr Skaf is telling lies about some particular matter.

Then over at line 6 on page 19:

Secondly, he asserted in the witness box he had never had any previous charges -

and so forth. Then again at 64 and 65 in the application book, his Honour tells the jury what use they can make of the evidence that Mr Skaf had given denying any previous charges aside from driving offences - - -

GUMMOW J: We are not in the Court of Criminal Appeal. What did the Court of Criminal Appeal say about this?

MR COOK: The Court of Criminal Appeal said, and we can find this in the application book at page 193 in the first paragraph on the page, the Court of Criminal Appeal registers the argument - - -

McHUGH ACJ: It is paragraph 225, is it not?

MR COOK: Yes, so in effect, in my submission, the Court of Criminal Appeal was endorsing the approach of his Honour the trial judge that because Mr Skaf was invoking his alleged good record in disproof of a proposition that he was a liar, he had thereby triggered the operation of section 110(2). That, in my submission, is a wrong test. Section 110(2) requires, before it is engaged adversely to an accused, that evidence is adduced to prove that a person is of good character. Good character has a well-known meaning and it is this, in my submission – I have referred to Attwood in my submissions – that it be raised for the purpose of disproof of guilt to demonstrate that you are the type of person who would not commit the type of offence with which you are charged.

HEYDON J: But is not character evidence commonly admitted both to prove innocence or guilt or to challenge or bolster credibility?

MR COOK: It cannot be admitted solely to bolster credibility because if so, that would - - -

McHUGH ACJ: Why do you say that? I thought in Melbourne’s Case we said it went to both aspects of it.

MR COOK: It goes to both aspects in terms of what are the appropriate directions for a jury. Melbourne’s Case does not determine admissibility. It determines how a jury will be told to use the evidence once it is admitted, but if it is used solely to bolster credibility it would offend against
section 102 of the Evidence Act, which prevents evidence relating purely to credibility. That is why, with respect, credit and character are dealt with in separate parts - - -

HEYDON J: That 102 is subject to 103 and this answer was given in cross-examination. The question could have led to a favourable answer to either side, the answer offered was offered as being favourable to the accused.

MR COOK: In my submission, that is not the proper way to approach section 103. Section 103, in my submission, is about attacking a witness with matters of substance relating to his or her credibility. It is not about a witness promoting his own credibility under cross-examination. Character and credit are separate matters in the Evidence Act.

HEYDON J: Since the evidence was not – it was given in cross-examination but it was not really adduced in cross-examination because it was volunteered.

MR COOK: In my submission, that is correct and I also add to that what I said before that section 103 is not really about this sort of situation. Plainly, credit and character can interweave and we see that in section 104(4) of the Evidence Act in the part relating to credibility. In paragraph (a) the protection that an accused has against being cross-examined on a matter solely to credit is lost if the accused, in effect, raises his good character. That, in my submission, is demonstrative of this division in the Act between credit and character. If you assert that you are not the type of person who would commit this offence you can be attacked both on your character, that is section 110(2), and also on matters going purely to credit, that is section 104(4)(a).

There is no provision, in my submission, for an accused person to raise his credit solely. What happened in this trial, in my submission, is that the accused was invoking his credibility. The trial judge viewed it as such, directed the jury consistently with that view. The Court of Criminal Appeal endorsed that view and, with respect, the whole process offended against section 110. May it please the Court.

McHUGH ACJ: Yes, thank you. Yes, Mr Odgers.

MR ODGERS: Thank you, your Honours. Just in very brief terms the factual matrix of this appeal application was that - - -

McHUGH ACJ: Before you do, what are the special leave questions in your matter? With respect, they are very unsatisfactorily stated. How should a trial judge direct a jury, et cetera? It needs to be said again that the questions presented should be in a form that shows a summary of the issues said to arise with enough legal content and, where applicable, critical factual matters to give the reader an understanding of the issue, questions such as how should a trial judge direct a jury as to, what is the principle that applies or what circumstances permit a judge to are not questions that formulate a special leave question.

This Court cannot constitutionally give advisory opinions and the Court cannot determine questions that are framed in the abstract and which are advisory in nature and, with great respect, in this matter, Mr Odgers, that is what we are being asked: how should a trial judge direct a jury; may a trial judge direct a jury, et cetera, et cetera.

MR ODGERS: I hear what your Honour says. I will do my best to rephrase it.

McHUGH ACJ: I appreciate that, but for the future the Bar should be more specific about the issues.

MR ODGERS: I understand, your Honour. Do you want me to try to do it now?

GUMMOW J: It is not the first time that has been said.

MR ODGERS: No, I appreciate that too. Do you want me to attempt to redraft them now?

GUMMOW J: No, just get on with it.

MR ODGERS: Your Honours, hopefully by the 20 minutes you will have a clearer idea of what we are arguing. Just in respect to the factual matrix, your Honours, the two complainants went to the park in a van with four people and then there was a car with another set of four people.

McHUGH ACJ: Yes, I think we are familiar - the red car, yes.

MR ODGERS: In respect of the first special leave point, which was so badly drafted, in respect of the offences against Ms P the prosecution case relied entirely on evidence of identification from her that the applicant was Sammy, Sammy was one of the offenders.

McHUGH ACJ: I think the Court of Criminal Appeal said, at page 137, there was a very favourable direction from your point of view.

MR ODGERS: General directions were given about identification but on the critical issue of “looks like”, which is what the special leave point is about, absolutely nothing was said, with respect. She identified the applicant’s photo as Sammy four months after the incident. When she came to trial she testified and she said, “The photograph looks like Sammy, he’s got the same features as Sammy did but I can’t say, like, people look different when you see them in person. It looks like him as far as I can tell”. So that is her evidence at trial. One interpretation of that is that she is no longer confident that the applicant is Sammy, once she has had a subsequent opportunity to see him.

Now, what did the trial judge say about that, at page 70, your Honours, at the bottom of the page:

In relation to Mr Hajeid, again, the major case or the most important element of the case against him is identification. Again you will be able to look at the video cassette and see how certainly it was that Miss P identified him.

So they are being asked to look at the video four months after the incident to see how certain she was then, based on how she appeared at that time:

Look carefully at both these pieces of evidence –

that is the two videos –

See how they approach the task –

that is the two complainants -

In her evidence in this court she said -

and then his Honour refers to the matters I have just brought to your Honours’ attention and then he says, at line 20:

She was asked by the Crown in evidence “why did you say that” -

that is, why did you identify him four months after the incident on the photo and she said -

“because I think it is him” -

which presumably is saying, “Because I thought it was him”. That is it, your Honours. That is the totality of what the judge says about the in-court “looks like” - not one word about caution, not one word about taking that into account when you are looking at the out-of-court identification, not one word about the significance of “looks like”, not one word about how, if that is all she really could say, then you would have to acquit, not one word. What did the Court of Criminal Appeal say about this, your Honours?

HEYDON J: There are a few words between lines 25 and 45.

MR ODGERS: Your Honours, that was a more general direction about identification, about the circumstances relating to the dark, as I apprehend it, the fact that it was in the dark, at the park, and various other matters but about the aspect of “looks like”, your Honour, I do not accept that there was really anything else said, but no doubt the Crown will correct me if I am wrong. Your Honours, what did the Court of Criminal Appeal say – 171 - - -

McHUGH ACJ: I do not think any objections were taken, were they, Mr Odgers to this - - -

MR ODGERS: Your Honour, there is an affidavit. It is at - - -

McHUGH ACJ: Yes, from the young - it was only her fifth trial - - -

MR ODGERS: Her fifth criminal trial. She told the jury the judge would give directions and she says she misunderstood what he was saying. That is her explanation but, your Honour, section 116 is mandatory and evidence of resemblance is identification evidence for the purposes of 116. The Court of Criminal Appeal at 171, line 30:

The summing up made clear to the jury that they had to be satisfied that a positive identification had been made and that they had to consider general and particular issues requiring care in their evaluation.

Our response, your Honour, is it did not and it invited the jury to look how certain she was at the time of the video ID, the photo ID, but what their Honours say there, with respect, we say is just wrong.

Can I move to the second ground – I have not attempted to reformulate the special leave point, your Honours but in essence it comes down to this - - -

McHUGH ACJ: It is a miscarriage of justice case, is it not?

MR ODGERS: It is not just that, your Honour. Pitkin says “looks like”, if that is the only evidence, unsafe. This was a case where you had a photo ID where she appeared to be certain but then it becomes “looks like” at trial. How was that to be dealt with? What should a judge say to a jury about that? In this case the judge says nothing. We say really guidance needs to be provided to assist judges in circumstances like that and the appropriate directions.

GUMMOW J: Guidance.

MR ODGERS: No, I use the term “guidance”. Sorry, your Honours. We say that there was a serious miscarriage of justice from a complete failure to give necessary directions. The second ground, the inadequacies in the directions that I have just taken your Honours to were made much, much worse by the directions at 179. Can I take your Honours to those? This overlaps with what Mr Game is going to take your Honours to. At 179, this is during addresses, his Honour is directing the jury in response to something that had happened during the address, line 30:

And if the persons who wish to assert that was so, Mr Ghanem and Mr Hajeid, wish to establish as a fact that he was there –

that is that another person, TS was there –

and that he had, they could have given evidence or they could have called him. No evidence was called, therefore you can conclude there is no such evidence that [TS] was at the park. You thereafter should disregard those possibilities, there being no basis in evidence for those possibilities . . .

The evidence as to Sammy –

Remember, your Honours, the question in this case was whether the applicant was Sammy –

is the evidence of the trial. The only evidence given as to Sammy was given by Miss P..... and it was given in the trial. There is no other evidence to suggest anybody else was Sammy.

I will have something to say later on about Mr Skaf and his credibility. That is all I wish to say this at this point. Remove altogether from your minds the notion that you have to consider possibilities based on no evidence.

Your Honours, it is clearly wrong, the mere fact that there is no direct evidence of a hypothesis consistent - - -

McHUGH ACJ: But, Mr Odgers, it is really being said in the context of what counsel had raised in her cross-examination. That is the context of it, and it is conceded by Mr Game, in his submissions I think, that there was no evidence that TS was there.

MR ODGERS: Of course not, your Honour. We accept that a judge was properly entitled to direct the jury there was no evidence that TS was there. Our complaint is the judge goes on to say emphatically in directions which he does not withdraw that they should put out of their mind possibilities for which there is no evidence. He includes the fact there is no evidence - - -

McHUGH ACJ: No, but your argument is that that means that you cannot take in a hypothesis consistent with innocence. That is your point, is it not?

MR ODGERS: That it was TS or anybody else other than the applicant, your Honour, yes, that is our point. That is what it says, with respect. Perhaps the jury would have understood it differently but that is what it says and we rely on that. The Court of Criminal Appeal says that would have been understood as just an emphatic direction that there is no evidence. Well, perhaps, but with respect, your Honour, it does not say that and it is plainly wrong and it was made worse because, at 182, at line 10, the trial judge says:

If a positive assertion is made that a particular event has occurred by the person who could give evidence about it and that person refuses or declines to give any evidence about it then the jury can conclude the event did not occur.

So that is implicitly, we say, inviting the jury to reason that because the applicant did not testify that he was not Sammy then indeed there is no evidence of anybody other than the applicant, that they can infer that it must have been him and we say that that exacerbated the problem. He is saying on the one hand, there has not been any evidence called by the defence that it is someone else than Sammy. He has not given evidence. You can use that to infer something positively and we say that - - -

McHUGH ACJ: But there was considerable evidence that he was Sammy, was there not?

MR ODGERS: No, your Honour, with respect. The totality of the evidence was the evidence of Ms P which I have just taken you to earlier, the identification at the video that that is Sammy. That is it.

McHUGH ACJ: Am I confusing the facts of this case with the other matter in 406, but was there not evidence of photo ID and a licence?

MR ODGERS: No, not in this case.

McHUGH ACJ: Not in this case, it was in the other one.

MR ODGERS: The totality of the evidence that he was Sammy was the identification of Ms P that I took you to as the basis of the first round of appeal. The judge then says in respect of ground 2, “You can take into account that there’s no other evidence as to who Sammy was and you can take into account the fact that the accused didn’t go in the witness box to give evidence”, and then there are some general directions in the summing-up which, we say, do not in any way neutralise the sting, the very, very serious sting, that was contained in those directions that I have taken you to.

Your Honours, the third ground related to the offences against Ms F. Ms F did not identify the applicant. She did not identify him as Sammy nor as one of her assailants. The only way the prosecution could prove that he was an assailant was based on her evidence that four men from the red car ran over and assaulted her combined with evidence that he had been in the red car. That was the only way they could prove it. The evidence she gave about him coming from the red car is at 211. Can I take your Honours to that. At line 40, she is having a conversation with Skaf. He is already at the park, as you will recall, the van has already come:

She then saw another car pull up behind the van. She heard male voices shouting and yelling in an excited manner. At that stage Adam –

which is allegedly Skaf –

told her to hurry up and give him the head job before they came. She said that she submitted –

She then gave the head job –

The next thing that happened was that “the males from the red car came closer to us and I stopped -

Now, the Court of Criminal Appeal said that it was not unreasonable to convict on that evidence that she was saying it was the four men from the car ran over. But, your Honours, in her cross-examination, she agreed that the car arrived at the park while she was engaged in oral sex with Mr Skaf so she is engaging in oral sex with Mr Skaf when the car is arriving. She heard noises of people running and yelling although she could not hear what was said. At no stage did she explicitly say that she watched four men exit the car and run over. After she had finished engaging in oral sex with Mr Skaf, she walked out of the pergola area and saw four men running towards her, but that is the evidence, your Honour.

McHUGH ACJ: But, Mr Odgers, these are arguments well addressed to a court of criminal appeal, but we do not sit as a court of criminal appeal. This case concerns the application of general principles of statutory text to the particular circumstances of the case. Where is the special leave point?

MR ODGERS: Firstly, there is miscarriage. That is the most obvious one, the interests of justice in the particular circumstances of this case. Can I just say in a broader context, your Honour, this is a kind of case, a gang rape, young Muslim men, where there is a real danger of guilt by association and where, in joint trials, there is a real danger that juries will look at it, to a large extent, globally. Of course, they are told not to do that but it really makes it essential to look at the evidence against the particular accused.

In respect of this accused, I have taken you through really the totality of the evidence, both in respect of the evidence against Ms P and the allegations against Ms F, so there is a real concern here that the evidence against this applicant was really very marginal and that, we say, justifies a grant of special leave.

McHUGH ACJ: I read all these books last weekend and because of the sort of issues you have just raised I reread, last night, the whole three books from front page to back page, but still at the end of the day it seemed to me that there was a case concerned with the application of general principles and statutory text as to the facts of the case. You have to persuade us that there is really a special leave point in there.

MR ODGERS: The special leave point, in effect, the first ground we say was that it is how Pitkin translates into directions to a jury, that that is the special leave point there. The special leave point in respect of the second ground is the legitimacy or appropriateness of directions converting absence of evidence to disregarding possibilities. That is the critical point of principle which, we say, the judge jumped the line and basically told the jury to disregard the possibilities because there is no evidence of them and the accused did not testify, so it ties in with the significance of his failure to testify.

The special leave point in the third ground is, we say, there is a real concern about the miscarriage of justice. We also say that in truth the Court of Criminal Appeal did not refer at all to the cross-examination. There is a huge difference between examination-in-chief which says, “I saw the car arrive and I saw people running over and then I engaged in oral sex”, and cross-examination that says, “In fact, the car arrived while I was giving oral sex”. In terms of an ability to see who came out of the car, what happened over at the car, 100 metres away, in the dark, no lighting in the park, no lighting around the cars, Skaf himself testified that when the four men arrived they mingled with the rest of his friends, they were all together.

She is not even explicitly saying it was the four men in the car who ran over. She is really, on one interpretation, saying four men ran over from the car. But the whole point is, your Honour, there are already three men at the park there as well as the four who arrive so it is an obvious possibility that there has been a mixture of men from the car and men already there and on that this applicant is serving a sentence of 23 years.

We say that there are issues of principle raised, that there are very great concerns that there has been a serious miscarriage of justice, and that the way that the trial judge dealt with these matters was wholly inadequate. Can I say, on this point, I have not put it this way, but the judge gave no directions at all at any stage that the jury would have to be satisfied beyond reasonable doubt that the four men who ran over had come from the car, never. He never directed them that they had to be - - -

McHUGH ACJ: Is that necessary?

MR ODGERS: Yes, your Honour.

McHUGH ACJ: Why should it be necessary to give a special direction?

MR ODGERS: Your Honour, in this case the Crown case stood or fell on that because it depended on the four men in the car all running over. It depended on that, so unless you were satisfied - - -

McHUGH ACJ: You say it comes within the exception in Shepherd’s Case?

MR ODGERS: Absolutely, no doubt whatsoever, absolutely indispensable to prove guilt beyond reasonable doubt.

HEYDON J: Was there a complaint made about that direction?

MR ODGERS: No, there was not.

McHUGH ACJ: That is part of the problem, is it not?

MR ODGERS: Yes, your Honour, but we have a relatively inexperienced counsel. We have a situation where I have not run it as the discrete ground of an absence of directions. I called it in aid to support a concern that there has been a miscarriage of justice in terms of the verdict because the jury
were never directed about it. I have not put it as a discrete ground. It is simply an additional consideration to whether or not the verdict is safe or not and that is how I put it.

Your Honours, this is a case where you have inadequate directions on identification, they are undercut by other directions about absence of evidence, you have no directions about indispensable element, you have concerns about the quality of the evidence. In my submission, your Honours, there are numerous reasons why special leave should be granted.

McHUGH ACJ: Thank you, Mr Odgers. Yes, Mr Game.

MR GAME: If the Court pleases. We were well out of time filing our documents. May I proceed to present the argument?

McHUGH ACJ: Yes, Mr Game.

MR GAME: I wanted to take the Court first to the proposed ground 3 which concerns the directions on the failure to give evidence and the failure to call evidence. Could I take your Honours to page 144 of the joint application book. You see at the bottom of page 144 that counsel who was appearing for my client, Mr Ghanem, was putting at line 45 to Mr Skaf that Mr Ghanem was not in the park and she puts that at line 45. Then at page 145 she puts the proposition that in court Mr Skaf ran his finger across his throat to Mr Chami who had come in. Mr Chami, on the Crown case was the driver of the red car and he was giving evidence that TS and MS were there. Then over on page 146 - - -

McHUGH ACJ: Was there some suggestion that Chami was going to give evidence in this case?

MR GAME: Chami was called on a Basha inquiry to ascertain whether or not he was sufficiently reliable to give evidence and at the conclusion of that Basha inquiry, as I recall it or understand it, nobody required him to give evidence. I think probably that it would be fair to say the view was that he was insufficiently reliable for anybody to make anything of his evidence, your Honour.

McHUGH ACJ: Yes.

MR GAME: In line 20 on 146 it says:

You are prepared to nominate Mr Ghanem as being at the scene rather than somebody else . . .

Haven’t you said to Mr Ghanem during the conduct of this trial: “If I go down, I’ll take you down with me –

Then we see Mr Ghanem did not have his hair in a plait, he suggested that he had it up and then it is suggested he is wrongly naming Mr Ghanem. Counsel addressed in a way which was, we accept, the subject of proper criticism and you see what she said at the bottom of page 151 to the top of 152, but critically she was entitled to put that there was a reasonable doubt about Mr Skaf’s assertions that Mr Ghanem was present.

Then we come to the directions that Mr Odgers has already taken you to. These directions arose after Skaf’s counsel complained about Ghanem’s counsel’s address. I am going to take you to a different part of them, but if you look at the bottom of page 180, this is about the hand across the throat:

There is no evidence in this trial that he did any such thing.

The parties in court are called in aid, counsel and other people in the courtroom are called in aid as potential witnesses. Then we see at line 15:

there is no evidence whatsoever that any such thing occurred. Had there been evidence of such a thing occurring it no doubt would have been called.

That is to say, it did not happen. It is to be borne in mind that a Jones v Dunkel direction is necessarily neutral, that is to say one says to the jury if one gives a direction at all, “It would not have assisted”. That is not neutral, that is that it did not happen and then it gets stronger because then it goes on to say that:

Mr Ghanem could have given evidence of that threat. If that was important to his case. It must have been important to his case . . . Mr Skaf denied making any such threat. Mr Ghanem did not give evidence . . . You can therefore conclude that there is no evidence of any such threat and no such threat was made –

so he is wrong, but more than that:

Counsel operate on instructions from their clients.

So we have directions twice going beyond a Jones v Dunkel direction, then they are coupled with a necessary proposition that Mr Ghanem is a liar because he has had his counsel put something that did not occur, and that is the only construction that can be put on that, and this is the consequence of Mr Ghanem not giving evidence. We see at the bottom of the page:

you must draw the conclusion that Mr Skaf made no threats and those persons were not present.

What Skaf said was that somebody else was present. He did not actually say TS and MS. He said that Chami asserted that, but for the purposes of the jury that would have meant that, ie, Mr Ghanem was present given the way in which this was left. At the next page, when counsel asks the judge to withdraw the direction it actually gets stronger because it becomes:

If a positive assertion is made that a particular event has occurred by the person who could give evidence about it and that person refuses or declines to give any evidence about it then the jury can conclude the event did not occur.

Refuse or decline, that is, in my submission, pejorative language of recalcitrance but positive assertion had been made to Mr Skaf, which was that Mr Ghanem was not present in the park. Now, the jury are being told to conclude that that did not occur, that is to say that he was present in the park and that is the only conclusion the jury could draw from this direction and it is said in strong and emphatic terms.

What the court said was that this was specific and I have sought to explain to the Court why it is not specific only, but the court also said that the directions which are set out at page 183, paragraph 188, remedied the situation. Our submission is that those directions did not do that. You will see in the fourth line, his Honour said:

I have already commented on one aspect of the exercise of that right.

So he is not scotching what he had said previously. He does not countermand the direction. He is actually, we would submit, affirming it. Then he goes on to say:

You [cannot] hold it against them that they have given no evidence. All you can say is that by giving no evidence they put nothing forward to you to assist you in the case. They have relied on what emerges from the Crown case -

Now, again, my respectful submission is that that is pejorative because they did not assist you but do not hold it against them. The other thing about this is that it says nothing about putting propositions to witnesses and it says nothing about calling of other witnesses so the whole of the other directions so far as it concerned putting propositions to witnesses and what you draw from that and the calling of other witnesses, that still stands completely. So that is what we say about that and we say that it - - -

McHUGH ACJ: What do you say about the Court of Criminal Appeal’s answer to those submissions in paragraph 195?

MR GAME: Your Honour, really what I said before was an endeavour to persuade you that the context was not specific and was not confined because of the general way in which it was put and that nothing was said to countermand it and bearing in mind - - -

GUMMOW J: How does this become a special leave question?

MR GAME: It becomes a special leave question because it raises the question of what directions are appropriate to give when an assertion is made but rejected by a witness and then no evidence is called on the subject. That is a matter of general importance just the same as an accused not giving evidence is a matter of general importance.

McHUGH ACJ: They are factual arguments, are they not? Every case depends on its own facts. You cannot lay down a general principle about it.

MR GAME: But these directions are, your Honours, well outside any authorised directions to give in such circumstances. I wanted to go then to the question about Mr Skaf as a witness because no directions were given about Mr Skaf as a witness. The Crown in this Court says that this was not really an identification case at all and I would remind your Honours that in Webb and Hay, Justice Toohey in particular, and your Honour was the presiding judge, gave a joint judgment agreeing with that that something has to be said about the subject and in this case you will not find anything said that is directed to this issue about how the jury would approach Mr Skaf as, in effect, a witness for the Crown.

I wanted to highlight that by referring you to just a couple of passages and it is certainly not exhaustive. This is in the context of consideration of the Crown case. What is in effect being done at the bottom of 65 to the top of 66 is that his evidence that he was there and that his evidence that Mr Ghanem and Mr Hajeid were there, is put in effect in a special category. “You can reject everything else”, he says, but not that. That is in the context of the case against Mr Skaf but when we come to the case against - - -

HEYDON J: Is this a section 165 submission?

MR GAME: It is really a common law submission, your Honour. It is at 165 or common law. I say, “or common law” because no direction was sought but we say that he was a clearly unreliable witness who had to draw a direction either under 165 or at common law - - -

McHUGH ACJ: There is a difficulty, is there not, when somebody is a joint accused? Is there not a decision, is it Bartle or Palmer, in the Court of Criminal Appeal which says that you should not give directions about the character of these co-accused or the unreliability of co-accused?

MR GAME: I do not know that case. There is a case that says you should not give directions about the accused but I do not know about a case about a co-accused, but Skaf’s evidence became quite important, highly important, in the case against Mr Ghanem. I will just take you to one other passage about this and you can see that at page 76. As I say, there are others. You see at page 76 what is, in effect, being put is that you can act on Mr Skaf’s evidence even if you are not satisfied about the identification evidence of Ms F and then you can combine that with the acts and you can convict the accused.

Now, in these circumstances, we would say that a fortiori the observations of Justice Toohey in Webb and Hay would apply, that is to say something has to be said about the different way in which we are using Mr Skaf’s evidence at this point. If we come to the Court of Criminal Appeal at 172 to 174 they give, in effect, two reasons. One is at 163 which is Skaf’s credibility was under serious attack, but as I said and I sought to show you from that passage before, that really this evidence about him being present and about Ghanem and Hajeid being present was put in a special category.

The other aspect of disposing of it was that it was said that there was no evidence to dispose of the theory which had been advanced but in a sense that is the whole point because the theory had been scotched by the directions the judge had previously given which, we say, were incorrect but the jury needed to know that in considering Skaf’s evidence he was of a kind of witness which the court’s experience had shown was likely to be unreliable and unreliable about nominating Ghanem and Hajeid. The more, as it were, it said that his evidence falls in line with the prosecution case, which is the submission put against us, the more need for caution. So we say that is a second special leave point that it warrants a grant of leave relating to the appropriate warnings to give in circumstances such as this.

Our other main point is a point that really relates to the convictions concerning Ms P and this is a miscarriage of justice point in substance. It starts at 202 and following, but if I can explain it this way. Counts 11 and 12 are accessorial, present, aiding and abetting offences alleged against Mr Ghanem concerning acts by Mr Hajeid after the red car had arrived. Count 13, there was directed verdict on the basis that Mr Ghanem had left.

The point I am coming to is this, that once you take the case against Mr Ghanem from the jury on count 13, there is no evidence and nobody has ever pointed to any evidence that would be capable of putting Mr Ghanem present, aiding and abetting Mr Hajeid. To make this out, and it is a very cursory way of doing it, at the bottom of 204, line 50, when the judge said, “This unknown person with a plait”, that is the first time in this case that anybody had said anything about another person.

Now, this direction actually served the Crown in a sense because it meant that the difficulty of having somebody present committing an offence at the same time as they have gone, had gone, but it also meant that the difficulty they had of the different descriptions of a plait or a ponytail had gone too. In contrary to the Crown submissions this point was conceded in both the trial and on appeal.

We come to paragraph 262, and again this is very summary, but what you are seeing in that sentence is what the judge next said to the jury about this other person who is said to have committed count 13, “the man with the plaited hair” and he says he is “not on trial here”. Again, in a very summary way, if you go over to page 208, line 35:

So whoever this male with the plaited hair is, we do not know -

That is the third direction on it. That is in the body of the summing-up so now we have two people: one, Mr Ghanem with a ponytail, and some unidentified man with plaits in his hair who committed count 13. Mr Ghanem was entitled to the benefit of the acquittal on count 13 which means that there was no evidence that he.....count 13.

HEYDON J: I thought count 13 was only against Skaf.

MR GAME: It was originally count 18 but it became count 13 and it is against Mr Ghanem that he slapped Ms P in order to enable Mr Skaf to have sexual intercourse with her so in respect of Mr Ghanem it was taken away from the jury that he had committed that offence. What this means is that there was no evidence at all that Mr Ghanem was present, aiding and abetting the assaults on Ms P. What the Court of Criminal Appeal relied upon is at paragraph 267. Every single one of those items are things that put Mr Ghanem in the park. None of them get Mr Ghanem aiding and abetting Mr Hajeid.

Your Honours, I hope you can take it from me that on an examination of the summing-up you will not find anything that addresses the issue in terms of Mr Ghanem’s liability in respect of counts 11 and 12 specific to actually putting what the evidence is and how the case is put.
They are referred to but there is nothing of any assistance there. So that is that ground and we accept that that is a miscarriage of justice point and we have a related miscarriage of justice point which was disposed at paragraphs 272 and 273.

Our related miscarriage of justice point is this, your Honours, that once you have this second person introduced, as it were, out of the blue by the trial judge, the jury had to have proper directions about this in respect of identification and none were given.

McHUGH ACJ: Nor sought.

MR GAME: That is true. Of the points that I have argued the one in respect of which specific complaint was made was the first one and I accept that that is the case.

McHUGH ACJ: Thank you, Mr Game.

MR GAME: In respect of miscarriage of justice, it is a case where needless to say the applicant has a very long sentence and if there are grounds for asserting a miscarriage we would submit this is an appropriate case under section 35A for a grant of leave.

McHUGH ACJ: Yes, thank you. The Court need not hear you, Mr Lamprati, in any of these matters.

The issues raised in these applications concern the application of general principles and statutory texts to the particular circumstances of the cases. They raise no question of general principle that warrants this Court granting special leave to appeal.

It perhaps needs to be said once again that in criminal matters this Court does not sit as a substitute Court of Criminal Appeal. It grants special leave to appeal in criminal cases only where a point of general principle is involved or there are good grounds for thinking that what occurred at the trial may have led to a miscarriage of justice. In these applications, we think there is no point of general principle and we do not think that there are satisfactory grounds for concluding that there has been a miscarriage of justice.

The difficulty of establishing an arguable case of a miscarriage of justice is increased where the miscarriage is alleged to arise from non-directions and those directions were not asked for at the trial. That is the case here in a considerable number of respects. The applications in S170 of 2004 require an extension of time and that should be granted, but for the reasons just given the application should be dismissed.

The Court will now adjourn to reconstitute.

AT 11.57 AM THE MATTERS WERE CONCLUDED