Kanaan & v R [2006] NSWCCA 109 (13 April 2006)

CITATION: Kanaan & Ors v Regina [2006] NSWCCA 109

FILE NUMBER(S):

60265/03

60219/03

60367/03

HEARING DATE(S): 10–11 February 2005

DECISION DATE: 13/04/2006

PARTIES:

Appellant (60265/03) – Michael Kanaan

Appellant (60219/03) – Rabeeh Mawas

Appellant (60367/03) – Wassim El-Assaad

Respondent – Regina (NSW) (60265/03, 60219/03, 60367/03)

JUDGMENT OF: Hunt AJA Buddin J Hoeben J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70045/00, 70208/00, 70209/00

LOWER COURT JUDICIAL OFFICER: Wood CJ at CL

COUNSEL:

Appellant (60265/03) – SJ Odgers SC, HK Dhanji

Appellant (60219/03) – TA Game SC

Appellant (60367/03) – MC Ramage QC

Respondent (60265/03, 60219/03, 60367/03) – PE Barrett, JA Girdham

SOLICITORS:

Appellant (60265/03) – Michael Croke & Co

Appellant (60219/03) – Jeffreys & Associates

Appellant (60367/03) – Nicopoulos & Associates

Respondent (60265/03, 60219/03, 60367/03) – Director of Public Prosecutions

CATCHWORDS:

Assassination of head of criminal organisation by members of that organisation — joint criminal enterprise — Crown case relied principally on evidence of former member of organisation who might reasonably be supposed to have been criminally concerned in that enterprise — witness given undertaking by Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. - Bases on which “accomplice” evidence may be unreliable — extent to which judge required to warn jury about matters not within their general experience and understanding — except in relation to identification evidence, judge required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury. - Direction that dangerous to convict on uncorroborated evidence of “accomplice” unnecessary but not prohibited — whether independent support for evidence of “accomplice” may be found in evidence of another “accomplice”. - Evidence of negative identification by Crown witness — no application by Crown prosecutor to cross-examine witness — Crown prosecutor asks jury to disbelieve her evidence — whether leave to cross-examine would have been given — whether accused lost opportunity to call evidence supporting negative identification made — nature of directions concerning negative identification.

LEGISLATION CITED:

Crimes (Administration of Sentences) Regulation 2001

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Criminal Appeal Act 1912

Evidence Act 1995

Criminal Appeal Rules

DECISION:

1. The appeal against conviction by each of the appellants is dismissed.

2. The application by the appellant Kanaan to defer an application for leave to appeal against sentence is refused.

3. The application by the appellant Mawas for an extension of time within which to seek leave to appeal against sentence is granted, leave to appeal is granted but the appeal against sentence is dismissed.

4. The application by the appellant El-Assaad for leave to appeal against sentence is granted and (by majority) the appeal against his sentence is allowed. The sentence imposed in the Common Law Division is quashed, and in lieu thereof the appellant El-Assaad is sentenced to a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. He is eligible for release on parole on 16 March 2016.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF CRIMINAL APPEAL

60265, 60219 & 60367/03

HUNT AJA

BUDDIN J

HOEBEN J

Thursday 13 April 2006

KANAAN & ORS v REGINA

Headnote

The appellants were members of a criminal organisation of which one Danny Karam was the head. The Crown alleged that the appellants were members of a joint criminal enterprise to kill Karam. He was murdered by three men standing outside his motor vehicle and shooting at him. The Crown alleged that the appellants Kanaan and Mawas were two of those shooters, and that the appellant El-Assaad had sent a telephone alert to the three shooters that Karam was on his way down to the motor vehicle.

The Crown case relied principally on the evidence of a witness given the pseudonym Rossini, who had been a member of the same organisation and who might reasonably be supposed to have been criminally concerned in the joint criminal enterprise. Prosecutions against Rossini on drug supply charges were withdrawn when he gave an undertaking to give evidence in this and other cases. He was in turn given an undertaking by the Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. The witness himself believed that he had an immunity from serious charges of conspiracy to supply commercial quantities of cocaine, of murder and “everything that had happened”.

The Crown case also depended to a lesser extent on the evidence of two brothers given the pseudonym Laycock, who were related to Rossini, and who might reasonably be supposed to have been accessories after the fact of murder.

Dangerous to convict on uncorroborated evidence of “accomplice”

The appellants complained on appeal, but not at the trial, that the judge erred in not giving a warning to the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice.

Held:

(1) It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated.

(2) The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is:

(a) to give a warning that the evidence of that witness may be unreliable,

(b) to inform the jury of matters that may cause it to be unreliable, and

(c) to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The matters to which reference was generally made in the directions which accompanied the common law accomplice warning should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable.

(4) The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so. [217]

Conway v The Queen (2002) 209 CLR 203; Regina v Ngo [2003] NSWCCA 82; Regina v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117 considered.

Discussion as to whether an accessory after the fact is an accomplice.

[201]–[203]

Davies v DPP [1954] AC 378; Regina v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 referred to.

Independent support for evidence of “accomplice”

The judge directed the jury that they could find “support” for the evidence of Rossini in the evidence of the Laycock brothers. The appellants complained on the appeal, but not at the trial, that this offended the rule that one accomplice cannot corroborate another.

Held: The words “independent support” used by the judge have a far wider meaning than “corroboration”, and therefore “support” need not be of such a nature that it confirms in some material particular not only that the crime has been committed but also that the accused committed it. Provided that the jury is adequately warned that the evidence of a witness who may have fabricated a story jointly with the “accomplice” may be unreliable for that reason when looking for support in that witness’s evidence of the evidence given by the “accomplice”, there is no reason why the jury may not look for support in such evidence.

[203]

Benefit obtained by witness — warning

A warning was given pursuant to s 165 of the Evidence Act !995 that the evidence of these three witnesses may be unreliable. The appellants complained on appeal, but not at the trial, that the warning given underestimated the role played by Rossini, and hence the potential jeopardy in which he stood when giving his evidence in accordance with the statements he made to the police.

Held:

(1) The purpose of the requirement that the warning inform the jury of matters which may cause the evidence to be unreliable is to provide the jurors with knowledge of matters not within their general experience and understanding. [116], [182]

Regina v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 applied.

(2) If a request is made for a s 165 warning to be given, those matters need to be stated only in such detail as is required to achieve that purpose. Except in the case of identification evidence, a trial judge in a criminal case is required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury; the conduct of the case necessarily bears on the extent to which the judge is bound to comment on and discuss the evidence. [182]

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 followed.

Crown prosecutor’s breach of the rule in Browne v Dunn

The Crown called as a witness the wife of an associate of the three appellants, who gave evidence that she was sitting in a motor vehicle a block away from the deceased’s vehicle. She saw three men leave the building opposite her own vehicle and noticed that two of them were carrying guns. They ran to the deceased’s vehicle and she saw two of them firing shots into that vehicle. She had them under observation for between five and ten minutes. She knew the three appellants and had met them “a lot”. She gave evidence that neither Kanaan nor Mawas was involved in the shooting. Her evidence was thus negative identification (or exculpatory) evidence.

No application was made by the Crown prosecutor to cross-examine the witness pursuant to s 38 of the Evidence Act, although there had been some discussion of s 38 before the witness was called. In his final address to the jury, the Crown prosecutor invited the jury to disbelieve her evidence. The appellants complained on appeal, but not at the trial, that the Crown prosecutor, by doing so without any indication that the Crown challenged her evidence, had denied her (and the appellants) the opportunity to explain or to qualify the matters raised by the Crown prosecutor in his address.

Held:

(1) The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has placed more emphasis on the Crown’s obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. [84]

(2) When the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown to refuse leave to cross-examine in relation to the unfavourable evidence given, subject to s 137 of the Evidence Act. [85]

(3) The witness had previously given evidence before the NSW Crime Commission, and that evidence was relevant to the weight to be given to her evidence at the trial as demonstrating that the apparent confidence with which her evidence was given at the trial was not wholly consistent with the evidence she gave before the Crime Commission. Cross-examination by the Crown was therefore justified, and leave to cross-examine would have been granted. [95]

(4) The conduct of the Crown prosecutor was in clear breach of his obligation in accordance with the rule in Browne v Dunn. That breach may well have created some unfairness to the witness, but the issue is whether the appellants were directly prejudiced by the Crown prosecutor’s conduct.

[96]

(5) The appellants were unable to show that they had any material which they could have either led or raised in cross-examination of the witness to support her evidence had the Crown prosecutor challenged her evidence as the rule in Browne v Dunn requires. [104]

(6) A direction that the defence had been denied the opportunity to support the witness’s evidence either in cross-examination or by calling independent evidence would ordinarily have been an appropriate one in the circumstances, but no such direction was sought and no ground of appeal was directed to the failure to give such a direction. [104]

(7) There was no miscarriage of justice. [105]

Browne v Dunn (1894) 6 R 6; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; Regina v Milat (BC9607720), 23 April 1996, Hunt CJ at CL; Regina v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450; Regina v Ronen [2004] NSWSC 1298 (Whealy J) referred to.

Negative identification evidence direction

The judge gave the jury directions in relation to identification evidence generally which were appropriate to both the positive identification evidence on which the Crown relied and the negative identification evidence on which the appellants relied. The appellants complained on appeal, but not at the trial, that those directions should have been qualified so far as they applied to the evidence favourable to their case.

Held:

(1) Although negative identification evidence does not fall within the terms of s 116 of the Evidence Act, it is nevertheless “evidence of a kind that may be unreliable”, and thus falls within s 165. [115], [126]

(2) The mere fact that the evidence favours the accused is not a good reason for not giving a s 165 warning in relation to it. [127]–[128]

(3) A s 165 warning in relation to negative identification evidence is already tempered to some degree by comparison with the warning required for positive identification evidence by s 116. [132]

(4) What is required in relation to negative identification evidence is that the trial judge ensures by appropriate directions that the jury understands that:

(i) as the Crown must establish beyond reasonable doubt that it was the accused who committed the offence charged or who was involved in its commission (as the case may be), the negative identification evidence raises a doubt as to that fact,

(ii) the Crown must eliminate such doubt in order to succeed in establishing that fact, and

(iii) if there remains a reasonable possibility that the negative identification evidence is correct, the Crown case against the accused must fail. [133]

(5) A direction that the jury had to exclude the negative identification evidence beyond reasonable doubt before being able to accept the positive identification evidence is more likely to confuse rather than assist the jury.

[144]

(6) The directions given in the present case were sufficient to make it clear to the jury where the onus of proof lay in relation to each type of identification evidence. [152]

(7) Whether a separate warning should be given in relation to negative identification evidence depends on the circumstances of the particular case. [154]

(8) The reference to serious injustices having occurred resulting from honest but mistaken evidence of identification in other cases is not appropriate in relation to negative identification evidence. [131], [154]

Regina v Rose [2002] NSWCCA 455; (2002) 55 NSWLR 701 discussed and followed

Regina v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301; Regina v Kanaan [2005] NSWCCA 385 applied

Regina v Pollitt (1990) 51 A Crim R 227; Regina v Chan [2002] NSWCCA 217; (2002) 131 A Crim R 66; Regina v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 referred to

Mule v The Queen [2002] WASCA 101 not followed

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF CRIMINAL APPEAL

60265, 60219 & 60367/03

HUNT AJA

BUDDIN J

HOEBEN J

Thursday 13 April 2006

KANAAN & ORS v REGINA

Judgment

1 THE COURT: Michael Kanaan, Rabeeh Mawas and Wassim El-Assaad were each convicted by a Supreme Court jury of the murder of Danny Georges Karam at Surry Hills on 13 December 1998.

2 In sentencing the appellants, Wood CJ at CL described the killing as a deliberate assassination carried out under the leadership of the appellant Kanaan, substantially to advance the interests of the appellants in ongoing criminal activities — an assassination motivated by greed, carried out with considerable pre-meditation, and callous and cold-blooded in character. He sentenced Kanaan to imprisonment for life, the appellant Mawas to imprisonment for 25 years with a non-parole period of 19 years, and the appellant El-Assaad to imprisonment for 24 years with a non-parole period of 18 years. Each of the appellants has appealed against his conviction.

3 The appellants Mawas and El-Assaad have each also sought leave to appeal against his sentence. Kanaan sought to reserve his position in relation to his sentence until his appeal from an earlier murder conviction and life sentence is resolved. He conceded that he could not contend that life sentence in the present case was manifestly excessive when considered in the light of the sentence he received in the earlier case, and sought to reserve an application for leave to appeal against the present sentence in the event that the result in that appeal was in his favour. That appeal has now been resolved, and his life sentence in that case stands: Regina v Kanaan [2005] NSWCCA 385 at [194]–[195]. In those circumstances, there is no utility in reserving any further an application by Kanaan for leave to appeal against his sentence in the present case, and his application for such leave is refused.

The evidence

4 The deceased Karam — whom the judge described as a vicious killer who was himself a danger to the community — was shot dead when sitting in his motor vehicle, not far from an apartment used by him as a safe house for the preparation and sale of cocaine by an organisation overseen by the deceased and known as "DK's Boys". (“DK” stood for Danny Karam.)

5 The case against the appellants was that they were part of the joint criminal enterprise with one Charlie Gea Gea to shoot Karam with the intention of killing him. Kanaan, Mawas and Gea Gea were alleged to have fired the weapons at the deceased. The case against El-Assaad placed him in the position more of an accessory before the fact, although an important participant in the enterprise. Gea Gea left Australia for Lebanon shortly after the shooting and he has not returned. It has not been possible to secure his extradition.

6 The Crown case against all three appellants relied principally on the evidence of a man given the pseudonym Alan Rossini for the purposes of these proceedings, and to a lesser extent on the evidence of Rossini’s cousins who were given the pseudonyms Peter and Oscar Laycock for the same purpose. All three witnesses had been arrested after Karam’s murder on drug supply charges. Each was taken before the NSW Crime Commission where he gave evidence of his criminal activities and of the criminal activities of others. In due course, the drug charges against the three were withdrawn when they had signed undertakings to give evidence of their knowledge of various criminal activities, including the murder of Karam. In return, they were each given an undertaking by the Attorney General pursuant to what is now s 33 of the Criminal Procedure Act 1986 that, provided the evidence they gave was the truth, their evidence would not be used against them.

7 Each of the appellants was a member of DK's Boys, as were Rossini and Gea Gea. The main activity of that organisation was selling cocaine in Kings Cross. The Boys organised the supply of cocaine to their own street-level runners. They also stood over other dealers who paid them protection money known as "rent", which allowed those other dealers to operate without fear of harassment from DK’s Boys. The Boys beat up anyone who did not pay the rent. At the peak of the business, which was around the time the deceased was killed, the business was earning about $28,000 a week. Each of the appellants had to pay rent to the deceased. The deceased told Kanaan and Rossini that he was putting money away for them, but for some time they were only paid about $100 a week.

8 The deceased provided each of Kanaan, Rossini and two other members of DK’s Boys with a gold ring to wear as members of the "inner group" within the organisation. The deceased also wore such a ring. The ring had a tiger’s head with ruby eyes and a diamond in its mouth. The letter "D” was stamped on the ring with the wearer's initial stamped inside the ”D”, so that Kanaan’s ring had an “M” stamped inside the "D”. The deceased requested each of them to pay $900 for his ring.

9 Kanaan and Rossini had also been involved for some 18 months in hydroponically growing marijuana in a safe house at Parramatta. Some time after the first crop of the marijuana had been harvested and dried, the deceased took the crop to his own house in Randwick, saying that he wanted to dry it further. Kanaan and Rossini saw the crop the next day and noticed that there was less marijuana. The deceased claimed that it had dried out at that weight. Kanaan and Rossini concluded that the deceased had “ripped them off”. The remaining crop was sold for $32,000. Kanaan and Rossini, although responsible for maintaining the crop, received none of the proceeds. A second crop was sold for $30,000, and again Kanaan and Rossini received none of the proceeds.

10 Kanaan (whom his counsel described as one of the deceased’s lieutenants) started to express feelings of resentment towards the deceased. He and Rossini came to the view that the deceased had taken advantage of them after all they had done to build up his business. Kanaan and Rossini were then permitted to arrange their own teams within the DK’s Boys organisation. At that time, the money Kanaan and Rossini earned in their teams was not enough to pay the deceased the full amount of the new rent. Their earnings depended on a number of variables, including the amount of cocaine sold, the quality of that cocaine, how many runners were on the street, whether there had been any arrests in the group, as well as growing competition from other groups. The deceased nevertheless insisted on being paid the full amount of the rent at all times, and he became angry with Kanaan and Rossini if they could not pay. The deceased would sometimes make threats of violence towards them.

11 Early in 1998, the deceased asked Kanaan to obtain a loan from his parents to help finance a computer shop in Randwick, which the deceased used to launder his money. The business was in Kanaan’s name. The deceased never repaid the loan. The relationship between the deceased and Kanaan became more strained. The deceased would yell and scream at Kanaan frequently, and on one occasion Kanaan said to Rossini that they should "knock this cunt".

12 At about the same time, Rossini became involved in capping cocaine for his own team. This involved putting cocaine into capsules for sale. The capsules were passed on to the runners for sale in Kings Cross. The proceeds were passed back to Rossini’s team, who gave the deceased $4000 and the remainder was shared by Rossini and the three appellants.

13 Each of the three appellants and Rossini was provided with a weapon by the deceased — Kanaan a 0.22 calibre revolver, Mawas a 0.45 pistol, El-Assaad a 9 mm pistol and Rossini a 0.45 calibre semi-automatic gun.

14 In 1998, the Paddington unit where the business of DK’s Boys had been carried on became "hot", and the deceased arranged in September 1998 to move his safe house to a unit in Riley Street, Surrey Hills, not far from the place where he was eventually shot. Shortly after the move, Kanaan spoke for the first time to Gea Gea, Mawas and El-Assaad about killing the deceased. Mawas said at first that it was unnecessary to kill him, as they could do other things on the side. He nevertheless continued to take part in the planning. An early plan was to kill the deceased at his home, but this plan was abandoned when it was realised that not many people knew where the deceased lived (and that they may therefore be implicated). The three appellants and Gea Gea continued to discuss killing the deceased. Another plan was to put something in the deceased's heroin supplied to him by the organisation which would kill him immediately. Some white powder was added to the heroin destined for the deceased, but the deceased realised that his heroin had been interfered with, and he instructed Kanaan and Rossini to attack the original supplier of the heroin with a baseball bat. The plan was then developed to kill the deceased as he entered his motor vehicle when leaving the Riley Street premises.

15 The opportunity to put this plan into effect occurred when the deceased instructed Kanaan to supply him with a fast vehicle and two firearms for a purpose he did not disclose. During the days they waited for the deceased to arrive in Riley Street to collect the vehicle and the firearms, a group consisting of the three appellants, Gea Gea, Rossini and the two Laycock brothers (who had been introduced into DK's Boys in the second half of 1998) cleaned the Riley Street unit to remove any fingerprints.

16 On the day of the shooting, the three appellants, Gea Gea, Rossini and the Laycock brothers were in the Riley Street unit when the deceased arrived at the front door of the building and pressed the buzzer to be allowed to enter. The three appellants and Gea Gea armed themselves: Kanaan selected a 9 mm pistol, Mawas a 9 mm pistol also, El-Assaad a 0.357 calibre revolver, and Gea Gea the 0.45 calibre weapon the deceased had given Rossini. The three appellants and Gea Gea then left the unit. The deceased pressed the buzzer a second time, and Rossini opened the front door of the building by remote control. The deceased entered, had some conversation with Rossini and consumed a couple of cones of cannabis. El-Assaad re-entered the unit and supplied the deceased with the firearms he had requested. The deceased asked Rossini to put the firearms in his motor vehicle, and the Laycock brothers carried them out to the street wrapped in a blanket and placed them in the boot of the vehicle. They returned to the unit. After staying in the unit for between 10 and 15 minutes in all, the deceased left. El-Assaad made a telephone call to warn Kanaan, Mawas and Gea Gea that the deceased was on his way down to the vehicle. There were then about 20 rapid gunshots, followed by another two gunshots. Peter Laycock gave evidence that he looked out of the unit’s window and saw Mawas standing on the driver’s side of the vehicle holding a weapon and shooting. El-Assaad went down to the vehicle, opened the driver's door without leaving fingerprints and removed the deceased's mobile telephone, because he knew that it would have their telephone numbers recorded. A crowd had begun to gather in the vicinity of the motor vehicle.

17 The medical evidence established that there were 16 gunshot entry wounds to the deceased’s body The ballistic evidence established that three different firearms had been used in the killing: a 9 mm weapon, a 0.45 calibre weapon and a 0.357 weapon (possibly a revolver). The Crown case was that all the shots had been fired from the driver’s side into the vehicle. Sixteen cartridges were identified, six from the 9 mm weapon, five from the 0.45 calibre weapon, and five from the 0.357 weapon. The medical evidence established that the 9 mm cartridges had been fired from close range, and that the other cartridges had been fired from an intermediate or greater distance from the body.

18 The appellants did not give evidence, nor did they call any evidence.

19 The Crown case was that the primary motives for the murder were the appellants' dissatisfaction with the money they were paid by the deceased and a desire to take over his operation once he was dead and so obtain a greater share of the market for themselves. An additional motive ascribed to Kanaan was his loss of profit from the hydroponic cannabis episode. Evidence was elicited from Crown witnesses which established that a number of other persons also had a motive to kill the deceased. The defence case was that one or other of those persons were or may have been responsible for the murder. They attacked the evidence of Rossini on the basis that he was himself criminally involved in the murder, and that he had conspired with the Laycocks to blame the appellants for what others had done.

The grounds of appeal

20 Each of the appellants filed four identical grounds of appeal:

1 The trial miscarried by reason of unfavourable and prejudicial media reporting of the trial together with the giving of inadmissible and prejudicial evidence at the trial.

2 (a) A miscarriage of justice was caused by the Crown prosecutor's final address in respect of the evidence of Ngaari Zahabe.

(b) The trial judge erred in his directions in respect of the evidence of Ngaari Zahabe.

3 The trial judge failed to direct the jury adequately, and erred in his directions, in relation to "Rossini” and the “Laycock” brothers.

4 A miscarriage of justice resulted from a combination of the matters in the preceding grounds.

El-Assaad added two further grounds of appeal:

5 The trial judge erred in directing the jury on the effect of the undertakings by Rossini and the Laycocks. (This will be considered together with the third ground of appeal.)

6 The trial judge erred in his directions on common purpose.

Kanaan added a further ground of appeal in which Mawas joined:

7 A miscarriage of justice was occasioned as a result of the absence at trial of fresh evidence.

The fourth ground will be considered after the sixth ground, so that it encompasses all of the other grounds of appeal complaining of error.

Ground 1 — Unfavourable and prejudicial media reporting and inadmissible and prejudicial evidence

21 This ground of appeal relies on the combination of six incidents during the cross-examination of the witness Rossini. The appellants assert that their combined effect caused the trial to miscarry.

Incident 1

22 On the second day of the trial, the Daily Telegraph newspaper, in its report of the Crown prosecutor's opening address to the jury, described Rossini as a "former gang member turned supergrass" and Kanaan as a "gangster". In the application by Kanaan for the discharge of the jury based on the reference to him being a “gangster”, it was submitted that the word denoted someone heavily involved in criminal activity at the highest level. The other two appellants joined in the application on the basis that the word had connotations prejudicial to them as well. The Crown prosecutor pointed out that he had not used the description “supergrass” in his opening address, but he submitted that the effect of both expressions could be removed by a further direction to the jury about ignoring publicity given to the trial.

23 The judge acknowledged that the report was an unfair report of the Crown’s opening address, and that those expressions were no more than the reporter's own conclusions. He had earlier explained to the jury that they must ignore newspaper reports of the trial and confine their consideration to the evidence given in the trial. He pointed out that the evidence in the trial would demonstrate the participation of each of the appellants in the organised drug trade, as this was relevant to the motives asserted by the Crown for the murder. The judge referred to the somewhat more robust view now taken by the courts of the ability of juries to ignore and place to one side inaccurate and irresponsible reporting and to the acceptance by the courts that juries will respect the directions given to them when such an incident arises. The application for discharge was refused.

24 It has long been accepted that jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds: Duff v The Queen [1979] FCA 83; (1979) 28 ALR 663 at 677; AG v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711; Hinch v AG (Vic) [1987] HCA 56; (1987) 164 CLR 15 at 74; Regina v George (1987) 29 A Crim R 380 at 395; Regina v Bell (BC9805451), CCA, 8 October 1998 at 4-7. It must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the directions given to them by the trial judge: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20 at 22; Hinch v Attorney-General (Victoria) at 74; Regina v Yuill (1993) 69 A Crim R 450 at 453. It is a frequently recognised phenomenon that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom, to the exclusion of other sources of information: AG v News Group Newspapers Ltd [1987] QB 1 at 16; Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 569-570.

25 In Duff v The Queen, the Full Court of the Federal Court said (at 677-678):

When an adverse press report appears, a trial judge may sometimes have to take steps to eliminate or diminish the possibility of unfairness to an accused person. The discharge of a jury may be necessary in particular circumstances, but that would be exceptional. There is no criterion save that of doing justice to the best of the court's ability in all the circumstances.

[...]

An argument based upon reports and articles does not touch the propriety of the proceedings before of the court unless it may reasonably be thought that, on account of the publications, either the jury were unable to do or they had not done justice according to the oath which they took. It is not sufficient to show that press reports and articles made it more difficult for the jury to do justice, nor is it a valid ground of appeal to show that the jury were required to do justice in difficult circumstances outside the court's control.

26 In Regina v George, Street CJ said (at 395):

The principle is essentially one that places responsibility on the trial judge to determine, in the light of the atmosphere of the trial and the nature and extent of the publicity, whether it is necessary to discharge the jury in the interests of ensuring a fair trial.

He quoted with approval (at 396) the following passage from the decision of this Court in Regina v Edward James Smith, CCA, 8 October 1982 (reported on other issues at [1982] 2 NSWLR 608):

This Court has repeatedly emphasised that the decision to discharge or not is essentially one within the discretion of the trial judge, being a decision to be made in the awareness of contemporary atmosphere and the likelihood of material prejudice being occasioned to the accused person. Moreover, trial judges should not be encouraged to discharge juries merely upon the ground of some prejudicial material having been published if appropriate directions can cure the situation.

See also Regina v Graham (1986) 28 A Crim R 259 at 259-260.

27 In The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 614-615, the following passage from this Court’s judgment in Regina v Munday (1984) 14 A Crim R 456 at 457-458 was quoted with approval:

[It] is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.

28 In Regina v Yuill, Kirby ACJ said (at 453-454):

There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.

29 In Regina v Philip Harold Bell, Spigelman CJ said (at 6):

[In] recent years the prior tendency to regard jurors as exceptionally fragile and prone to prejudice has not carried the day in appellate courts. This is based on a considerable body of experience by trial judges in the criminal justice system which has convinced trial judges that jurors approach their task in accordance with the oath they take, that they listen to the directions they are given and implement them.

30 In John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344, Spigelman CJ returned to the issue:

[103] There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.

[...]

[110] The perspective that jurors properly perform their task, are true to their oath and comply with a trial judge's directions has repeatedly been applied in appellate courts over recent years. (See Regina v Milat (BC9800394), Court of Criminal Appeal, 26 February 1998, unreported; Regina v Bell Court of Criminal Appeal, 8 October 1998, unreported; Regina v Long [2002] QSC 54; (2002) 128 A Crim R 11; Regina v Richards & Bijkerk [1999] NSWCCA 114; 107 A Crim R 318; Regina v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; Regina v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; Regina v Burrell [2004] NSWCCA 185.)

See also Regina v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11 at [113].

31 The judge in the present case gave the jury a firm direction to ignore the Daily Telegraph report if they had seen it, and he suggested that those who had not already done so should not read it. He told the jury that the report had "failed dismally in many respects to [report the opening by the Crown], being replete with a series of inaccuracies or errors and also using expressions which are utterly inappropriate and unfortunate".

32 The general nature of the evidence later given in the trial has already been described in this judgment. That evidence made it clear that the DK’s Boys organisation had all the structure and hierarchy of a criminal gang, and that Rossini was a member of that gang, involved in the supply of cocaine and protection for drug dealers and their runners in Kings Cross. The evidence also made it clear that Kanaan was high up in the structure of the gang, and that he had been involved in its activities. Those facts are sufficient basis for his description as a gangster. The evidence also made it clear that Rossini had been involved in those activities, but had “rolled-over” before the Crime Commission and was now assisting the police against Kanaan, with whom he was directly associated. Those facts constitute sufficient basis for his description as a supergrass as that term is usually understood.

33 What must be looked at is the overall context of the trial, not just the material as it stood at the time of the application for discharge: Regina v Sheikh [2004] NSWCCA 38; (2004) 144 A Crim R 124 at [19]. The possibility of unfair prejudice to the appellants was therefore virtually nil in the overall context of this trial. The judge made no error in his refusal to discharge the jury, but the effect of this incident remains to be weighed together with the effect of the other incidents yet to be considered.

Incidents 2 & 3

34 On the tenth day of the trial, the judge drew the attention of counsel to two further incidents — a reference on Radio 2UE to the witness Rossini wearing body armour, contrary to a request (but not an order) by the judge to the media the previous day not to refer to that fact; and the headline “Why these gold rings reflect a sinister side” of the report of the previous day’s proceedings in the early edition of the Daily Telegraph newspaper but not in its later editions. The judge asked counsel if they sought the discharge of the jury in relation to these matters. Counsel for Kanaan reserved his position, but no-one asked for a particular direction to be given. The two incidents were not raised again during the trial.

35 On appeal, it was asserted that the reference to body armour was highly prejudicial, as the jury would have understood it to mean that Rossini was such a high security risk as to need such protection and that the risk was connected with the appellants.

36 By the time the reference to body armour was made, the jury knew that Rossini was the witness's pseudonym, that the "Witness Protection Act" did not permit him to answer questions which if answered would lead to his identification, and that he was the subject of a "witness protection programme". The jury also knew that he has signed an undertaking to give evidence of his knowledge of various criminal activities. The evidence made it clear that these criminal activities went beyond those connected with the appellants. The cross-examination of Rossini on the disclosures he made to the Crime Commission underlined that fact.

37 If counsel then appearing for the appellants (none of whom appeared on the appeal) obtained the impression that the jury may have been misled into identifying the appellants as being connected with the risk against which Rossini wore the body armour, they had only to accept the judge's invitation to seek a direction which would have reminded the jury of the facts stated in the previous paragraph in order to dispel that impression. No such application was made, and the clear inference is that this was because no such impression had been conveyed at the time. The inclusion of this incident in the grounds of appeal is yet another example of counsel appearing on the appeal but not in the trial searching through the transcript for appeal points which caused no concern to those conducting the trial. However, for what it is worth, the effect of this incident remains to be weighed together with the effect of the other incidents of which complaint is made.

Incident 4

38 Rossini was cross-examined in order to demonstrate that the evidence he had given in the trial was inconsistent with the evidence he had given to the Crime Commission. In order to explain one such inconsistency, Rossini said that the evidence he had given to the Crime Commission was his "memory around that time". The cross-examination proceeded:

Q. Your memory has improved, has it? A. We sat down to take the statements.

Q. Yes; I said your memory has improved, has it? A. Yes.

Q. And that is because of the marijuana you had been smoking? A. No sir, because the Crime Commission, I was talking about 30 different incidents. When we sat down, I could refer to one by one.

There is no dispute that the witness was attempting to explain the inconsistency by the fact that he had to deal with thirty different incidents before the Crime Commission, whereas when he came to give evidence in the trial he had the benefit of separate statements being taken in relation to each incident of which he was to give evidence and could therefore concentrate on the detail of each.

39 Complaint was made on behalf of all three appellants that the jury would have understood that they had been involved in the thirty incidents examined by the Crime Commission, and another application was made for the discharge of the jury. The application was refused by the judge. In the course of his reasons for that refusal, the judge said:

When read in the full context of the case, in particular having regard to the cross-examination of the witness, I am unpersuaded that the jury could properly, or even be likely to, infer that the 30 different incidents related to additional aspects of criminality involving the present accused, that is, additional to those already proved.

The judge referred to various possibilities as to how the jury may have interpreted the reference to the thirty different incidents — those thirty incidents could have included individual criminal acts in which Rossini had been involved as a member of DK’s Boys with persons other than the appellants or by himself, in addition to those on which the Crown relied to establish its case. The cross-examination of Rossini extended over many days and it was redolent with references to criminal activity in which he was alleged to have been involved by himself and with others. The judge also referred to a warning which had been given to counsel earlier in the trial, that cross-examination of Rossini on the inconsistencies in the accounts which he had given at different times concerning the various incidents in which he and the appellants were alleged to have been involved might well lead to further detail being intruded into the trial which would otherwise have been kept out of it.

40 In re-examination, Rossini agreed that, when he appeared before the Crime Commission, he had been asked a lot of questions about a lot of different things and a lot of different people, none of which had anything to do with the matters raised in this trial. Even if the judge had erred in the conclusions we have quoted from his judgment (and we do not accept that he did err), those answers in re-examination effectively neutralised any impression which could possibly have been conveyed that the thirty incidents of which Rossini gave evidence before the Crime Commission all related to the appellants.

41 Our own conclusion on a reading of the evidence is the same as that expressed by the judge. In reaching that conclusion, we do not place any weight on the fact that counsel had been warned of the dangers of cross-examining on inconsistencies in the accounts Rossini had given at different times. It was quite proper for counsel to have drawn attention to the inconsistencies, but the answer referring to the thirty incidents was also a quite proper answer to the suggestion implied in the comment that the witness's memory had improved, the suggestion being that his evidence was untrue because it was inconsistent with his evidence before the Crime Commission.

42 There was no error made by the judge in his ruling on this incident, but the effect of this incident remains to be weighed together with the effect of the other incidents of which the appellants complain.

Incidents 5 & 6

43 During the course of the cross-examination of Rossini a few days later, counsel for Mawas was concentrating on Rossini’s own criminal activities during his membership of DK’s Boys, including the dealing in cocaine in Kings Cross, the terrorising of people working in the drug trade in that area, the beating up of people on protection if they did not pay money for that protection, the purchase of three submachine guns for $15,000 on behalf of the deceased, a plan to “rip off” the vendor of those guns by taking them without paying for them and with violence if necessary, and the use of scare tactics, intimidation, robberies and shooting people.

44 After Rossini had expressed his inability to remember a number of details of the shooting of one Danny Sukkar by the deceased, he said:

Sir, dates and times was something that was not significant to me so dates and times absolutely not.

The cross-examination continued:

Q. All these things were just everyday to you? A. Just about, yes.

[...]

Q, And killing and guns and shootings and beatings and trading in drugs and other people’s misery was all grist to your mill? A. I was never part of the murders, sir.

Rossini had denied in his evidence that he was a party to the shooting of Danny Karam, the deceased in the present case.

45 An application was made for the discharge of the jury on the basis that the reference to “the murders” could only be reasonably associated with the appellants. It was submitted to the judge in the alternative that there had been a cumulation of prejudice such that the appellants could not have a fair trial. This application was deferred until the transcript was available.

46 After counsel for Kanaan had read the transcript, complaint was made of a further incident occurring shortly after the last. Counsel for Mawas was testing Rossini’s version of the distribution of firearms to the three appellants and Gea Gea prior to the shooting of the deceased in the present case. After repeating the distribution of the various firearms to the three appellants of which Rossini had given evidence in chief, the cross-examination continued:

Q. And Charlie Gea Gea, who is no longer we understand in the country — is that right? A. He skipped the country, yes, sir.

Q. He was going to use a .45 calibre pistol? A. That’s Charlie Gea Gea, yes.

Q. Do you know when it was that he skipped the country, as you put it? A. No, sir.

Q. In any event, he is not here to voice any view as to your allegation is he? A. He is on the run, sir, correct.

Q. He is on the run; are you sure he is not dead somewhere? A. I wouldn’t know if he was, sir.

Q. So you don’t know whether he is on the run or not, do you? A. Sitting here now, sir, I would say he is on the run.

Q. You don’t know that. You may say it, but you don’t know it? A. I believe he is.

Counsel’s rather inconsequential challenge to Rossini’s personal knowledge that Gea Gea was still “on the run” went on for almost a page of transcript, Rossini claiming that he must be still on the run because he had “skipped the country”. No complaint of the effect on the jury of this incident was made at the time.

47 In the light of the cross-examination to which reference has been made which preceded the second last incident, the judge said that he was not persuaded that the jury would reasonably relate the reference to “the murders” as a suggestion that the appellants were involved in those murders in addition to the murder charged. Nor was the judge persuaded that the fact that Gea Gea was on the run (if it were the fact) could be used by the jury as an indication of consciousness of guilt on his part which would relate back to the present appellants. He held that the alternative submission based on the cumulation of prejudice from all of the incidents had not been made good.

48 The judge did, however, state that it would be appropriate for a direction to be given to the jury in the summing-up to the effect that the jury were not free to use any indication of the consciousness of guilt on the part of Gea Gea as evidence against any of the appellants. He also offered to give a direction along those lines then and there, but it appears that this offer was never taken up.

Combination of incidents

49 On appeal, it was submitted that the combination of these incidents caused the trial to miscarry, and that such combination took the case well beyond the realm of speculative or hypothetical prejudice. It was submitted that, although each of the incidents alone may not have led to the prejudice necessary for the discharge of the jury, when taken together the cumulative impression conveyed by all of the incidents was entirely adverse to the appellants and overwhelming in its nature.

50 Emphasis has been placed in many cases on the superior position of the trial judge in cases involving alleged prejudice. A very experienced criminal trial judge, the first Brereton J, when sitting as a member of this Court in Regina v Ball (1960) 61 SR(NSW) 37, at 41-42, said:

Initially, if allegedly damaging and irrelevant material be volunteered, the matter lies at the discretion of the trial judge. He knows what is being stressed and what is not, he is alive to the temper and the atmosphere of the trial, he can appreciate suggestions and reactions not conveyed by a typed transcript. He is in a much better position than an appellate court to determine what is specious or technical pretext and what is genuine complaint. Therefore, in considering whether or not his discretion was rightly exercised, an appellate court must make due allowance for these factors, and must, as far as it can, place itself precisely in the trial judge’s shoes before it interferes. Before substituting its own discretion for his, the appellate court must be clearly of the view, not that it would have exercised its discretion differently, but that the trial judge manifestly exercised his wrongly.

This statement was adopted more recently by this Court in Regina v Ngo [2003] NSWCCA 82 at [49] (reported on other issues at [2003] NSWCCA 82; (2003) 57 NSWLR 55).

51 It was conceded by the appellants in the appeal that no error in the exercise of the judge’s discretion could be identified. Their argument was that, on the facts, the refusal to discharge the jury based on the accumulation of prejudice was so unreasonable or plainly unjust that this Court should infer that in some way there was a failure by the judge properly to exercise his discretion to discharge the jury: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

52 The six incidents on which the appellants rely in the present case have to be viewed not only within their immediate context and in the context of each other but also in the context of the directions which the judge had given to the jury early in the trial and what was said in the summing-up. At the very commencement of the trial, the judge referred to the publicity which had already been given to the events which led to the trial and to the publicity which may be given to the trial itself in the future, and he instructed the jury that all such publicity was “totally irrelevant in this trial”. He directed the jury to confine themselves to what happened within the four corners of the courtroom. Following the first of these five incidents, the judge reminded the jury of that warning, and he reminded the jury to “ignore any newspaper coverage or any other coverage of the proceedings”. The judge gave further warnings during his summing-up to base their verdict on material “which has been presented to you in this courtroom in the form of evidence, submissions and the summing-up”.

53 The judge made further reference to some of these incidents during the course of his summing up. In relation to incidents 4 and 5, the judge drew attention to the fact that the jury had heard evidence about all manner of criminal activity involving violence and drugs, and he emphasised that the appellants were not on trial for drug offences or firearm offences or anything of that nature. In relation to this other criminal activity, the judge gave unexceptional directions:

I emphasise that you must not reason along the lines of, well, the accused committed other offences or crimes, including serious crimes, if you thought that was the case, so they could just as easily have committed murder on this occasion. That line of reasoning is totally prohibited in a criminal trial. It does not follow logically and it risks introducing prejudice unfairly into the case.

[...]

So, please understand all that material has that background context, it has a relevance for both prosecution and defence and the like, but it does not permit you to reason along the lines: well, these people may have committed other offences, therefore they might just as well have committed this one. That would be wrong, that would be illogical, it would be unfair, and it cannot be done.

54 A trial involving all of the issues which arose in the present case was bound to be a difficult one for everyone concerned in it. The very nature of the crime which was alleged to have been committed by the appellants and the background to that crime made it inevitable that the jury would learn a great deal about these appellants and the persons with whom they associated, giving rise to the need for the directions which the judge gave. No complaint is made in this appeal that the judge could have given further directions in relation to these matters. In our view, the judge amply and fairly and completely dealt with the issues which had arisen.

55 In the context to which reference is made in par [52] supra, and in the light of the authorities to which reference has been made, we are not satisfied that the result was so unreasonable or plainly unjust that this Court should infer that the judge erred in the exercise of his discretion to reject the application for the discharge of the jury based upon the accumulation of these six incidents. We disregard the fact that many of the answers given by Rossini were clearly the foreseeable result of the questions which were being asked of him in cross-examination. If prejudice results from the way in which counsel for an accused person has conducted the case, this can in some circumstances give rise to the need for a new trial where that conduct was of such a nature in the circumstances of the case as to have led to a miscarriage of justice: Regina v Birks (1990) 19 NSWLR 677 at 683-685; Regina v Ignjatic (1993) 68 A Crim R 333 at 338; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124. That has not been suggested in the present case; nor could it be.

56 Accordingly, the first ground of appeal is rejected.

Ground 2 — Ngaari Zahabe: (a) Evidence Act 1995, s 38; and (b) negative identification directions

57 These two grounds may for convenience be dealt with partly together, as each is based on the same material in the trial. After indicating that material, Grounds 2(a) and 2(b) will be dealt with separately.

The material on which these grounds are based

58 Ngaari Zahabe is the wife of Rame Zahabe, who regularly trained with Rossini at a gymnasium four or five times a week from June or July 1998. Zahabe used to purchase the steroids he took in connection with his training at the Riley Street unit. He would collect Rossini from the unit to go with him to the gymnasium. He had known each of the three appellants before he had started to visit the Riley Street unit, Kanaan for two to two and a half years. When at the unit, he had seen Kanaan once or twice a week, El-Assaad as frequently and Mawas only from time to time. He had also seen the deceased there at times during the four weeks before the shooting.

59 Earlier on the day of the shooting, Zahabe said, he received a call on his mobile telephone from Rossini inviting him to call into the Riley Street unit. He was later driving with his wife and, as he thought he may have left his wallet at the Riley Street unit on his last visit, he went to the unit to inquire about it. Zahabe said that he was admitted to the unit and took a steroid tablet. He saw the deceased, El-Assaad and one of the Laycock brothers there. He left the unit shortly before the deceased, and the deceased was leaving only a short distance behind him. As he was leaving the building, he heard Rossini over the building intercom tell him to come back upstairs. He returned to the building, just as the deceased was leaving it. Rossini let him back into the unit. He heard something like firecrackers outside. He then received a telephone call on his mobile telephone from his wife, who had remained in the motor vehicle, asking him to return. He did so, and his wife was in a state of shock and wanted to leave. They drove off. Later that night, his wife told him about the shooting in the street.

60 The evidence given by Zahabe differed somewhat from that given by Rossini, and to some extent it was inconsistent with the evidence given by his own wife, but no significance was given to these discrepancies in the appeal. Rossini gave evidence that Zahabe had arrived at the front door of the building in Riley Street just after El-Assaad had made the telephone call to warn the other two appellants and Gea Gea that the deceased was on his way down to his vehicle. Rossini saw him approaching the building on the security camera connected to the building intercom. El-Assaad had called out to Zahabe on the intercom that he should "get out of here", but he was still there when the deceased walked out of the building. The deceased had asked Zahabe how he was as they passed each other at the front door.

61 Rossini said that Zahabe had come to the unit that night, but only at the time the deceased was leaving. He denied that Zahabe had come to look for his wallet; he said that he had never known Zahabe to carry a wallet. He denied that he was Zahabe’s supplier of steroid tablets, and said that he had only taken three or four steroid tablets himself.

62 Mrs Zahabe was called by the Crown. She gave evidence that she and her husband had had dinner at Brighton "just before dark". They were driving around in their motor vehicle when her husband received a call on his mobile telephone. He informed her that they were going to Riley Street to visit Rossini. When they arrived, her husband went into a building and she turned the vehicle around and parked opposite the building. After listening to music in the vehicle, she saw her husband walking out of the building, but heard a voice saying "Rame [her husband], come back upstairs" when he was halfway across the road. He returned to the building. When her husband had first left the building, another man left the building within seconds and walked to another vehicle, which was parked a block away from the unit. She did not suggest in her evidence that she had recognised that other man. (Her husband gave evidence that she had later asked him who the man was.) She saw the man enter the vehicle on the driver's side. The vehicle's headlights came on, as did its brake lights.

63 At that time, Mrs Zahabe’s attention was diverted to three men at the door of the building which her husband had visited. They were talking to each other. One of the men pulled his shirt up, and she saw a black gun tucked into the front of his trousers. A second man, who was taller than the first man, also pulled his shirt up and took a gun out. She did not see the third man produce a gun. The three men ran quickly to the vehicle to which the man leaving the building had walked. The shorter of the two men with guns started firing shots into the window of the door on the driver's side, with his hand halfway inside the window. The second man then started firing shots into the window. At one stage, both of them were firing at the same time. She did not see the third man fire any shots. The second man stepped back and then fired two or three more shots. The third man was at all times behind the other two men. She heard at least 15 or 16 shots in all. The three men ran away down a laneway to a vehicle there. She telephoned her husband, who returned to the vehicle and they drove off.

64 Mrs Zahabe said that she had had the three men under observation for between five and ten minutes. Although night had fallen, she said the street at the entrance of the building in which the unit in question was located was “pretty lit up”. She gave descriptions of the three men involved in the shooting and of their clothing. Part of her description was that all three men were of “Islander appearance”. The totality of her descriptions was inconsistent with the men involved in the shooting having been Kanaan, Mawas and Gea Gea.

65 Eleven days later, Mrs Zahabe was taken to a police station to be shown video images of each of the three appellants, Rossini and a man she knew as Eddie. (Eddie does not appear to have been otherwise identified; Gea Gea was called Charlie.) She said that she had known them as friends of her husband for around two years and had met them “quite often, a lot”. She was asked in chief:

Q. You know the accused Michael Kanaan and you know the accused Rabeeh Mawas? A. Yes.

Q. Were either of them involved in the shooting? A. No.

The Crown prosecutor did not seek leave pursuant to s 38 of the Evidence Act to cross-examine the witness in relation to those answers. The cross-examinations on behalf of the appellants did nothing to disturb the effect of that evidence.

66 None of the other witnesses as to the events in the street that night was able to give a description which clearly identified Kanaan, Mawas or Gea Gea or to identify them from photographs. One witness described the three men as in their early twenties, with dark skin and dark hair, and of Italian, Greek or Middle Eastern appearance. Another described the shooter he could see as being Lebanese, but the three men as having white skin. Another witness described the three men as having white skin. Most witnesses described the men as having a Mediterranean or dark or olive complexion. Two witnesses described either one or two men at the scene as having an Islander appearance, but the evidence does not suggest that the men so described were the shooters. The judge told the jury in his summing-up that, although some witnesses had described men acting suspiciously at the scene as being of Islander appearance, only Mrs Zahabe described any of the shooters in that way.

67 One witness, who had been driving a taxi at the intersection of Riley and Albion Streets, gave evidence of seeing three or four males, aged no more than 16 years old, running towards Oxford Street. He said that one of them had long, spiky blond hair. The Crown prosecutor was granted leave pursuant to s 38 of the Evidence Act to cross-examine this witness, who agreed that the signed statement he had volunteered to the police had said nothing about blond, spiky hair. He denied using the description of the males in his statement as having an Arabic appearance, but he suggested that he would have said Middle Eastern. He maintained that the males he saw were about 16 years old, despite the description in his signed statement that they were in their early to mid twenties. The various descriptions of the clothing worn by the three men were of no real assistance in either identifying or excluding Kanaan, Mawas and Gea Gea as the three men at the scene.

68 Those witnesses who mentioned the state of lighting in the area where the shooting occurred described it in terms which suggested that it was dim. It is fair to suggest that the direct identification evidence in its totality — apart from that of Mrs Zahabe and Peter Laycock — gave no assistance at all to the jury. Only Mrs Zahabe gave what has been described as negative (or exculpatory) identification evidence, that she was able to exclude Kanaan and Mawas as two of the three men involved.

Ground 2(a) Evidence Act, s 38

69 This ground asserts that the Crown prosecutor’s final address in relation to the evidence of Ngaari Zahabe caused a miscarriage of justice.

70 In his final address to the jury, the Crown prosecutor (who addressed first) said of the evidence of Mrs Zahabe:

She was asked how long the incident took and she initially said ten minutes. She then said between five and ten minutes. She says it was pretty well lit up under where the front of the building was. She says that neither Mr Mawas nor Mr Kanaan were involved in the shooting.

Well, you have to make an assessment of her evidence. You have to make a determination about her credibility. When you come to make an assessment of her evidence and her credibility you might want to take into account a number of matters: firstly, she says that she had known the accused for a number of years. She had seen them quite regularly apparently. It would seem more regularly than her husband had seen them. She says, and it is a matter to you to assess, that these men stood in a brightly lit area and pulled out guns. She says that they stood there and looked at her for a period of time before; they then went over and apparently did the shooting.

She says that the event took initially ten minutes and then five to ten minutes. It is a matter to you to make an assessment but the Crown suggests that you would have some grave doubts in relation to the reliability of her evidence.

71 Counsel appearing for Mawas at the trial spent some time in his final address basing submissions on the quality of the evidence given by Mrs Zahabe. He said that she had not been shown to have any reason to lie or to deceive the jury in any way. In expressing the importance of her evidence, he said:

Ngaari Zahabe of all of the eye witnesses is the most important for these reasons, and in my submission to you she gave evidence in a way which was clearly a woman speaking from her observations and speaking without doubt as to who she had seen and, most importantly, quite clearly, that she had not recognised any of the men she knew and they were not involved.

72 Counsel appearing for Kanaan at the trial in his final address specifically took up the remarks of the Crown prosecutor. He told the jury that the Crown did not want them to accept the evidence of Mrs Zahabe because her evidence destroyed the Crown case — it was “poison” to the Crown case, and it had left its case "in tatters", he said. Yet, he pointed out, the Crown prosecutor had never suggested to Mrs Zahabe that she was “hiding the truth” or had “got it wrong”, and he had left her evidence uncontested. Counsel suggested to the jury that the Crown had instead attempted in a roundabout way to make out that her evidence was a "put-up job", when it was clear and uncontested. Her evidence of non-recognition, he said, was just the same as the recognition evidence given by Laycock when he said he saw Mawas shooting into the vehicle. Her evidence, it was submitted, told the jury a great deal, and it had the effect that the identification evidence on which the Crown relied left many questions unanswered, questions which should trouble them.

73 Counsel for El-Assaad made no reference to the Crown prosecutor's address, no doubt as El-Assaad was not, on the Crown case, one of the shooters. Mrs Zahabe had not identified El-Assaad as the man who, on the Crown case, subsequently went down to the motor vehicle to remove the deceased's mobile telephone. However, she was not present at the relevant time.

74 No complaint was made on behalf of any of the appellants at the trial concerning the Crown prosecutor's address in relation to Mrs Zahabe. In his Summing-up, the judge reminded the jury of the submissions made by counsel for Kanaan — that the basis of the Crown prosecutor's argument that Mrs Zahabe "had got it wrong" had not been put to her when she gave her evidence. The judge was not asked to give any further directions on this issue.

75 It was submitted on appeal that the remarks by the Crown prosecutor were unfair, in that they clearly invited the jury to conclude that the evidence of Mrs Zahabe, his own witness, was not truthful. The Crown prosecutor, it was submitted, should have made it clear when Mrs Zahabe gave her evidence that the Crown challenged her negative identification, and by not doing so denied her (and the appellants) the opportunity to explain or to qualify the matters raised by the Crown prosecutor in his final address: Browne v Dunn (1894) 6 R 67 at 70-71, 76-77, 78-79.

76 The report of Browne v Dunn is not readily available and, at the invitation of the appellants, reference is made to Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16-23 (Hunt J) in which Browne v Dunn and the decisions which have followed it are fully discussed. That discussion has been referred to with approval in a number of appellate decisions: Archer v Richard Crookes Construction Pty Ltd (BC9705329), Court of Appeal, 22 October 1997, at 7; Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 at 148 (Full Federal Court); Regina v Pye [2000] NSWCCA 544 at [54]; Southern Area Health Service v Brown [2003] NSWCA 369 at [102]–[103]; Markem Corporation v Zipher Ltd [2005] EWCA Civ 267 at [57]–[61] (English Court of Appeal); and Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226 at [54]. See also Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224-225 (Court of Appeal) and Regina v Birks at 689-690 (Court of Criminal Appeal).

77 The Crown has disputed that any “positive assertion” was made by the Crown prosecutor that Mrs Zahabe should not be believed. That is so, but his intention is not relevant in this appeal, nor is the appellants’ allegation that his conduct was improper. It is the effect of the Crown prosecutor’s conduct, not its propriety, which may cause a miscarriage of justice: TKWJ v The Queen at [25], [79], [97], [101], [107]–[108]; Nudd v The Queen [2006] HCA 9 at [10]–[19], [24], [64], [68], [157]. The relevant issues in this case are how those submissions by the Crown prosecutor would have been interpreted by the jury, whether that interpretation prejudiced the appellants (either procedurally or otherwise), and whether that prejudice resulted in a miscarriage of justice.

78 Notwithstanding the care with which the Crown prosecutor appears to have formulated his submissions to the jury concerning Mrs Zahabe, those submissions, in our opinion, would inevitably have been interpreted by the jury as an invitation to disbelieve her evidence. It is difficult to see how his remarks could have been understood in any other way. The final address by counsel for Kanaan obviously sought to meet the submissions by the Crown prosecutor as an attack on the truthfulness of his own witness. The judge in his summing-up described the Crown prosecutor’s remarks as having been directed to the credibility of Mrs Zahabe and as suggesting that her evidence was improbable. The Crown prosecutor made no objection that this had not been his intention.

79 The references by the Crown prosecutor to the witness's familiarity with the three accused — in themselves quite justifiable in the context of dealing with her evidence — may well also have been understood by the jury in the context of that invitation as a suggestion of bias on her part in favour of the accused. The reference to the men pulling out guns in a brightly lit area could have been understood by the jury as a suggestion that it was unlikely that the shooters would have done so in such an area. The repeated reference to the imprecision of the time Mrs Zahabe said she observed the three men may have been understood as another attack on the truthfulness of her evidence. It was claimed on appeal that the Crown prosecutor’s address may also have been interpreted as a suggestion that Mrs Zahabe was exaggerating the time she had been watching the three men in order to give her own evidence greater credibility, but it is doubtful that the jury would have reached that particular conclusion unaided.

80 Before turning to what the Crown prosecutor should have done before attacking the credit of his own witness, it is important to emphasise that the Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say: Regina v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 at [68]. That is because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused: Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at 119. That obligation is imposed on a Crown prosecutor as an incident of his or her position as a “minister of justice”: Regina v Puddick (1865) 4 Foster & Finlayson 497 at 499 [1865] EngR 61; [176 ER 662 at 663]. See also Regina v Thursfield (1838) 8 Carrington & Payne 269 at 269-270 [1837] EngR 217; [173 ER 490 at 491-401]. It is the usual practice in criminal trials that, subject what is said in the following paragraph of this judgment, the Crown accepts an obligation to call witnesses whose evidence is relevant to the Crown case when requested by the accused to do so. When doing so, the Crown prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth. The Crown’s obligation to call such witnesses has been stated more firmly in Regina v Le at [68]. (The duties of a Crown prosecutor are discussed in an address to the Student’s Union of the Inns of Court in 1955, by the then Senior Prosecuting Counsel at the Old Bailey in Great Britain, Mr Christmas Humphreys, of which a shortened version has been published under the title “The Duties and Responsibilities of Prosecuting Counsel” in [1955] Crim LR 739.)

81 In determining whether such a witness should be called by the Crown, rather than leaving it to the accused to do so, the Crown prosecutor — at least where the evidence of that witness is central to the unfolding of the Crown case — may take into account, inter alia, the credibility and truthfulness of the evidence to be given by that witness and whether in the interests of justice it should be subjected to cross-examination by the Crown: Richardson v The Queen at 119. The Crown prosecutor’s decision has been described as a lonely but also a heavy one: The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 576-577. A refusal to call a particular witness within this category may be justified only by reference to the overriding interests of justice; such occasions are likely to be rare. The unreliability of the evidence will be a sufficient basis for a refusal to call the witness only where there are identifiable circumstances which clearly establish such unreliability; it will not be enough that the prosecutor merely has a suspicion that the evidence to be given by the witness will be unreliable: Ibid at 577. In order to avoid any suggestion that a tactical advantage is sought by not calling a particular witness, it is advisable for the Crown prosecutor to confer with the witness to form an opinion as to the witness’s reliability: Regina v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at [49]–[53].

82 No basis on which the Crown prosecutor could have refused to call Mrs Zahabe has been suggested in this appeal. But the Crown's obligation to call all relevant witnesses even where their evidence does not support the Crown case does not deny the Crown prosecutor the opportunity to discredit the evidence of a Crown witness.

83 Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party — in order, for example, to establish that the witness has made a prior inconsistent statement. The word "unfavourable" means merely "not favourable", and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party: Regina v Souleyman (1996) 40 NSWLR 712 at 715; or that the unfavourable evidence was unexpected: Regina v Adam [1999] NSWCCA 189; (1999) 47 NSWLR 267 at [99]. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted: Regina v Le at [55]. However, it may range more widely: Ibid at [59], [63]. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and also to suggest that bias in favour of the appellants was the reason for the inconsistency: Ibid at [67].

84 The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown’s obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of “unfairly prejudicial” in ss 135-136 and of “unfair prejudice” in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [29], [91], [98].

85 Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act: Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996, at 5-6. (See Evidence Act, s 192(2).) Leave must also be sought to cross-examine the witness about matters "relevant only" to the witness's credibility: s 38(3); and it should be noted that the credibility of a witness includes the witness's ability to observe or remember facts about which the witness has given evidence (that is, the reliability of his evidence): Evidence Act, s 3 Dictionary. In the present case, however, leave would not have been needed pursuant to s 38(3) for that particular purpose, because the prior statement made by Mrs Zahabe said to be inconsistent with her evidence was also relevant to a fact in issue, the identification of the men involved in shooting the deceased. To that statement we will turn shortly.

86 The evidence of the Crown witness in Adam v The Queen (2001) 207 CLR 96 giving rise to the application by the Crown prosecutor in that case to cross-examine him was similarly negative identification evidence (see [14] and the more detailed description given by Gaudron J in her dissenting judgment at [44]). It was treated by the High Court as evidence unfavourable to the Crown case. Leave had been granted to cross-examine the witness in relation to the inconsistent statement he had made to the police when first interviewed, which was directly relevant to the Crown case against the person whom the witness had identified when so interviewed. It was thus not "relevant only" to the credibility of the witness (see [36]), and it was held to be admissible pursuant to s 60 to prove the truth of what a witness had said to the police when interviewed (see [38]–[39]). It was also held that the grant of leave to the Crown to cross-examine the witness was not unfair to the appellant (see [29]–[30]). That case is clear authority that evidence of the nature given by Mrs Zahabe in the present case may properly be described as unfavourable to the Crown case.

87 How then would the Crown prosecutor have fared in an application to cross-examine Mrs Zahabe based on a prior inconsistent statement? Such a statement is said to have been made in the evidence she gave before the Crime Commission on 25 October 1999, some ten months after the shooting. This evidence was placed before the judge. The Crown had given notice to the appellants that an application would be made pursuant to s 38 (see s 38(6)(a)), presumably based on that evidence, and the matter was raised briefly before Mrs Zahabe gave evidence. The judge observed that, at that stage, he did not see that Mrs Zahabe was “unfavourable”. The Crown prosecutor submitted that the evidence she had given before the Crime Commission was inconsistent with the evidence he expected her to give in the trial. If that submission was accurate, that in itself would be sufficient basis for leave to be granted pursuant to s 38 when that evidence has been given. It was agreed that the application should be raised again in the light of the evidence which was actually given.

88 The Crown prosecutor did not take the matter any further at the conclusion of Mrs Zahabe’s evidence in chief, and the judge was not asked to assess the evidence before the NSW Crime Commission in the light of the evidence she had given in the trial. It is therefore necessary for this Court to undertake the task which the judge should have been asked to undertake.

89 Mrs Zahabe was questioned for some time before the Crime Commission. She told the Commissioner she saw the three men who subsequently ran to the deceased’s motor vehicle when they were at the front of the unit block in Surry Hills, after she had seen both her husband and the deceased come out of that building. She said that, when she first saw the three men, she did not recognise them. Nor did she recognise them when they approached the deceased’s motor vehicle. She had seen their faces “briefly” at that stage. Mrs Zahabe said that she recognised four of the men subsequently shown to her by the police in an identification video — Kanaan, Mawas, El-Assaad and the man named Eddie — and she said that she did not recognise any of them as having had anything to do with what she had seen of the shooting. She added that she had also recognised Rossini on the police identification video, but she was not asked whether she had seen him that night.

90 Mrs Zahabe was asked whether she had seen the faces of all three men or just the face of one of them. Her answer was “probably all of them, yes”. She was told that the Crime Commission had evidence to suggest that two of the four men she had identified on the identification video had been the men who approached the deceased’s motor vehicle. Her reply was:

Well, I couldn’t – um – I mean, I could only give you a des ... – a description of them but, you know, whether they looked different at the time, I don’t know.

She said that she “didn’t recognise them at all”, and she repeated that statement twice. The questioning continued:

Q. What we’re now asking you is, whether you can say that the people you saw on the street were not those four people [she had recognised on the identification video], or you can’t say one way or the other? A. Well I can’t say that it – it was them or it wasn’t, I suppose, ‘cause I – that’s the only description I could give but when I saw them on the video tape they didn’t look anything like what I saw, when I saw them on the video tape.

Q. When you say they didn’t look like anything that you saw, you meant – you mean, do you, the people you saw on the video didn’t look anything like the people you saw on the street? A. On the street, yep.

91 She said that she knew what Kanaan looked like and that she was able to identify him from the identification video, but she did not recognise him as one of the people on the street that night. The evidence continued:

Q. Yes. But are you able to say that one of the people on the street that night was – was definitely not Mr Kanaan or you can’t say one way or the other? A. Can’t say one way or the other.

Q. I see. And is that true of the others, that you can’t say that Mr Mawas wasn’t there or Mr El-Assaad wasn’t there or Mr whoever Eddie is wasn’t there? A. No, I can’t say one way or the other.

92 Mrs Zahabe was asked whether she had told the police when shown the identification video that she was “sure” that Kanaan, Mawas, El-Assaad and Eddie were “not” the people who were on the street or whether she had told them “what you told us here today”. Her reply was:

“No. I told them that they weren’t. That they were not the people that were on the street.

Q. So which is different to what you’re telling us now? A. Yes. Because I was – well, I was sure then but, I mean, who – well, I’m sure that they’re not the people otherwise I would’ve recognised them, they would have stuck out, but, you know, if maybe they looked different on the night I’m – I don’t know I can only go on what I described.

93 Mrs Zahabe said that her husband had told her to tell the truth, and she denied that he had suggested to her that it would be better not to identify the people on the street. She said that no one had made that suggestion to her. Mrs Zahabe was also questioned about a number of other matters. For example, she said that only one of the three men appeared to be facing her and this was only for “probably seconds”, and that they did not have their faces directly facing her. The last evidence Mrs Zahabe gave as to her negative identification was as follows:

Q. So, you’re saying that you can’t make a positive identification either way, you can’t exclude the four persons whom the Commissioner and Mr O’Connor have named, you can’t exclude those from ... A. No, I can’t.

Q. ... being the persons there? A. No.

Q. And you can’t say for sure that it was them? A. Nah.

94 It is reasonable to discern from that evidence that Mrs Zahabe was attempting to make three interrelated points — (a) her previous negative identification of any of the appellants as being one of the three men who were involved in the shooting may have depended on the fact that the men she saw in the street “looked different” at the time (whether that meant merely depended was not investigated), (b) at the time she spoke to the police eleven days after the shooting she was sure that the men she saw on the identification video were not the men she had seen in the street, and (c) some ten months later she was unable either positively to exclude the appellants as having been there or to say for sure that it was them there.

95 If the Crown prosecutor had thought to ask Mrs Zahabe when she gave her evidence in the trial how confident she was that none of the appellants was one of the three men involved in the shooting — a permissible question in the evidence-in-chief of an identification witness — and if she had expressed confidence in her negative identification, there is no doubt that what she had said before the Crime Commission was inconsistent with that evidence. In our opinion, however, and even without such a question being answered in that way, if the s 38 application had been renewed it should have been granted in the light of the evidence she gave in the trial. There is no question here of a fishing expedition if the Crown were permitted to cross-examine. Even though a negative identification arises even where there is merely a reasonable possibility that the person identified was not the accused, her evidence in the Crime Commission was relevant to the weight to be given to the evidence Mrs Zahabe gave in the trial — as demonstrating that the apparent confidence with which her evidence in the trial was given was not wholly consistent with the evidence she gave before the Crime Commission. Cross-examination by the Crown would, in our opinion, have been justified in these circumstances.

96 The next issue is whether the Crown prosecutor’s infringement of the rule in Browne v Dunn prejudiced the appellants. The course followed by the Crown prosecutor may well have created some unfairness to Mrs Zahabe as a witness, but any such unfairness would be cured by a complaint being made against the Crown prosecutor before the appropriate professional disciplinary tribunal. It is impossible to see how such unfairness to the witness in this case could affect the fairness of the trial so far as the appellants are concerned. The issue is, rather, whether the appellants were directly prejudiced by the Crown prosecutor’s conduct (see par [77] supra).

97 Counsel for Kanaan, in his final address, firmly but fairly criticised the Crown prosecutor’s failure to challenge the evidence of Mrs Zahabe as being either untrue or mistaken — despite his claim in an affidavit filed in the appeal that he was not aware of the rule in Browne v Dunn. The judge drew attention to this criticism in his summing-up. He specifically referred to what counsel for Kanaan had said in relation to (a) the issue of Mrs Zahabe’s truthfulness, (b) the suggestion that she had got it “wrong”, and (c) by allusion to there being “no secret liaison” between the witness and the accused, the issue of bias. Counsel for Mawas, in his final address, pointed out in some detail how the evidence of Mrs Zahabe contradicted the evidence of Peter Laycock, the only other witness who knew the accused and who witnessed the shooting. His submission was based mainly on the descriptions of the clothing the men wore and whether they were of Islander appearance. The judge also drew attention to this criticism in his summing-up.

98 Did the Crown prosecutor’s failure to challenge Mrs Zahabe’s evidence prevent the defence from calling other evidence or eliciting from her in cross-examination further evidence in order to rebut the challenge that should have been made? No such evidence has been identified by the appellants. Counsel having the conduct of this issue on the appeal, when asked what evidence could have been called, replied “Who knows?”. It certainly has not been suggested that this was a case where — as in Cullen v Ampol Petroleum Ltd (Court of Appeal, 20 October 1970, unreported), discussed in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation at 19-20 — there was a great deal of specific evidence which could have been given if notice of the attack on the evidence of Mrs Zahabe had been given by the Crown prosecutor.

99 It was submitted in this appeal that, whilst defence counsel may have anticipated that the Crown prosecutor would submit to the jury that the evidence of Mrs Zahabe was mistaken (as it was conceded he was entitled to submit), it could not have been anticipated that the Crown prosecutor would allege in his final address without warning that her evidence was untruthful. That may be so, but defence counsel at the trial knew what evidence Mrs Zahabe was to give — including the negative identification evidence, as the existence of that evidence was made clear in her statement dated 6 January 2000. The trial took place in the middle of 2002. That evidence was of vital importance to their case. At the stage of their preparation for trial, defence counsel must clearly have anticipated that the Crown would either seek to cross-examine Mrs Zahabe on the basis that her evidence was untrue or submit to the jury that her evidence was mistaken.

100 Whether or not the decision not to go into evidence had already been taken at the preparation for trial stage, defence counsel should have been ready before the trial to ensure that, whichever of those courses the Crown prosecutor followed, the evidence of Mrs Zahabe was strengthened in every way possible when cross-examining her. According to the unchallenged evidence, Mrs Zahabe’s husband was an associate of the three accused and they were acquainted with her, and it is incontrovertible that, if there had been any material which would have supported her evidence as being both accurate and truthful, they should have been in a position at the trial to lead it from her in cross-examination. Despite the failure by the Crown to challenge her evidence, that material (if it were available) would still have been used to support her evidence, again because of the apparent importance of the negative identification she made. It is safe therefore to assume — from the “Who knows?” response by counsel for the appellants and from the absence of any such material in cross-examination at the trial — that there was no material which could have been either led or raised in cross-examination had the Crown prosecutor challenged Mrs Zahabe’s negative identification as the rule in Browne v Dunn required.

101 Nor is it suggested that the jury would have drawn any inferences adverse to the appellants from the Crown prosecutor’s conduct. The Crown prosecutor’s opening address made it clear to the jury that he was going to lead direct evidence establishing that Kanaan and Mawas were two of the three men involved in the shooting, from the witnesses Rossini and Peter Laycock. The jury is unlikely, therefore, to have assumed that the Crown had also adopted the evidence of Mrs Zahabe, and they would not have been surprised when the Crown prosecutor challenged her evidence of negative identification in his final address.

102 No direction was sought at the trial to cure the position which had arisen due to the Crown prosecutor’s failure to comply with the rule in Browne v Dunn. Counsel for Kanaan may have been ignorant of the existence of that rule, but it has not been suggested that counsel for the other two accused were similarly ignorant. The appellants have now identified two directions which should have been given. The primary submission is that the judge should have directed the jury to ignore the Crown’s submission that Mrs Zahabe was untruthful. In the alternative, it is said, the judge should have directed the jury that the witness had been denied the opportunity to show her mettle under cross-examination and that the defence had been denied the opportunity to ask her questions in cross-examination designed to support her credibility or to call other evidence to support her evidence.

103 If a tribunal of fact rejects evidence which has not been challenged, the rejection of that evidence may be described as unfair, or even perverse: Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426. A direction along the lines of the appellants’ primary submission may therefore be appropriate in some cases. But in other cases such a direction would be tantamount to directing the jury that it would be unfair to reject the evidence of the particular witness merely because it had not been challenged. Whether it would be unfair to reject the evidence must depend on the circumstances of the particular case. As the Crown prosecutor would have been entitled to say to the jury in the present case that the Crown did not put Mrs Zahabe forward as a witness of truth, and as there was circumstantial evidence from Rossini and direct evidence from Peter Laycock that the three accused were involved in the shooting, such a direction would not have been appropriate in this case.

104 The alternative direction now identified by the appellants, insofar as it suggests that the defence had been denied the opportunity to support Mrs Zahabe’s evidence either in cross-examination or by calling independent evidence, would ordinarily have been an appropriate one in the circumstances. However, no such direction was sought at the trial, and there is no ground of appeal directed to the failure to give one. Rule 4 of the Criminal Appeal Rules would require leave to be granted before such a ground of appeal could be argued, and leave would not be granted unless it could be demonstrated by the appellants that the omission to give such a direction led to a miscarriage of justice: see par [156] infra. To suggest that the failure to give the alternative direction in the present case gave rise to a miscarriage of justice ignores the reality of this trial, which necessarily dictated that the defence ensure that such support be given in any event. It could hardly be described as a miscarriage of justice when — for the reasons already given — it has not been shown that appellants could have cross-examined Mrs Zahabe or led evidence in order to support her evidence.

105 We do not accept that the prejudice claimed by the appellants in the present case in relation to the Crown prosecutor’s failure to comply with the rule in Browne v Dunn was of such a nature as to amount to a miscarriage of justice. Indeed, the appellants would in our view have been far worse off had Mrs Zahabe been cross-examined by the Crown, because that cross-examination would have demonstrated that the apparent confidence with which her evidence-in-chief was given was false, it would necessarily have revealed the interest in the shooting by the Crime Commission, and it would have given emphasis to the relationship she and (particularly) her husband had with the appellants and thus to the suggestion that her evidence was biased in their favour.

106 Ground 2(a) is rejected.

Ground 2(b) Negative identification directions

107 This ground asserts that the trial judge erred in his directions in respect of the evidence of Ngaari Zahabe. The complaint by the appellants that the judge failed to give specific directions based on the Crown prosecutor's failure to comply with the rule in Browne v Dunn has already been considered and rejected under Ground 2(a). Ground 2(b) is concerned with the directions which the judge gave concerning the negative identification evidence of Mrs Zahabe, that she did not recognise either Kanaan or Mawas as one of the shooters.

108 Many witnesses gave identification evidence in the trial, in the sense of giving a description of the men involved in the shooting which could identify those men to others. As the judge reminded the jury, the Crown accepted that there were no bystanders who could positively identify any of the people on the street as the three men who, on the Crown case, were involved in the shooting — Kanaan, Mawas and Gea Gea. The only exceptions were not really bystanders. They were Peter Laycock, who said that he looked out of the unit's window and saw Mawas standing on the driver's side of the deceased's motor vehicle holding a weapon and shooting, and Mrs Zahabe, who said that she saw the three men who ran to the vehicle which the deceased had entered, that she saw two of them firing guns into the vehicle, that she knew Kanaan and Mawas, and that neither of them was involved in the shooting. The particular significance of these two witnesses was that they were the only eye-witnesses who knew the accused, as the judge pointed out to the jury in the directions quoted in the next paragraph of this judgment. This meant that the issue for the jury was not whether they could describe the men they saw in a way which identified the men to others, but rather whether, knowing the accused, they recognised the men as the persons they knew. The evidence of Laycock favoured the Crown’s case that Mawas was involved in the shooting; the evidence of Mrs Zahabe favoured all three accused that none of them was involved in the shooting.

109 The judge reviewed the identification evidence of all the witnesses, including both Laycock and Mrs Zahabe in that review. Having completed the review, and having flagged for the jury that he would return later in the summing-up to aspects of the identification evidence emphasised by defence counsel in their final addresses, the judge gave what he described variously as directions, warnings or cautions as to the approach to be taken by the jury in relation to identification evidence generally. His directions related not only to the two witnesses who knew the accused but also to all witnesses who gave identification evidence. The directions he gave were in the following terms:

One thing that you may think is abundantly clear here is really none of the nineteen witnesses who gave evidence of what they saw in the street at the time gave precisely the same account. Of those nineteen, only two actually knew the accused, that is, Peter Laycock and Ngaari Zahabe. The other persons were residents either of the Addison building or nearby buildings who had no particular reason to know the accused, although obviously those who had lived in the Addison building may have from time to time seen one or other of them in the building.

The fact that they have given such diverse accounts in fact underlines the caution which counsel have mentioned to you and which I now need to give. It arises because the incident that occurred was the same; whatever happened in that street happened as a historical fact. There was one incident and only one incident, so there would be no question of people mistaking different incidents.

The warning I give you relates to identification evidence generally, that is, evidence of observers as to what they saw on a particular occasion. It always needs to be approached with a great deal of care, even though it may appear to you that the witnesses who are speaking to you are doing their best to give honest and careful evidence. It arises, or the need for care arises, as a matter of commonsense and also because it is the experience of the courts that eyewitnesses can make mistakes in what they believe or recollect that they saw. Particularly is that true where events are fast moving, frightening, unexpected, occurring in conditions of poor lighting or visibility, where trees or other objects or vehicles may partially block one’s view, or where more than one person is involved in the scene being played out, or where the witnesses are looking at a situation from different angles and distances.

Every one of these considerations is here present and each may be relevant in determining whether individual witnesses were looking at part only of the scene or the whole of it, whether they saw persons in the street only from an angle or from a position where some of their view was obscured, or indeed from the rear while they were running away down the street rather than standing still. It also affects as to whether at the time they laid down a clear recollection or memory of what happened or later reconstructed or guessed to what they saw, because often as a matter of human nature people will tend to fill in, without realising they are doing so, things where there are gaps in their memory.

The other possibility of course is that other discussions they had either with bystanders at the scene or with police or so on, may have prompted them to fill in details which they are now unable to distinguish as a true recollection, or as something which they are in fact filling in to make sense of what they saw.

I draw those matters to your attention, as I said, because the long experience of the courts is that mistakes can be made with this kind of evidence, sometimes leading to the most serious injustices. Evidence however honestly given, may turn out to be unreliable. It is equally the experience of the courts, as it is of us in our common lives, that individuals do differ in their powers of observation, in their ability to comprehend fast moving and complex facts, as they do in their powers of recollection, memory and ability to express what they believe they saw in a clear and lucid way.

So you are entitled when you look at this group of witnesses to take into account any impression they made upon you as to the clarity of their recollection, whether they were speaking from memory or from reconstruction or from being reminded by something they had previously said; and if so, as to how close to the events that they recounted was any statement made from which they refreshed their memory.

You are entitled to take into account the length of time they saw the event, their location and distance from the events, any obstruction to their line of sight, anything about the involvement or appearance of the persons involved which was likely to stand out and impress themselves on their memory, such as features of physical appearance or dress or hairstyle and the like. You are also entitled, obviously, to take into account the lighting conditions, and any effect that might have had upon the viewer’s impression, for example, of the colour of the person’s clothing from their viewing point.

Additionally, and it is important that you understand this, it is necessary to take into account whether they previously knew the people involved because if someone knows a person whose activities they are describing as having occurred on a given occasion, then their evidence is a recognition of that person rather than describing or identifying a person they have never seen before.

Obviously, again, you are entitled to take into account anything which may have emerged as to the care they took in giving a recollection, the extent of any interest or disinterest they may have in giving truthful evidence, and any impression you may have gained as to whether they were guessing or jumping to conclusions or reconstructing. As I have said, it is almost certainly the case that you cannot get a single version as to what was said as to the actual events or the description of the individuals who they may have seen in the vicinity of the RAV 4 [the deceased’s motor vehicle] or indeed in the general area before the time of the shooting or immediately afterwards.

You are entitled to look to see whether there is any common thread or consistency of account in relation to critical matters, but bearing in mind the fact that two or more persons may give the same account does not necessarily mean what they say is correct. Two or more apparently honest witnesses can be as mistaken as one. But, again, clearly you are entitled to take into account any inconsistency of that kind or common thread that you have seen emerge.

Perhaps by way of a further caution, you also need to exercise some care in relation to physical descriptions given of persons in broad terms, such as middle eastern, ethnic, dark hair, complexion, age range 20 to 30 years, sporting type clothes and so on. Obviously any number of people can fit a broad description of that kind. So it would be a serious mistake to infer that a broad description fits the description of one particular individual, one particular accused and no one else. That clearly is a matter of commonsense. If there are broad descriptions of that kind you might think that is consistent with the accused, but please do not jump to the impression that a broad description can ever fit an individual precisely. It may cover a number of people, it may end up excluding a particular person and it may be consistent with the evidence, but that is an area where you must exercise care in relation to this part of the case.

110 The appellants have submitted that those directions should have been qualified so far as they applied to Mrs Zahabe. Reliance was placed on this Court’s decision in Regina v Rose [2002] NSWCCA 455; (2002) 55 NSWLR 701. In that case, the trial took place 18 years after the death of the deceased. The accused was the husband of the deceased, and they had separated. They both lived in Armidale. The Crown case against the accused was a circumstantial one. It required the Crown to establish that (a) the deceased had visited the accused in his flat before her intended departure from Armidale on the 11.00 pm bus for Brisbane; (b) because of the deceased’s extramarital affairs, the accused had a motive to kill her; (c) there was a haematoma on the deceased’s neck, roughly overlying the vagal nerve although to one side of it, consistent with pressure having being placed on it at that place; (d) the cause of death was, according to some evidence, vagal inhibition resulting from pressure to her neck, (e) the accused had trained in karate and thus was able to identify potentially dangerous pressure points to the neck; and (f) the deceased’s spectacles were found in the accused’s residence. The Crown case asserted that the accused had killed the deceased by placing such pressure to her neck whilst she was in his flat.

111 The Crown also sought to establish that the deceased had not left Armidale on the 11.00 pm bus to Brisbane as had been her intention. This fact was relevant as narrowing the time when the deceased died. The police interviewed a number of passengers on that bus, but none had seen anyone on the bus resembling the deceased. Her body was found a month later, in the area of a bridge some distance from Armidale. The owner of a laundromat in close proximity to the place from which the 11.00 pm bus was to leave gave evidence that, at about 9.00 pm that evening, he saw in his laundromat a woman whom he subsequently described to the police in terms consistent with that person being the deceased. She had clothes still in the dryer at 9.30 pm, and she mentioned to him that she was on her way to Brisbane on the 11.00 pm bus that evening.

112 This Court held that the jury’s verdict of guilty was unreasonable and inconsistent with the evidence, and entered a judgment of acquittal on that ground. That ruling was based in part on the negative identification evidence as well as on the quality of the evidence in the Crown case and the loss of critical exhibits resulting from the delay in the trial. The Court also dealt with a ground of appeal that the trial judge had erred in giving a “Domican type direction” in relation to the negative identification evidence of the laundromat owner. That ground is directly relevant to the present appeal.

113 In relation to the negative identification evidence in Regina v Rose, this Court said that, if there was a reasonable possibility that the woman in the laundromat had been the deceased, the Crown case could not be established because the distance between the accused’s flat and the laundromat meant that she could not have been killed in the accused’s flat within the relevant period. This evidence was described as “crucial” to the defence case.

114 As the evidence of the laundromat owner was the only identification evidence given in the case, the trial judge in Rose commenced his directions on the issue of the negative identification with the following:

It is the obligation of the Crown to exclude beyond reasonable doubt any possible reasonable explanation that is inconsistent with guilt. So that you must consider the evidence of [the laundromat owner], and his evidence relating to the laundromat ... in that context. Might the account of [the laundromat owner] be true? If it be true can you be satisfied beyond reasonable doubt that all reasonable possible explanations inconsistent with guilt have been excluded? So you must carefully consider and evaluate the evidence of [the laundromat owner].

The judge then dealt with a number of matters which related to the reliability of the evidence of the laundromat owner. The evidence was that the witness had seen a photograph of the deceased in the media as being a missing person, and he had recognised her as the woman in his laundromat a few days earlier. He had given his description to the police after seeing the photograph in the media, and that description was thus subject to the displacement effect. There was also a problem with the quality of the photograph published in the media. The judge referred in his directions to the unconscious influence of the publicity on the identification the witness made; he also warned the jury of the possibility of mistake, particularly where the person identified was unknown to the witness, and the importance of the circumstances in which the identification took place, which he described as a fleeting meeting.

115 It was common ground in Regina v Rose that negative identification evidence does not fall within the terms of s 116 of the Evidence Act — which requires a trial judge to inform the jury that there is a special need for caution before accepting identification evidence, and of the reasons for that need for caution both generally and in the circumstances of the particular case. This conclusion followed from the specific terms of the definition of “identification evidence” in the s 3 Dictionary, which limit its application to an assertion by a witness that the accused was or resembles the person who committed the offence charged or was involved in its commission.

116 However, this Court (at [285]–[294], [296]) held by majority (Wood CJ at CL & Howie J, Smart AJ dissenting) that negative identification evidence was “evidence of a kind that may be unreliable”, thus falling within the terms of s 165(1)(b) of the Act — which requires a trial judge, if requested to do so and unless of opinion that there were good reasons not to do so, to warn the jury that identification evidence may be unreliable, to inform the jury of matters that may cause it to be unreliable and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The majority referred to the earlier decision of this Court in Regina v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301, in which it was held that evidence is “of a kind that may be unreliable” where it is such that its unreliability does not fall within the general experience and understanding of a jury, and where the jury may be misled in making an assessment of whether to accept it or in evaluating its worth (Howie J at [98], [101]); Hulme J (at [38]) agreed with Howie J on this point. Spigelman CJ (at [16]–[17], [27]) did not find it necessary to deal with the point, but observed that the word “kind” must be read down in some way.

117 In coming to the decision they did, the majority in Regina v Rose referred (at [288]) to the need for a fair trial for the Crown where the negative identification evidence is introduced by the defence or — as in the present case — by a witness called by the Crown in fulfilling its duty to call all relevant witnesses. They observed (at [289]):

Visual identification evidence of a particular person is no more reliable because the person being identified is not the accused. ... The concern about the use to be made of such evidence is that its inherent unreliability can be masked by the jury’s perception of the witness as generally plausible. Honesty is rarely an issue and, therefore, the jury might give more weight to the evidence than it deserves overlooking the possibility of an honest mistake. Because the evidence may, by its very nature be unreliable regardless of the honesty or general reliability of the witness, it is the kind of evidence to which some form of warning or information should attach if a jury might use it adversely to a party without giving due regard to its potential frailty. Why then should some warning not be required where the party relying upon the evidence is other than the Crown in a criminal trial?

Visual identification evidence, the majority said (at [294]), remains potentially unreliable no matter what use is made of it. They did, however, also say this (at [297]):

In the case of [identification] evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions.

118 In the alternative, the majority in Regina v Rose held (at [295]) that in any event s 165(5) — which provides that s 165 “does not affect any other power of the judge to give a warning to, or to inform, the jury” — makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter, where the judge is satisfied it is necessary to do so in the interests of justice. If the negative identification evidence did not fall within the scope of s 165(1), therefore, the trial judge had power to give a warning or to provide the jury with information although there was no requirement by s 165(1) to do so. In that case, the majority held (at [295]) that it was open to the trial judge to conclude that, in fairness to the Crown, the jury should be alerted to the general difficulties involved with the negative identification evidence given by the laundromat owner.

119 In his dissenting judgment, Smart AJ concluded (at [332]–[337]) that the law concerning the dangers of identification evidence immediately prior to the passing of the Evidence Act in 1995 was of relatively recent origin, that it had not been applied to negative (or exculpatory) identification evidence, and (at [338]–[339]) that, because of the deliberate choice of the Legislature to define “identification evidence” in limited terms, it would be anomalous to include negative identification within the terms of s 165(1). Smart AJ also said (at [340]) that, whilst the trial judge might point out weaknesses of such evidence in the particular case, it would seldom if ever be correct to give a caution or warning in relation to it, and (at [342]–[343]) that it was not correct to say that all visual identification evidence should be classed as unreliable, whether inculpatory or exculpatory. In fact, the warnings had been applied to negative identification evidence in at least one reported case well before the Evidence Act was passed: Regina v Pollitt (1990) 51 A Crim R 227 (see pars [138]–[141] infra).

120 In response to the dissent of Smart AJ, the majority said (at [293]) that the particularly persuasive nature of identification evidence as defined is met by the warning required by s 116, but there are many occasions when evidence of identification (with the same persuasive nature) will assume importance without falling within that definition, and that there could be no policy reason for excluding similarly potentially unreliable identification evidence from the need to give a warning.

121 The appellants in their written submissions assert that Regina v Rose was wrongly decided insofar as the majority concluded that s 165 applies to evidence which exculpates the accused, and that the judgment of Smart AJ (who dissented on this point) should be followed. Different views as to this submission were expressed orally by counsel for the appellants. Counsel for one appellant supported it, counsel for another did not challenge the majority opinion. However, in our opinion, the joint judgment of Wood CJ at CL and Howie J was correct, for the reasons given by them and to which reference has already been made. We agree also with the alternative conclusion by the majority that, in any event, the trial judge was entitled to give the directions he gave in fairness to the Crown, pursuant to s 165(5) of the Evidence Act. See also Regina v Ayoub [2004] NSWCCA 209 at [18].

122 Alternatively, the appellants submit that exculpatory negative identification evidence is not evidence “of a kind that may be unreliable” within the meaning of s 165(1) of the Evidence Act. The appellants argue that this follows from what is said to have been the “relatively narrow approach” adopted by this Court to the scope of that phrase. They refer to three cases.

123 The first is the decision in Regina v Stewart, referred to at par [116] supra. In that case, the witness was an accomplice of the accused who had given an undertaking to the Crown to give evidence against the accused. He was given a reduction in sentence, but faced a possible loss of that benefit if he failed to give evidence in accordance with his undertaking. We agree with the statement in Stewart that such evidence is “of a kind that may be unreliable” where it is such that its unreliability does not fall within the general experience and understanding of a jury, and where the jury may be misled in making an assessment of whether to accept it or in evaluating its worth. We do not accept that the approach taken to that phrase was a narrow one in any sense.

124 The second case on which the appellants rely is Regina v Chan [2002] NSWCCA 217; (2002) 131 A Crim R 66, where Hodgson JA said (at [35]) that, to a greater or lesser extent, all evidence may be unreliable, but what is required is evidence “of a kind” which the experience of the courts has shown may be more unreliable than the general run of evidence. He referred to two decisions of this Court which had adopted the obiter observations by Spigelman CJ in Regina v Stewart, that the word “kind” must be read down in some way (see par [116] supra). It is not without significance that, in concluding that the trial judge in Stewart had failed to inform the jury in accordance with s 165(2)(b) of the possible loss of the benefit of a reduction in sentence if the accomplice witness failed to give evidence in accordance with his undertaking to the Crown, the Chief Justice said (at [22]) that this was not a matter which would necessarily be known to the jury. There is therefore no conflict between the Chief Justice and the other two judges who adopted the definition with which agreement was stated in the previous paragraph. In our view, Regina v Chan takes the matter no further.

125 The third case on which the appellants rely is Regina v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166. In that case, the Crown case depended in part on the evidence of the accused’s son, who was eleven years old at the relevant time. He gave a statement to the police about six weeks later, but he had no independent recollection of the events he related in that statement when he gave evidence at the trial thirteen years later. His evidence was based upon the statement he had given. The accused complained on appeal, but not at the trial, that the trial judge should have given a warning pursuant to s 165 as to the possible unreliability of his evidence based on those facts. This Court (at [125]) said that a warning may be required where the courts have special knowledge or experience about the kind of evidence which has been given which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserves — that is, the approach of Howie J in Regina v Stewart, with which Hulme J agreed.

126 Accordingly, we are satisfied that negative (or exculpatory) identification evidence is “evidence of a kind that may be unreliable”, and thus falls within the meaning of s 165(1).

127 The appellants put forward a further alternative submission, that there existed good reasons for not giving the warning required by s 165(2), thereby relieving the judge of the need to comply with that requirement. Section 165(3) provides:

The judge need not comply with subsection (2) if there are good reasons for not doing so.

The appellants assert that no warning should be given in relation to evidence which favours the accused. In our opinion, it is not possible to determine in relation to any particular category of evidence that there are good reasons for not complying with the requirement to give a warning where any evidence within that category has been given. Section 165(3) is directed to the circumstances of the particular case, not to specific categories of evidence in every case.

128 In any event, we do not accept that a warning should not be given in relation to negative identification evidence simply because it favours the accused. Whilst there may be good reasons in a particular case not to give the warning in relation to some evidence within this category which may be unreliable — for example, because it was led by the Crown and its source is the accused himself and thus self-serving: see Regina v Salama [1999] NSWCCA 105 at [87] — the dangers inherent in any kind of identification evidence are such that it would be wrong to exclude warnings in relation to that category of evidence, whatever the nature of the circumstances of the case, as is now submitted by the appellants. Each case must depend on its own circumstances. To accept the proposition now put forward by the appellants in this case would, in our view, amount to overruling the decision of this Court in Regina v Rose. As we have already expressed agreement with what was said by the majority in that case, we would not be prepared to overrule it.

129 Another alternative submission (put by counsel for one of the appellants) was that, because the Crown prosecutor did not seek to challenge the evidence of Mrs Zahabe in this case, a warning should not have been given in relation to her evidence. That argument may hold good in the case where the identification evidence of the unchallenged witness is the only evidence on that issue in the case. But, for the reasons given earlier (in par [103] supra) — the Crown prosecutor would have been entitled to say to the jury in the present case that the Crown did not put Mrs Zahabe forward as a witness of truth, and as there was circumstantial evidence from Rossini and direct evidence from Peter Laycock that the three accused were involved in the shooting — it was in our view appropriate for a warning to be given in the present case.

130 The same counsel argued that, as the judge proceeded on the basis that s 165(1) applied to negative identification evidence, and as he was wrong in doing so, the exercise of his discretion to give the direction miscarried. There are two answers to that argument. First, for the reasons given in par [117] supra), negative identification evidence is evidence “of a kind that may be unreliable” and thus within s 165(1), and the judge was correct in proceeding on that basis. Secondly, if a warning as to negative identification evidence may be given in the interests of justice only within the residual power retained by s 165(5), much the same considerations arise in the exercise of that discretion, and the discretion did not therefore miscarry.

131 The appellants put forward a final alternative submission, based on what was said by the majority in Regina v Rose, that the trial judge in the present case failed to “temper” the directions which were given warning the jury about the unreliability of negative identification evidence (the relevant passage is the second passage quoted in par [117] supra). The majority did state that there was no basis for a warning that mistaken identification evidence has led to erroneous convictions. No such warning was given in the present case. The careful warning, in the sixth paragraph of the directions given by the judge quoted in par [109] supra, was merely that mistakes sometimes lead to “serious injustices”. Such a direction was, of course, required in relation to the evidence of Peter Laycock identifying Mawas as one of the shooters. If it had not been given, its absence would have been a ground of appeal. The appellants cannot have it both ways. It was nevertheless submitted that the jury may have interpreted the expression “serious injustices” as including the “wrongful acquittal of a guilty person”. We do not accept that this could reasonably have been so. If the direction had conveyed such an impression, there would have been an immediate objection. No objection was taken.

132 Beyond saying that there is no basis for a warning that mistaken identifications have led to erroneous convictions, the majority in Rose did not suggest how the warning required by s 165(2) should be tempered. The verb "temper" in this context usually means to make the statement in question more acceptable or suitable, by moderating what is said; for example, by adding a kind remark to a criticism (Collins Australian Dictionary, 5th Edn, “temper”). There is already some degree of tempering in the Evidence Act itself. Where the identification evidence favours the Crown case, s 116 requires a warning that there is a special need for caution before accepting that evidence but, where the identification evidence favours the defence, s 165(2) requires or permits (according to whether or not a request is made) only a warning that the evidence may be unreliable and of the need for caution in determining whether to accept the evidence and the weight to be given to it. What was intended by way of tempering the identification evidence warning, in our view, is that a direction should be given in relation to negative identification evidence which brings home to the jury the consequences of their finding in relation to the negative identification evidence in question.

133 What is required in relation to negative identification evidence is, therefore, that the trial judge ensures by appropriate directions that the jury understands that:

(1) as the Crown must establish beyond reasonable doubt that it was the accused who committed the offence charged or who was involved in its commission (as the case may be), the negative identification evidence raises a doubt as to that fact,

(2) the Crown must eliminate such doubt in order to succeed in establishing that fact, and

(3) if there remains a reasonable possibility that the negative identification evidence is correct, the Crown case against the accused must fail.

134 The appellants have submitted that the direction should rather be that which was discussed in Mule v The Queen [2002] WASCA 101. (This decision was not the subject of the same person’s appeal to the High Court in Mule v The Queen [2005] HCA 49.) In this case, the accused was convicted of assault occasioning actual bodily harm in a nightclub in Perth. The issue was identification. A Crown witness saw part of the incident between the assailant and his victim when the assailant swung a metal bar stool downwards towards the victim on the floor, who already had blood on him, but she did not see any contact between the stool and the victim. The witness, who had never seen the assailant before, was able to give a detailed description of him because he had faced her and grinned at the time. She did a lap of the nightclub about fifteen to twenty minutes after the incident and pointed out the accused as the assailant to a companion. A week later, she was shown a police photo-board and she again identified the accused as the assailant, notwithstanding that his photograph was more than ten years old.

135 A second witness, who had also been at the nightclub with the victim, saw him looking as if he had been hit and she also saw blood on the floor. She saw the assailant with the stool in his hand, and she saw him hit the victim with the stool. Although she said that she had seen the assailant’s face when he had the stool in his hand and before he hit the victim with it, she was unable to describe the man. Nor did she recognise him. She left the immediate scene because she did not want to be involved in any incident. She did not re-enter the nightclub to see whether she could identify the assailant as the first witness had. When she was shown the police photo-board (with the photograph of the accused included) some time after the incident, she was unable to identify the assailant on the board. She said “He’s not there”, and she agreed in cross-examination that she honestly believed that to be the case. She also agreed that she was confident about that when she said it, otherwise she would not have said it.

136 The Crown case in Mule thus contained a conflict. There was a positive identification of the accused as the assailant by one witness, and a negative identification by another witness. Both witnesses had seen the assailant’s face, although it would seem on those facts that the evidence of the first witness would have been more impressive than that of the second witness.

137 The directions given by the trial judge in relation to identification evidence were those required at common law by Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555. (Western Australia has not adopted the Commonwealth Evidence Act.) The judge also gave a standard direction on the onus of proof which included:

The presumption of innocence also means that, if the prosecution fails to bring sufficient evidence or if it leaves you with a reasonable doubt in your minds as to the guilt of the accused, then the only true verdict is not guilty.

The judge also made it clear that the Crown case depended entirely on the evidence of identification given by the first witness:

I must warn you that it would be dangerous for you to convict the accused on the basis of [the first witness’s] evidence unless, after scrutinising with great care, you are satisfied beyond reasonable doubt that her evidence of identification is truthful, accurate and correct. In other words, before you can find the accused guilty, you need to exclude the possibility that [the first witness] might have been mistaken when identifying the accused as the offender some twenty minutes after the alleged assault.

The judge referred to the evidence of the second witness only in the context of whether the jury could safely accept the evidence of the first witness.

138 On appeal, the appellant submitted that the jury should have been directed that they had to exclude the evidence of the second witness beyond reasonable doubt before they could accept the evidence of the first witness. The appellant relied on the statements made by Cummins J in the Victorian Full Court in Regina v Pollitt (1990) 51 A Crim R 227. (This matter went to the High Court: Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558; but this point was not before the High Court in that appeal.)

139 In Pollitt, the appellant had been convicted of murder. The victim’s wife saw the left-hand side of the killer’s face. On the following day, she was shown a photograph of a man other than the appellant by a relative who told her he believed that this man was her husband’s killer. She said the man in the photograph “looked like” the killer. She later gave a description of the killer which did not fit the appellant (and which may well have been influenced by the displacement effect of the photograph she had been shown), and she also identified the same person and not the appellant when shown a police photo-board with both of their photographs included. The Crown conceded that the initial identification was defective because the witness had been shown only one photograph.

140 The trial judge in Pollitt gave directions in relation to identification evidence and of the dangers inherent in such evidence. On appeal, it was submitted that no warning should have been given in relation to what is now called negative identification evidence, and that the judge had failed to explain clearly to the jury how mistaken identification evidence may be used to “establish” (scilicet raise) a reasonable doubt. No complaint had been made at the trial in relation to the directions given. On appeal, it was held by Crockett & O’Bryan JJ (at 234) that, viewed as a whole, the directions fairly and adequately dealt with the identification issue “in all its aspects” and that, although the judge did not expressly explain to the jury how mistaken identification evidence may be used to “establish” a reasonable doubt, no request for such a direction had been made by defence counsel, and in any event defence counsel had argued in his address to the jury that, if they thought it was possible that the victim’s wife was correct, they must acquit the accused. The ground of appeal was rejected.

141 Cummins J agreed with the judgment of Crockett & O’Bryan JJ, but added an observation in relation to the identification evidence. He said (at 240-241) that the warning to be given to the jury on matters of identification should be fashioned according to the circumstances of the case, and that it is the nature of the identification evidence, not its source or use, which involves the need for instruction. He continued:

On identification evidence a jury needs instruction as to its seductive character, not only its dangerous potential.

That character inheres in identification evidence regardless of which party adduces it or which party relies upon it. I consider that the relevance of the source or use of identification evidence goes not to the giving of instruction but rather to the differential standard to be applied in considering that evidence. If relied upon in proof of guilt, the standard to be applied is proof beyond reasonable doubt; whereas, there being no onus of proof upon an accused, it is sufficient in exculpation if upon the evidence adduced a reasonable possibility exists or arises consistent with the innocence of the accused.

142 In Mule, Miller J, with whose judgment Wallwork J agreed, held (at [39]–[41]) that the trial judge had overlooked the need to stress to the jury that there was negative identification evidence from the second witness, and that it was necessary for the judge to remind the jury that, whilst the only direct evidence of positive identification was that of the first witness, there was evidence of negative identification from the second witness. He said that, if the jury accepted the evidence of the second witness, or if they could not exclude it beyond reasonable doubt at the end of their deliberations, they would clearly be unable to convict the accused. If, however, the jury was able to exclude beyond reasonable doubt the evidence of the second witness, it would be relevant then to consider carefully the evidence of the first witness, taking account of both the general and specific warnings in relation to it. One of those specific warnings should have incorporated the fact that the second witness had made a negative identification. The appeal was therefore upheld.

143 Miller J therefore effectively accepted (at [40]) the submission made by the appellant that the jury had to exclude the negative identification evidence beyond reasonable doubt before they could accept the positive evidence of identification (see par [138] supra). The dissenting judgment of Murray J rejected that submission, saying (at [12]) that such a submission confused two of the jury’s different tasks — one task is to decide what evidence they accepted and the other task is to consider whether the evidence they do accept establishes guilt beyond reasonable doubt.

144 We would add that the direction sought in that case, like the direction belatedly sought in the present case, is not an easy concept for the jury to follow, and in our view it would be more likely to confuse rather than assist the jury. In our opinion, as stated earlier (at par [133] supra), a trial judge must at all times emphasise that the jury has to be satisfied beyond reasonable doubt by the Crown that it was the accused who committed the crime charged. Where an issue arises on the evidence as to whether some other person may have committed that crime, the judge should make it clear to the jury that they cannot be satisfied by the Crown beyond reasonable doubt that the crime was committed by the accused if there remains a reasonable possibility that the crime was committed by someone else. An appropriate direction would be that the Crown must remove or eliminate any such possibility, as well as satisfy the jury, on the evidence on which it relies, that beyond reasonable doubt the accused committed the offence.

145 This Court recently stated that, when an alibi is raised, an appropriate direction to the jury would be that the Crown must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time, that the Crown cannot do so if there is any reasonable possibility that he was somewhere else at that time as asserted by the alibi evidence, and that the Crown must therefore remove or eliminate any reasonable possibility that the accused was at that other place at the relevant time and also persuade the jury, on the evidence on which the Crown relies, that beyond reasonable doubt he was at the scene of the crime at that time: Regina v Kanaan at [134]–[135]. A similar direction is appropriate in cases where self-defence or provocation is raised, where the onus of proof remains on the Crown.

146 The suggestion of an appropriate direction in each of those situations does not mean that a summing-up is necessarily defective if it does not give such a direction in those terms. However, in our view such a direction would eradicate the possibility of any error in relation to the onus of proof on the issues which arise in those situations. There is no general requirement for a trial judge to use this formulation as part of the directions on the onus or standard of proof whatever may be the nature of the Crown case or of the evidence tending to exculpate the accused; neither Mule v The Queen nor Regina v Pollitt should be considered as authorities requiring a special form of direction to be given in such cases, provided that the judge makes it clear to the jury that there cannot be proof beyond reasonable doubt if there remains a reasonable possibility that the accused is not guilty: Regina v Ayoub at [9].

147 One other relevant issue arose in Mule v The Queen to which reference should be made. Miller J also said (at [35]) that it had been rightly conceded by counsel for the appellant that no warning attaches to evidence of a “negative identification” such as that given by the second witness, as the dangers addressed in Domican v The Queen are those inherent in “positive” identifications, and they do not attach to the negative identification given by the second witness. He cited the judgment of McHugh J in Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [54] as making it “clear” that no warning attaches to negative identification evidence. In that paragraph of his judgment, McHugh J does indeed emphasise the dangers of “positive” identification evidence, but not in order to distinguish such evidence from negative identification evidence. No issue of negative identification evidence arose in Festa. The issue in that case, as McHugh J makes it clear at [56], was whether the dangers of positive identification evidence (of a witness at the scene who was able to recognise the accused as the offender) were also relevant to what was called “circumstantial identification evidence” (of a witness at the scene who was able only to describe the general appearance or some general characteristic of the offender). See also Gleeson CJ at [4]–[5], Kirby J at [164]–[165], Hayne J at [217], and Callinan J at [251]–[253]. Counsel who argued this ground on behalf of the appellants conceded that this paragraph in Festa did not assist the appellants.

148 It is respectfully suggested that Miller J has misread what McHugh J said in Festa and has overlooked what Cummins J said in Pollitt. We have already expressed agreement with this Court’s decision in Regina v Rose, which held that visual identification evidence is potentially unreliable no matter what use is made of it and whether it is an identification of the accused or any other person. It is clear that Cummins J was of the same opinion.

149 Accordingly, the appellants’ submission that the direction which should have been given was the direction discussed in Mule v The Queen is rejected. We turn now to consider whether the directions given by the trial judge in the present case brought home to the jury the consequences of their finding in relation to the negative identification evidence in question (see pars [132]–[133] supra).

150 The judge gave complete directions as to the Crown's onus and burden of proof at the outset of the summing-up. Included in those directions was the following:

If at the end of the day you have a reasonable doubt about the guilt of any one of the accused on trial here, then you must acquit him of the offence of murder. The Crown, as I said, from beginning to end in this trial bears the burden of proving the guilt of them individually beyond reasonable doubt.

When dealing with the matters raised by the accused concerning the identification evidence of the three shooters, the judge said:

That it is a matter to you to determine having regard to the special caution that I need to emphasise in relation to this evidence, and also having regard of course to the requirement for the Crown to remove reasonable doubt from this case as to whether the shooters were in fact Kanaan, Mawas and Gea Gea.

The reference to “special caution” there was directly related to the identification evidence on which the Crown relied.

151 The judge specifically directed the jury that the following argument put by counsel for Mawas concerning the Crown’s burden of proof was correct:

[If] you are left in a position where you have a reasonable doubt, you have no alternative other than to acquit. It was his submission that the evidence in this case did not meet that standard and you would in fact be left in a position where you probably could not be satisfied as to who, if any of a number of people, were responsible for Karam’s death.

The judge later repeated the argument put forward by counsel for Mawas, that the evidence of Mrs Zahabe “raises a doubt ... as to whether the shooters were someone other than ... Kanaan, Mawas and Gea Gea”. And again, when reminding the jury of the arguments put forward by counsel for Kanaan on the onus of proof at the very end of the summing-up, the judge said:

[Counsel] pointed out to you if you are unable to decide where the truth lies in this case, if you have a reasonable doubt about the guilt of Mr Kanaan, as be the case in relation to all other accused, then you must find them not guilty. So, if you have a reasonable doubt, then obviously your verdicts must be that of not guilty.

In each case, the judge made it clear that those arguments were correct.

152 The judge did not expressly direct the jury that the Crown had to eliminate any reasonable possibility that the shooters were the men whom Mrs Zahabe said that she saw. However, we are satisfied that the jury could not have been in any doubt from those directions that the Crown bore such a burden of proof. The absence of any complaint at the trial concerning the directions given demonstrates that such must have been the impression conveyed. Ground 2(b) is rejected in relation to the matters considered so far.

153 The appellants also submitted that the warning in relation to the positive identification evidence given by Peter Laycock and the negative identification given by Mrs Zahabe should not have been “lumped” or “rolled-up” together. There was no such complaint made at the trial. The only specific issue taken on appeal as to how they should have differed was the reference to “serious injustices”, which has already been discussed (see par [131] supra).

154 It may well be preferable in a case such as the present for the different types of warning relevant to each category to be emphasised — that is, a warning that there is a special need for caution in relation to the evidence on which the Crown relies and a warning that the evidence on which the accused relies may be unreliable — but it is difficult to see any benefit to an accused in such a case in having all of the various reasons for the warnings to be given twice, once for the positive identification evidence and again for the negative identification evidence. In some cases, of course, it may be more convenient to set out separately the reasons for warnings for each category of identification evidence. It depends on the circumstances of each case. The important thing in every case is for the judge to ensure that the jury understand the different consequences of their finding in relation to negative identification evidence in question. (See pars [132]–[133] supra.)

155 No request was made in the trial for such specific emphasis or separate treatment to be given, but we are satisfied that the jury would not have been confused in this summing-up. If leave were granted to the appellants pursuant to r 4 of the Criminal Appeal Rules to rely on Ground 2(b), we would reject the ground of appeal.

156 Where no objection was taken at the trial to the directions given or omitted to be given now objected to on appeal, the ground of appeal may not be allowed without leave, and leave will not be granted pursuant to r 4 unless the direction given or the absence of a direction led to a miscarriage of justice: Regina v Abusafiah (1991) 24 NSWLR 531 at 536; Regina v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [20]–[21]; Regina v Kanaan at [99]–[101], [105]. We are not satisfied that there was any miscarriage of justice as a result of those directions or of the absence of the direction now put forward (see pars [134] et seq, supra).

157 Leave to the appellants to rely on Ground 2(b) is refused.

Grounds 3 & 5 — “Accomplice” directions

158 The third ground of appeal, filed jointly by all three appellants, asserts that the trial judge failed to direct the jury adequately, and erred in his directions, in relation to “Rossini” and the “Laycock” brothers. The directions challenged relate to the warnings given as to the reliability of their evidence. The fifth ground of appeal, filed by the appellant El-Assaad, asserts that the trial judge erred in directing the jury on the effect of the undertakings by Rossini and the Laycocks. These two grounds may conveniently be considered together.

159 Section 165(1)(d) of the Evidence Act identifies as evidence “that may be unreliable” the evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. Subsections (2) and (5) of s 165 require the judge if so requested, or permits the judge in the interests of justice (see par [118] supra), to warn the jury that the evidence may be unreliable, to inform the jury of the matters that may cause it to be unreliable and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. Before the Evidence Act, these were usually described as accomplice warnings, but it has been held that it is preferable that the word “accomplice” not be used in the warning given as it may inadvertently convey to the jury the impression that the judge accepts that the witness is an accomplice of the accused, and thus that the accused is guilty: Regina v Stewart at [21], [126]. It will nevertheless be convenient at times in this judgment to refer to an accomplice warning as shorthand for a warning that the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial may be unreliable.

160 The Crown case as put to the jury was one of joint criminal enterprise, in which all three accused were involved — Kanaan and Mawas (with Gea Gea) as the shooters, and El-Assaad by making the telephone call to warn the others that the deceased was on his way down to his vehicle in which he was then shot. In accordance with Mohan v The Queen [1966] UKPC 3; [1967] 2 AC 187 at 194-195; Regina v Clough (1992) 28 NSWLR 396 at 398-399 and Regina v Phan [2001] NSWCCA 29; (2001) 53 NSWLR 480 at [65], the judge explained to the jury that, with sixteen gunshot entries in the deceased’s body, it was virtually impossible to determine which of the shots actually caused the death of the deceased and thus to identify the particular shooter directly responsible for his murder. He identified the Crown case as being that each of the three shooters was present with the same intention to kill the deceased and that each of them assisted the others to carry out the murder by firing their weapons; El-Assaad’s participation in that joint criminal enterprise, by assisting the shooters with the warning, would make him an accessory before the fact and just as criminally responsible for the murder as those who shot the deceased.

161 The Crown case, as stated earlier, relied principally on the evidence of Rossini and to a lesser extent on the evidence of Rossini’s cousins, Peter and Oscar Laycock. Each had been arrested after the shooting on drug supply charges which were withdrawn after they signed undertakings to give evidence of their knowledge of various criminal activities, including this particular shooting. Each gave an induced statement to the police as to the evidence they would give (that is, induced by the promise not to use the statement against him). In return, each was given an undertaking by the Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him.

162 The fundamental assumption in such an arrangement is that the induced statement is understood by the Crown to be the truth, so that, if the evidence given in court by a particular witness does not adhere to what was said in that witness’s induced statement to the police, the Attorney General is released from his or her undertaking not to use the evidence given in court by that particular witness against him or her.

163 Although such an arrangement differs to some extent from an arrangement whereby a witness is granted an indemnity against prosecution, with a similar condition that the evidence the witness gives is the truth, there is the same prospect that the evidence given by such a witness may be unreliable. The arrangement whereby a witness is given an indemnity has been discussed in a number of cases in this Court: see Regina v Booth [1982] 2 NSWLR 847 at 849-851; Regina v Checconi (1988) 34 A Crim R 160 at 170-171; Regina v Chai (1992) 27 NSWLR 153 at 177-181; Regina v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at [40]–[52]. What was said in those cases is relevant to the undertakings given by the Attorney General in the present case.

164 The first and second bases on which such evidence may be unreliable are unrelated to any indemnity or undertaking given to the witness. The first basis applies to any witness involved in criminal activity — either the same criminal activity as the accused or other criminal activity. That involvement is directly relevant to the credit of such a witness, and its relevance to that issue would ordinarily be a matter of which jurors will be aware.

165 The second basis on which the evidence may be unreliable is where the witness was involved in the same criminal activity as the accused. For convenience, we assume in this and the next paragraph that the witness is a male. There is a motive for such a witness to construct a false version of the events in order to justify his own behaviour or to shift the blame from himself to others, by downplaying his own role and by either playing up the role of the accused or by blaming an innocent party (such as the accused) for the crime which was committed. In such a case, having given that false version to the police in order to extricate himself from criminal responsibility or to lessen the extent of his own responsibility, the witness has effectively locked himself into that version, and may feel bound, as a matter of self-respect, to repeat that false version when he gives evidence. The evidence of such a witness, moreover, is likely to have a seeming plausibility because of his detailed knowledge of the circumstances in which the crime was committed, and this plausibility may add undeserved weight to what he says about the part played by the accused.

166 The third basis on which the evidence may be unreliable is directly relevant to the indemnity or undertaking given to the witness. It is a matter less likely to be within the general experience and understanding of jurors than the last basis. The consequence of such an indemnity or undertaking is that, in return for giving evidence, the witness obtains the benefit or advantage of evading a prosecution in relation to his own criminal activity. The nature of that benefit to the witness, the consequence to the witness if he does not adhere to the (induced) statement he gave to the police, and the effect which such a consequence may have on the truthfulness of the evidence given by the witness are not matters within the general experience and understanding of jurors and thus will ordinarily require mention in the warning given: Regina v Stewart at [38], [98], applying Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 323-324 (Brennan J) and following Regina v Baartman [2000] NSWCCA 298 at [62]. Not only may the witness feel bound, as a matter of self-respect, to repeat the false version given to the police when he gives evidence, he will necessarily feel bound to do so, as a matter of self-protection, in order to avoid prosecution for his own criminal activity.

167 The judge directed the jury in the present case that they could not find the accused guilty unless they were satisfied beyond reasonable doubt that Rossini was telling the truth as to the essential elements of murder. The judge described Rossini and the two Laycocks as the “key” Crown witnesses, and he said that their evidence — particularly that of Rossini — was “critical” to a decision that the accused were guilty of murder. He gave the s 165 warning in the following terms:

So you have heard much already from counsel concerning the care which you need to apply to the evidence of people in their position, that is, people who have given evidence at a time after they have been arrested or under investigation for serious criminal offences, who have been given undertakings or have been given a freedom from prosecution, and as a consequence or following that, have given evidence here.

I need to give you my own warning because this is of fundamental importance to this case: their evidence does require the most careful scrutiny because of those circumstances, that is the undertakings they have and the fact that serious charges have been dropped and following that, they have given evidence in this trial. Additionally, it arises in the circumstances that, on their account they may well, arguably, have been accessories after the fact so far as they may have assisted in disposing of evidence or concealing initially what had happened in relation to this offence.

So there is the circumstance that each has an interest to serve in relation to their own prior criminality and possibly, in relation to this case, if what they are saying is true and if they did anything to assist the accused after the event.

168 The judge went on to discuss a further reason for the jury to exercise care with the evidence of these three witnesses, arising from the lies they had told from time to time, or from the inconsistent accounts they had given. The judge continued:

Hence the need for the caution, and the great care which you must apply when you come to assess their evidence. It is important that you look at their evidence as to whether it possesses or lacks credibility, to examine any inconsistency or contradictions or admitted lies, to look at any explanations or reasons as to why they may have told a lie at a particular time, or given an inconsistent version on another occasion. You should also look to see to what extent there is any independent support for them.

The judge told the jury that this was an area in which they were expected to apply their commonsense and understanding that people may, from time to time, have good reasons to tell lies from which they later retreat and give a different version. He continued:

The question of cross-support between [the three witnesses] obviously is relevant so far as it might exist. There is no absolute rule of law now that the evidence of one witness who has some possible involvement in criminality cannot be supported by the evidence of another. However, as a matter of commonsense and experience, you must take into account where you have people who are associated in matters of criminality, or have some associations with occasions of this kind, that is a shooting, the need to be very careful with each of them. Particularly that is so where they are related through families and where each has a possible interest in escaping prosecution and imprisonment for prior offences, or for offences, after the shooting, and in protecting close relatives from a similar fate. So you must take into account, so far as their accounts are parallel or substantially parallel, the possibility that they have colluded or that one has drawn assistance from what the other has said. Obviously, similarly of course you need to take into account any contradictions, to see whether one or other of them is telling a lie.

169 The judge repeated that the evidence of these three witnesses was critical to the Crown case, he then made some further general remarks concerning the credibility of witnesses, and he concluded this part of his summing-up in these terms:

I do remind you before I depart from this situation, and I think I previously mentioned this, that the various undertakings which [the three witnesses] have been given are only good if they tell the truth here. If they are telling lies here, then those undertakings disappear and they would be liable to be prosecuted for anything which they may have disclosed in their evidence to you.

That is a matter you can take into account when you come to consider that matter and when you come to consider whether they have satisfied you that they are here telling the truth, as they said that they did, or are simply telling you a pack of lies, or alternatively, whether you reach the view that their accounts are so inconsistent and unreliable that you, the jury, cannot say where the truth lies, because it is a matter for you to be satisfied. It is a matter for you to be satisfied of the substance of what they say, in relation to the essential elements.

170 The jury left for an adjournment following those directions. Before the court itself adjourned, complaint was made by counsel for El-Assaad that it was not for the jury to determine whether the three witnesses were telling lies, and that the directions which had been given had “created a bit of a sideshow”. We return to more specific complaints of this nature later, at pars [188] et seq, infra. Counsel for Kanaan suggested that the impression conveyed to the jury by those directions was that the three witnesses were in so much trouble if they told lies that they were telling the truth. We return to this complaint later, at par [195] infra.

171 Later in the summing-up, when the judge was dealing with the evidence of Rossini that Kanaan had later told him that he shot the deceased whilst he and the deceased were smiling at each other, and that Gea Gea had shot the deceased a couple of times before running off, he directed the jury:

Again, these being alleged admissions of which Rossini, who is a person with an undertaking and so on, gave evidence of, you have to subject that evidence to the very greatest of care. It may be unreliable because of his position and you must subject it to the closest scrutiny.

172 No other complaints were made as to any inadequacy of the warnings which had been given. In particular, no complaint was made at the trial in relation to the matters now raised by Ground 3 or (except for one matter) by Ground 5.

173 On appeal, it is argued that Rossini, on his own evidence that he participated in the discussions leading up to the murder and in the various activities earlier described (in pars [14]–[16] supra), was himself a party to the joint criminal enterprise as an accessory (or a principal in the second degree), and he was therefore guilty of murder. Rossini conceded in cross-examination that he knew that Karam was to be killed, that he was a party to the planning, but he denied that he was a party to the shooting. He agreed that he had delayed Karam’s entry into the apartment to enable the shooters to leave before he arrived, although he denied that he knew that they would be taking up their positions. It was submitted that Rossini was more heavily involved in the killing than was El-Assaad.

174 The appellants argue that Peter Laycock, on Rossini’s evidence, had attended a meeting at which the proposed murder was discussed (this was denied by Laycock), and thus could also have been a party to the joint criminal enterprise. It was not suggested that there was any other evidence of involvement by the Laycocks in the joint criminal enterprise to murder the deceased. (Their action in carrying the firearms obtained for the deceased down to his motor vehicle whilst the deceased was still in the apartment — see par [16] supra — had nothing to do with that enterprise.) The appellants assert that, in any event, the Laycock brothers were, on their own evidence, accessories after the fact by assisting in disposing of the evidence of the murder, and thus that an accomplice warning was appropriate. Moreover, the appellants say, the Laycocks stood in a special relationship to Rossini: he was their cousin and effectively their employer.

175 The warning which the judge gave, it is therefore argued, far underestimated the role played by Rossini, and hence the potential jeopardy in which he stood when giving his undertaking to the Crown and in which he would stand once more if he did not give evidence in accordance with the statements he had made to the police. The appellants submitted that, when examining the extent of the jeopardy in which Rossini believed that he would stand in that event, the subjective belief he held as to the extent of the benefit he had been given is the relevant issue, not the objective legal interpretation of the undertaking which was given. In so far as such an examination does have to be made in the particular case — a matter to which we return later — we agree with that submission. In the present case, counsel for Mawas obtained the following answers from Rossini:

Q: You have your own future as a motive for assisting in the prosecution of Mr Mawas, haven’t you? A: No, sir.

Q: It is the immunity that you got, immunity from charges, serious charges of conspiracy to supply commercial quantities of cocaine, correct? A: Yes, sir.

Q: Immunity from a charge of murder? A: From everything that happened, sir, yes.

176 There is no doubt that, at the trial, counsel for the accused cross-examined Rossini in an endeavour to establish that he played a greater part in the lead-up to the killing than he was prepared to admit. The Crown in its final address acknowledged the firmness of the cross-examination of Rossini directed to showing that he was himself involved in the plot to kill Karam and had substituted the accused for whoever had done the shooting. The judge referred to this material in his summing-up. In their addresses, counsel attacked Rossini’s evidence mainly in relation to his credit (the changes made in his evidence and its inconsistencies with the evidence of the Laycock brothers). Two of them gave attention to the effect of the undertakings given to the witnesses by the Attorney General as a motive to tell lies. The relevant references follow.

177 Counsel for El-Assaad described Rossini and the two Laycocks as falling within “a very special class of witness” about whose evidence the jury must exercise care. In relation to Rossini, counsel pointed out how well he had done for himself: (a) in avoiding being charged for his own involvement in the murder, (b) in having the drug charges against him withdrawn, having spent only five months in custody when he had been “staring down the barrel of pretty serious gaol time”, and (c) in having help offered by the Crime Commission with “Corrective Services, the police, the DPP, the Attorney General, whatever”. Counsel emphasised that Rossini and the two Laycocks were not on trial; instead, they had received their benefits from the Crown in order to secure the conviction of those who were on trial.

178 Counsel for Mawas had more to say to the jury on the subject. Rossini, he said, had a great deal to gain by assisting the Crown to establish its case; he had been given “an immunity on all his criminal conduct, whatsoever”. Rossini had agreed with him that it was “a pretty good deal”. Counsel pointed out to the jury that Rossini had to “do his best” because, if it were established that he was lying, “he might at least end up on a charge of perjury”. Counsel did not suggest that Rossini might be charged with murder. Counsel also told the jury that, effectively, Rossini’s motive was to ensure that he remained “free from the process of prosecution and long-term imprisonment for his involvement in major crime activities”. In its context, that submission appears to have referred to Rossini’s involvement in drugs. Counsel went on to say:

Look at the motive he has to lie. He is a man on his own confession who has not one but two undertakings given to him by the Attorney General on charges of conspiracy, supply cocaine, which were withdrawn in June of 1999. He has never been prosecuted in respect of any of the serious criminal activity that he has confessed to being involved in and charges have been withdrawn on the basis that he actively assisted the prosecution and give truthful evidence in this case.

He has, therefore, you may think very fine motivation indeed to be as persuasive as possible, not only to the police but to you, too. The question is, is he telling the truth or not?

179 Rossini had agreed with counsel that he thought the Crime Commission might help him if he could persuade them of his importance. Counsel continued:

Here was a career criminal with a lot under his belt, and he had to persuade the authorities that he had a version to get the bonus for him. The trophy was freedom from gaol for a long, long, long, long time. That in the mind of a 25 year-old, slick, quick, intelligent criminal, was the trophy held out to him and he seized it with both hands and ran with it.

And, later in his address:

Mr Rossini, on the basis of his evidence, managed to persuade the authorities to give him, as he put it somewhat glibly, an immunity from everything that happened. “I’ve got immunity from serious charges, conspiracy to supply commercial quantities of cocaine”. And he said — that was my question to him, and he said “I’ve got immunity from everything that happened”. Yes, he said, it was a pretty good deal.

180 Counsel for Kanaan, who addressed last, did not deal with this subject any further, but he did refer somewhat tangentially to Rossini’s motive to orchestrate the demise of Danny Karam (the deceased) through his (Karam’s) enemies by whom he was rewarded for having increased their share of the drug market.

181 Counsel for Mawas spent a little more time on developing that motive. He referred to a “missing shooter” whom Rossini was protecting. He reminded the jury of Rossini’s evidence that, on the day of the shooting just as the deceased was arriving at the apartment, weapons had been handed out to all three appellants and to Gea Gea; El-Assaad had selected a 0.357 calibre revolver and all four men had left the apartment; El-Assaad had then returned before the shooting (see par [16] supra). Yet the ballistic evidence established that a 0.357 weapon (possibly a revolver) had been used in the killing (see par [17] supra), in which El-Assaad had not taken part. No one had suggested that anyone else had such a weapon. Who then, counsel asked, had used that weapon to kill the deceased? And why did Rossini not name him? Counsel suggested that Rossini’s evidence could not be trusted because he was covering up for the “missing shooter”, or the people who were actually responsible for killing Danny Karam.

182 Section 165(2)(b) requires the warning to inform the jury of matters which may cause the evidence to be unreliable. The purpose of doing so is to provide the jurors with knowledge of matters not within their general experience and understanding (see par [166] supra). Those matters need be stated only with such detail as is required to achieve that purpose. A trial judge in any criminal case is required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury; the conduct of the case necessarily bears on the extent to which the judge is bound to comment on and discuss the evidence: Domican v The Queen at 561. The High Court in that case (at 561-562) went on to say, however, that because the seductive effect of identification evidence had so frequently led to proven miscarriages of justice special rules apply in relation to that evidence. In the case where the issue of identification plays any significant part of the Crown case, the judge must isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence — whatever the defence raised and however the case is conducted.

183 Whereas it is necessary pursuant to s 116 for the judge to go beyond how the case has been conducted and to refer to every matter of significance which may reasonably be regarded as undermining the reliability of identification evidence (unless the identification is in the end not in dispute: see Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [19]–[22], [53]), the warning required pursuant to s 165 need be given only if requested by a party. Provided that a general warning is given to the extent now required by s 165(2), in the usual case where the evidence may be unreliable (that is, other than identification evidence) the necessary content of that warning will be dictated by the evidence and the addresses. Accomplice evidence does not have the seductive effect of identification evidence, and the present case does not, therefore, fall outside the usual case.

184 Most of the relevant parts of the summing-up in the present case have already been quoted (at pars [167]–[169] supra). Briefly, the judge referred to the undertakings given by the Attorney General and the fact that “serious” charges had been dropped. He suggested that “they” may arguably have been accessories after the fact, but this suggestion appears from its context to relate to the Laycock brothers. The judge told the jury that the undertakings given by the Attorney General would disappear for the particular witness if that witness told lies, and that there would be a prosecution for anything which had been disclosed in the evidence such a witness had given in the trial. In addition, the judge directed the jury that it was for them to determine whether they accepted the truth of what had been said by Rossini (in particular) and by the Laycock brothers, in the light of all the evidence and “in the light of the remarks put to you in addresses”.

185 Even apart from the direction to consider the evidence in the light of the addresses of counsel, the specific directions the judge gave in this case went as far as counsel had in relation to the effect of the undertakings given and the consequences to any witness to whom such an undertaking had been given if his evidence departed from what he had told the police. Although counsel for Mawas did refer to Rossini’s subjective but erroneous belief that he was protected against even a charge of murder (see par [175] supra), the reference was made by him in connection with the “missing shooter” argument (see par [181] supra), and no suggestion was made by him to the jury that it was relevant to any other issue in the case.

186 It was therefore unnecessary for the judge to examine those subjective beliefs as is now argued on appeal. The judge was not asked to add to what he had said, and the absence of complaint indicates that the directions were not considered to be inadequate by counsel at the trial. The complaints made just after those directions were given (see par [170] supra) did not raise the issues now raised in the appeal, by different counsel who had not appeared at the trial.

187 We are satisfied that the directions given adequately warned the jury as to the need for caution in relation to Rossini’s evidence because it may be unreliable. No objection having been taken at the trial, r 4 applies. We are not satisfied that there has been any miscarriage of justice because the second thoughts now put forward by counsel on appeal were not conveyed to the jury by their predecessors at the trial.

188 Specific objection is now taken by El-Assaad (in which Mawas has joined) that the judge erred in the directions he gave as to the effect of the undertakings given to Rossini and the Laycock brothers. This objection is the subject of Ground 5. The passage to which the objection is taken is set out in par [169] supra, but which is repeated for convenience:

I do remind you before I depart from this situation, and I think I previously mentioned this, that the various undertakings which [the three witnesses] have been given are only good if they tell the truth here. If they are telling lies here, then those undertakings disappear and they would be liable to be prosecuted for anything which they may have disclosed in their evidence to you.

189 Reference was also made (at par [170] supra) to the complaint made by counsel for El-Assaad during the summing-up shortly after the direction was given. The following discussion took place:

COUNSEL FOR EL-ASSAAD: In relation to that portion your Honour said to the jury about Mr Rossini and the two Laycocks, your Honour, that their indemnities for prosecution are only valid if they come to court to tell the truth and if they do not tell the truth and are found to be lying, that they could be prosecuted in the event, if they are proved to be lying.

Your Honour, that in some way doesn’t reverse the onus but the jury aren’t here to make a decision about whether something is definitely a lie, or to come back with a verdict that would then result in anybody being prosecuted for not telling the truth. It is not as if, I know your Honour at the end of it said that they may be unreliable and inconsistencies [sic], but you cannot say where the truth lies. With respect, that is the safer way to describe the effect of their evidence.

HIS HONOUR: I put that to the jury, the fact the undertakings are conditional.

COUNSEL: How is anybody going to establish on the face that they are absolutely telling a lie.

HIS HONOUR: They can be prosecuted if they are proved to have been telling lies. This jury does not have to decide that. If the Crown at the end of this trial or any other trial where people are giving evidence and have undertakings, reaches the conclusion that what they said is demonstrably untrue, they can be prosecuted. That has happened from time to time.

COUNSEL: It has from time to time.

HIS HONOUR: The relevance of it, really, is that the jury need to understand these people have undertakings, but they’re not unlimited or guarantees that they will walk free. If it is proved they tell lies, then the undertakings are no good.

COUNSEL: Proof by who [sic]? If Mr Rossini tells a lie about Mr El-Assaad, the only way they can prove that is in fact a lie, for a prosecution to then depend on Mr El-Assaad to give the contrary version.

HIS HONOUR: Not necessarily.

COUNSEL: With respect, I think there is the idea these people can be prosecuted, proof of telling lies, the way your Honour expressed, has created a bit of a side-show.

HIS HONOUR: I do not agree with that. I made it perfectly plain; that is a fact the jury has to take into account. I made it perfectly plain and I think I gave a pretty clear direction. The point is noted. I do not propose to withdraw it.

190 This complaint made on behalf of El-Assaad at the trial appears to have been, effectively, that it could not be established by the accused in the trial that Rossini and the Laycock brothers were telling lies without the accused giving evidence. That is how the judge interpreted it. Nothing said by him could have been interpreted as suggesting that it was for the accused to establish that these three witnesses were lying; it was made very clear to the jury that the onus was on the Crown to establish that these three witnesses were telling the truth. If our interpretation of the complaint is erroneous, then the complaint is meaningless. What the judge did say was that the benefit obtained by those witnesses from the undertakings given by the Attorney General would be lost if they did not tell the truth. Those are the very words used in the undertakings (which were in evidence). The judge correctly declined to withdraw the directions he had given.

191 In their written submissions on appeal, counsel for El-Assaad has identified five further complaints, and counsel for Mawas one further complaint, in relation to the direction given:

(a) The effect of the directions given “could only have been to unfairly buttress the Crown case”.

(b) When added to a statement subsequently made by the judge when discussing the general understanding about lies, the inference raised by the direction was that what was now being said was the truth.

(c) The jury were not and could not have been aware that the witnesses, particularly Rossini, had been excused their criminality in a much wider sphere than the evidence disclosed at the trial.

(d) The jury were very likely to have reasoned that the Crown would not have called the witnesses unless it was satisfied that the version that they would give to the jury was in fact true.

(e) The jury should have been advised that adverse consequences were only likely to flow to the witnesses if they did not give evidence in accordance with their statements to establish the Crown case (whether that was true or not).

(f) (This is the complaint on behalf of Mawas) The jury should have been directed that, if the witnesses failed to give evidence against the accused in accordance with their undertakings, they faced a “real danger” of prosecution for their involvement in these offences and a “real danger” that the prosecutions against them, which had been dropped, would be proceeded with.

None of complaints (a) to (e) was made on behalf of El-Assaad at the trial, but complaint (d) was sufficiently made on behalf of Kanaan. Complaint (f) was not made by anyone at the trial. In relation to complaint (d), therefore, r 4 does not apply, but it does apply to the remainder of these complaints.

192 Complaint (a) is an immoderate overstatement (for which counsel appearing for El-Assaad on the appeal, who did not sign the written submissions, is not responsible). The issue is not the intention with which the directions were given; it is the interpretation the jury would have placed on them and whether that interpretation was unfair to the accused. That issue is addressed in the following paragraphs.

193 Complaint (b) was that the direction gave rise to the inference that the evidence given by the three Crown witnesses was the truth. The direction must, according to the submissions made, be seen in the light of the subsequent statement of the judge:

Again this is an area where you are expected to apply your common sense and understanding that people may, from time to time, have good reasons to tell lies from which they later retreat and give a different version. Whether any explanations which had been offered for lies or for inconsistencies are acceptable; whether the inconsistencies or contradictions are material or involve matters of detail which are of no great significance, as to which there might have been mistakes or which might have been overlooked in a fraught situation, is essentially and quintessentially, a matter for you as jurors, because it is for you to assess and determine whether you accept their evidence as true or not.

The judge was required to inform the jury of the matters which may make the evidence of these witnesses unreliable. The undertaking given to them by the Attorney General was one such matter, and it was necessary for the judge to state its effect. We are not persuaded that the unfavourable interpretation which this submission places on the direction would have been conveyed to the jury either alone or in that context. The silence of all three counsel then appearing for the accused at the trial is eloquent testimony that such an interpretation was not conveyed. The complaint is rejected.

194 Complaint (c) was that the jury could not have been aware that the witnesses, particularly Rossini, had been excused their criminality in a much wider sphere than the evidence disclosed at the trial. This appears to be effectively an assertion that the Crown had failed either to disclose such material to the defence or to tender it at the trial. No such complaint has been made expressly, and no indication has been given to this Court of what that material is. Perhaps counsel who signed the written submissions did not intend to go so far. Insofar as the complaint was intended only to assert that the judge failed to refer to material which was in evidence, it has already been dealt with in pars [175]–[187] supra.

195 Complaint (d) was that the jury were very likely to have reasoned that the Crown would not have called the witnesses unless it was satisfied that the version that they would give to the jury was in fact true. When counsel for Kanaan effectively made this complaint at the trial (see par [170] supra), he said that the point of his address had been that the undertaking indicated that the witnesses should tell the truth, whereas Rossini had told “bald-faced lies”. He suggested that it was for this reason wrong for the judge to have suggested to the jury that the witnesses were obviously telling the truth. The judge replied that he had not made any such suggestion.

196 In our opinion, the interpretation for which the appellants now contend is an unreasonable one in the light of the whole of the summing-up. The series of directions the judge gave (as quoted at pars [167]–[169] supra) made it very plain that the jury had to exercise caution and great care in assessing the evidence of the three Crown witnesses. If the interpretation for which the appellants now contend was conveyed, it would necessarily have been seen as inconsistent with the directions given. Counsel for Kanaan at the trial was obviously sensitive to what he had perceived to be a comment by the judge denying the effectiveness of his final address, in which he had attacked the credit of those witnesses with considerable vigour. In our opinion, no such interpretation of what the judge said would have been conveyed to the jury. In any event, even if (contrary to our opinion) such an interpretation was conveyed, the judge gave the usual directions that he had no role to play in the jury’s determination of the facts of the case, and it caused no miscarriage. The complaint is rejected.

197 Complaint (e) was that the jury should have been advised that adverse consequences were only likely to flow to the witnesses if they did not give evidence in accordance with their statements to establish the Crown case (whether that was true or not). Complaint (f) was that the jury should have been directed that, if the witnesses failed to give evidence against the accused in accordance with their undertakings, they faced a real danger of prosecution for their involvement in these offences and a real danger that the prosecutions against them, which had been dropped, would be proceeded with. These two complaints may be dealt with together.

198 There has been discussion in a number of decisions of this Court as to the extent to which the Crown is obliged to disclose to the accused the status of witnesses such as these three Crown witnesses, the benefits they have received and the consequences to the witnesses if their evidence does not come up to expectations. A useful exposition is to be found in Regina v Sullivan [2003] NSWCCA 100 at [68]–[81]. It is clear that, subject to what is said in the next paragraph, the jury should be in possession of all relevant information concerning the status of witnesses. Other than the possibly unintended — but in any event baseless — suggestion in complaint (c), there has been no suggestion of any defect in the disclosure made by the Crown in the present case. Nor is there any suggestion that the Crown failed to put the necessary material into evidence or any complaint of a failure by counsel appearing for the accused at the trial to ensure that the status of these three witnesses was fully exposed to the jury. The complaint is that the judge failed to give sufficient detail of these matters to the jury in his summing-up.

199 It is necessary to repeat what was said in par [182] supra that, in relation to s 165(2), the trial judge is required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury; it is unnecessary for the judge to go beyond how the case has been conducted and to deal with every other matter of significance which may reasonably be regarded as undermining the reliability of the evidence given by an accomplice witness. There may, of course, be the case where counsel at the trial fail to deal with the issue to such an extent that there is a danger of a miscarriage of justice (see par [55] supra), when the trial judge (if aware of the problem) would be expected to avoid such a result by dealing with the issue in more detail. As already stated (at par [55] supra), that has not been suggested in the present case.

200 This case was not conducted by counsel at the trial on the basis that the details to which the present complaints are directed should be emphasised in their final addresses. Nor was the judge asked to put these details to the jury. Rule 4 applies. We are not satisfied that there has been any miscarriage of justice because the judge did not direct particular attention to these details in his summing-up. The complaint is rejected.

201 The appellants next assert that the Laycock brothers, as accessories after the fact, were "accomplices", and that their evidence should therefore have been the subject of a warning pursuant to s 165. The judge did give such a direction, but the appellants complain that it was inadequate.

202 Is an accessory after the fact an accomplice in relation to whom a warning is required if requested? The appellants rely on Davies v DPP [1954] AC 378 at 401 for the inclusion of accessories after the fact within the category of accomplices. Such an inclusion has not been universally accepted. In “The Corroboration of Accomplices”, [1973] Crim LR 264, Mr JD Heydon pointed out (at 277) that, except in limited circumstances, no danger exists in the evidence of an accessory after the fact because he cannot be convicted as such an accessory unless the perpetrator of the crime is found guilty, so that, by testifying against the perpetrator, he is giving evidence against his own interests. With somewhat greater authority twenty-eight years later, Heydon JA made the same point in Regina v Clark at [50], [66]–[73]. In that case, the accessory after the fact had been given an indemnity from prosecution, but even that indemnity did not make his evidence “of a kind that may be unreliable" requiring a warning to be given if requested, as it protected him only against “unimportant crimes”; it did not protect him against being prosecuted as a principal or an accessory before the fact in relation to the crime of murder.

203 The need for a warning pursuant to s 165 is not, of course, restricted to the evidence of an accomplice properly so called. Section 165(1)(d) refers to the evidence of a witness “who might reasonably be supposed to have been criminally concerned” in the events giving rise to the trial in which the evidence is given. There was no argument addressed to whether an accessory after the fact would fall within the terms of s 165(1)(d), but it would appear that this may be so. It is unnecessary to determine the point in this appeal because the judge in fact gave a direction in relation to the Laycock brothers. But, whether or not the usual accomplice warning should have been given (for the reasons discussed at pars [164]–[165] supra), the fact that the Laycock brothers had been given undertakings by the Attorney General is (for the reasons discussed in par [166] supra) a matter which may still cause their evidence to be unreliable, and thus a warning was required by s 165 if requested. No such request was made, and (apart from the complaints referred to in par [169] and discussed in pars [188]–[190] and [195]–[196] supra) no action was taken seeking any further relevant directions to be given.

204 We are satisfied that the specific directions the judge gave went as far as counsel had in relation to the effect of the undertakings given and the consequences to each Laycock from such an undertaking if his evidence departed from what he had told the police, and that the directions given adequately warned the jury as to the need for caution in relation to their evidence. If leave were granted to the appellants pursuant to r 4 to complain of this matter on appeal, we would dismiss the complaint. In any event, we are not satisfied that there has been any miscarriage of justice in relation to this issue.

205 The appellants’ next submission supporting Ground 3 is that it was incumbent on the judge in this case to direct the jury that, as Rossini was an accomplice, it was dangerous to convict the accused on his uncorroborated evidence, to give the jury assistance as to the nature of corroborative evidence and to identify what evidence there was which, if accepted, could constitute corroborative evidence in this case. Reliance was placed on the decisions of this Court in Regina v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 and Regina v Ngo.

206 In Regina v Chen, the trial judge had directed the jury that it was dangerous to convict on the uncorroborated evidence of an accomplice. This Court held (at [58]) that, although s 164(3) abolished the universal common law duty to give an accomplice warning, “the power and the duty to do so in appropriate circumstances survives: see also s 165(5)”, and that it had been “incumbent” on the trial judge in that case to give a clear direction to that effect. We have emphasised the words “and the duty”. The judgment in Chen added (at [58]):

It would have accorded with normal practice for his Honour to have instructed the jury that, although it was dangerous to convict upon the uncorroborated evidence of Chan, the jury might nonetheless do so if, having scrutinised his evidence with particular care, and in the light of the warning as to the said danger of conviction, the jury was prepared to accept the evidence and to act upon it.

207 The Evidence Act, by s 164, provides:

164 Corroboration requirements abolished

(1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or

(b) give a direction relating to the absence of corroboration.

Section 165(5) of the Evidence Act provides:

This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

The application of that subsection was considered in Regina v Rose, in which it was said (at [295]) that the trial judge had a residual power to give a warning where the judge is satisfied that it is necessary to do so in the interests of justice: see pars [118], [121] supra.

208 In Regina v Ngo (at [187]–[188]), this Court followed what had been said in Regina v Chen at [58]. In neither Chen nor Ngo was any reference made to the decision of the High Court in Conway v The Queen (2002) 209 CLR 203. That decision was delivered by the High Court on 7 February 2002, after judgment in Chen had been reserved but before it had been delivered. The decision in Ngo was delivered in November 2003. In a later case, Regina v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117, it was emphasised (at [75]) that the survival of “the power and the duty” to give a common law accomplice warning was limited in Chen to the case where the circumstances were appropriate for it to be given.

209 The appellant in Conway v The Queen was tried in the ACT Supreme Court for the murder of his wife. The trial proceeded in accordance with the Commonwealth Evidence Act 1995, which is, so far as is here relevant, in the same terms as the New South Wales Evidence Act. The Crown case was that the appellant (a police officer) and the woman with whom he was living had contracted with two men to pay them $15,000 to kill his wife by injecting her with a fatal dose of heroin. After the two men had been arrested, and at the request of the police, they had a conversation with the accused (one of the men wearing a listening device) in which the men reported that they had murdered the accused’s wife and there was discussion about a debt the accused owed them. The two men had pleaded guilty to murder prior to the appellant’s trial, and they had received significantly discounted sentences because of their willingness to cooperate with the prosecution.

210 The trial judge gave a direction to the jury that they —

... should consider it dangerous to convict [the] accused upon the evidence of those accomplices or one of them, unless it is confirmed in some material way by other evidence.

In the High Court, the joint judgment of Gaudron ACJ, McHugh, Hayne & Callinan JJ (at [53]) described that warning as having been appropriate had the general law still applied, but as having been framed without regard to the provisions of the Evidence Act. Kirby J (at [81]) agreed with that statement. Of ss 164 and 165, the joint judgment said (at [53]) that they abolished the necessity for such a warning but they did not prohibit such a warning being given in that case, and (at [55]) the joint judgment said that it may be that the warning given in that case went beyond what is required by s 165(2). Some of the material identified by the judge as being capable of corroborating the evidence of the two men was held to be incapable of doing so. The issue on which the appeal in that case turned was whether there had been a substantial miscarriage of justice; it was held that there had not, the proviso was applied and the appeal was dismissed.

211 There has been some examination in this Court as to whether the survival of the “duty” referred to in Chen to give a common law accomplice warning in certain circumstances — as a warning pursuant to s 165(2) that the evidence in may be unreliable — requires the phraseology of that common law warning to be used, that is, whether it is necessary to direct the jury in terms that it is dangerous to convict on the uncorroborated evidence of the witness in question. In Regina v Livingstone, it was held (at [75]) that the form of words proposed in Regina v Chen need not be used in all cases where an accomplice direction is to be given. Reference was made in that decision to two earlier decisions of this Court.

212 The first case, Regina v AGJ (BC9705789), CCA, 30 October 1997 (unreported), was an appeal relating to the warning to be given in relation to a young complainant in a sexual assault case aged, at the time of the various offences, between eight and thirteen years old. Hunt CJ at CL (at 1) made the point that s 165 does not require a direction that it would be dangerous to convict (as was required at common law), it requires only a warning that the evidence may be unreliable (with information as to why that may be so) and that caution is needed in determining whether to accept the evidence and the weight to be given to it. That statement was followed by this Court in Regina v Smith (BC0707089), CCA, 18 December 1997 at 15.

213 The second case, Regina v Clarke (1997) 97 A Crim R 414, was an appeal relating to the warning to be given in relation to identification evidence. The common law required a warning as to the dangers of convicting on identification evidence where its reliability is disputed: Domican v The Queen at 561-562, 567-568. It was held in Clarke (at 427) that the common law requirement that the reference to the “dangers” of convicting had not been imported into the identification evidence warning required by s 116 ("there is a special need for caution before accepting identification evidence"). The decision in Clarke has been followed by this Court in a number of cases, see, for example, Regina v Coe [2002] NSWCCA 385 at [67]; Regina v Demiroz [2003] NSWCCA 146 at [53]; Hajje v Regina [2006] NSWCCA 23 at [82].

214 In our opinion, just as in relation to s 116, the wording of the common law accomplice direction that it is dangerous to convict on the uncorroborated evidence of an accomplice has not been imported into the accomplice warning to be given pursuant to s 165(2). Section 165(4) specifically provides that it is not necessary that any particular form of words be used in giving the warning or information which s 165(2) requires when a party has requested the judge to give a warning that evidence may be unreliable. Even at common law, a reference in an accomplice direction to “danger” or “dangerous” was not essential, so long as the jury were made fully aware of the dangers themselves: Regina v Spencer [1987] UKHL 2; [1987] 1 AC 128 (a case involving witnesses with mental illness) at 142 (Lord Ackner, with whom the other Law Lords agreed). Lord Hailsham of St Marlylebone LC added (at 135) that the modern cases correctly “are reluctant to insist on any magic formula or incantation, and stress instead the need that each summing-up should be tailor-made to suit the requirements of the individual case”, a statement quoted with approval in Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 (a case involving police evidence of a disputed oral confession) at 321 (Wilson & Dawson JJ) and in Regina v Johnston (1998) 45 NSWLR 362 (a sexual assault case) at 369 (Spigelman CJ, with whom the other judges agreed).

215 It is clear that the statement in Regina v Chen — that, in the circumstances of that case, the judge had a duty, and that it was "incumbent" (that is, obligatory) on the judge, to direct the jury that it was dangerous to convict on the uncorroborated evidence of an accomplice — was made without the benefit of what had been said by the High Court a short time previously in Conway v the Queen, that the necessity for such a warning has been abolished by the Evidence Act. The decision in Regina v Ngo merely followed what had been said in Chen, without reference to Conway.

216 In the circumstances that —

(i) Conway v The Queen explicitly states that a common law accomplice warning that it is dangerous to convict is not necessary, although it is permissible,

(ii) the need for corroboration for any evidence (except in relation to trials of perjury or a similar or related offence) has been abolished by s 164, unless some other provision of the Evidence Act requires it, and

(iii) the terminology of the common law accomplice direction is not imported into the accomplice warning to be given pursuant to s 165(2) (as we have asserted in par [214] supra) —

it is, with due respect, not possible to agree with this Court’s decisions in Chen and Ngo, and to some extent with the decision in Livingstone, that the necessity for such a direction (or the duty to give such a direction) has survived “in appropriate circumstances”.

217 In our view, the effect of ss 164-165 (as now interpreted by the High Court) is as follows:

(1) It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated.

(2) The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is:

(a) to give a warning that the evidence of that witness may be unreliable,

(b) to inform the jury of matters that may cause it to be unreliable, and

(c) to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The matters to which reference was generally made in the directions which accompanied the common law accomplice warning (see pars [164]–[166] supra) should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable.

(4) The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so.

218 In the present case, the judge was not requested to give a direction that it would be dangerous to convict on the uncorroborated evidence of Rossini and the Laycocks. The obligation to give any warning pursuant to s 165(2) did not arise. No complaint was made that such a direction had not been given. Rule 4 therefore applies. We are not satisfied that such a direction should nevertheless have been given in the circumstances of this case, despite what was said in Regina v Chen as asserted by the appellants. Nor do we accept that, such a direction being permissible, any error has been demonstrated by the absence of such a direction in the present case. It would be extremely difficult in any case to argue that a direction which is unnecessary but permissible was compulsory in that particular case, particularly when no such direction was sought. Even if leave were granted to rely on the complaint made for the first time on appeal, we would dismiss the appeal. In any event, and in the light of the extensive warnings given by the judge, we are not satisfied that any miscarriage of justice has been caused by the absence of such a direction.

219 The appellants’ final submission in support of Ground 3 is that the judge wrongly directed the jury that they could find "support" for the evidence of Rossini in the evidence of the Laycock brothers. Reliance is placed on Pollitt v The Queen (1992) 174 CLR 588 at 600, where the rule that one accomplice cannot corroborate another was said to have been based in large part on the common interests of accomplices in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. For the reasons already given (in par [202] supra), the Laycocks as accessories after the fact were not accomplices. Nor was there any requirement that Rossini’s evidence be corroborated.

220 The High Court in Pollitt also said (at 600) that corroboration could not be given of the evidence of an accomplice where there was the possibility of joint fabrication by the accomplice with the other witness. There was such a possibility of joint fabrication between Rossini and the Laycock brothers. It would therefore have been an error if the judge had directed the jury that the evidence of the Laycock brothers could corroborate that of Rossini. He did not do so. His instruction to the jury was that they should look "to see to what extent there is any independent support" for the evidence Rossini had given. That direction did not invite the jury to equate independent support with corroboration.

221 The words "independent support" have a far wider meaning than "corroboration", and therefore “support” need not be of such a nature that it confirms in some material particular not only that the crime has been committed but also that the accused committed it: cf Rex v Baskerville [1916] 2 KB 658 at 665, 668. Provided that the jury is adequately warned that the evidence of a witness who may have fabricated a story jointly with the “accomplice” may be unreliable for that reason when looking for support in that witness’s evidence of the evidence given by the “accomplice”, there is no reason why the jury may not look for support in such evidence.

222 In the present case, having instructed the jury that each of these three witnesses — Rossini and the two Laycocks — had an interest to serve in relation to his previous criminality and his own criminality in connection with the murder charged, the judge invited the jury to look for independent support in the evidence of the Laycocks. He continued:

The question of cross support between [the three witnesses] obviously is relevant so far as it might exist. There is no absolute rule of law now that the evidence of one witness who has some possible involvement in criminality cannot be supported by the evidence of another. However, as a matter of common sense and experience, you must take into account where you have people who are associated in matters of criminality, or have some associations with occasions of this kind, that is a shooting, the need to be very careful with each of them. Particularly that is so where they are related through families and where each has a possible interest in escaping prosecution and imprisonment for prior offences, or for offences after the shooting, and in protecting close relatives from a similar fate. So you must take into account, so far as their accounts are parallel or substantially parallel, the possibility that they have colluded or that one has drawn assistance from what the other has said.

223 The direction given was in very confined terms. The judge commented that such evidence was relevant only "so far as [the independent support] may exist". The directions quoted could not have left the jury in any doubt that great care had to be taken before any support for the evidence of the three witnesses in question could be found in the evidence of the other two witnesses. No complaint was made at the trial in relation to these directions. Rule 4 applies. In the light of all the warnings given, we are not satisfied that the directions given caused a miscarriage of justice. There could have been no real danger that, in the light of those directions, the jury would have given undue weight to the evidence given by the Laycocks in order to convict the appellants. We reject the complaint made on appeal.

224 It follows that Ground 3 has not been made out. It is rejected.

Ground 6 — Joint criminal enterprise

225 This ground, which is taken by the appellant El-Assaad, asserts that the judge erred in his directions on “common purpose”.

226 The relevant directions relating to El-Assaad were as follows:

The law in this regard is that where two or more persons carry out a joint criminal act in concert, that is together, each is responsible for the acts of the other or others who are also a party to it, that is, party to the enterprise; and to participate in carrying it into effect: To establish criminal liability in this respect, therefore, the Crown has to establish both the existence of the joint enterprise and the participation in it by the accused.

Now, a joint enterprise does not have to be reduced to writing or any formality. A joint enterprise simply means that people are acting together, that is, of a common mind and with a common aim shared between them. So we do not need the formality, as it were, of a written agreement and, indeed, an enterprise can be put together very quickly or it can be longstanding.

A person participates in a joint enterprise if he or she is present at the time when the crime is committed and with knowledge that the crime is going to be committed, intentionally assists or encourages the other participants to carry it out. Where you do have a joint enterprise established and where it can be shown by the Crown that the participants to it actually participated either by being relevantly here, the shooter, or by being present, encouraging or assisting the shooter, then it does not matter if the Crown cannot establish who fired the fatal shot. It is enough that they were present and involved in a joint enterprise and participated in it either by firing the fatal shots or by encouraging whoever did so, to fire those shots.

227 In relation to El-Assaad specifically, the judge said:

The position in relation to Mr El-Assaad is somewhat different, because on the Crown case he was not physically present out on the street when the shots were fired. His liability, if it arises, depends upon the Crown showing that he was an accessory before the fact. An accessory before the fact is a person who, although not present at the place where and at the time when a crime is committed counsels, or assists or encourages another person to commit the offence.

[...]

As you might expect, mere knowledge that a crime is about to be committed, or even mere acquiescence in its commission are not enough. There must be an addition, on the part of the accessory, an urging or encouraging or assisting of the principal to commit the offence. Here, it is the Crown case that El-Assaad assisted Gea Gea, Mawas and Kanaan by sending a telephone alert that Karam was on his way down, thereby enabling them to ambush and shoot him when he got back to his car.

The assistance provided, or the encouragement given must have been intentional that is deliberate.

[...]

The accessory must know that a crime was in contemplation and he or she must then intentionally provide assistance aimed at its commission.

The counselling or encouraging or the assisting must continue up to and including the time that the offence was committed. [...]

228 The judge then summarised for the jury the written directions which he had provided in relation to El-Assaad’s liability as an accessory before the fact.

Relevantly, in this case the Crown must establish beyond reasonable doubt, in order to establish the guilt of Wassim El-Assaad, that:

1. There was in existence, an understanding or arrangement to shoot Danny Karam with the intention of killing him, to which he was a party.

2. Pursuant to that understanding or arrangement, one or other of the accused, or Gea Gea, shot Karam with the intention of killing him thereby causing his death.

3. At some time before the fatal act was done he, knowing that other parties to the joint enterprise intended to shoot and kill Danny Karam, by his acts or words assisted or encouraged those persons, including the one or ones who fired the fatal shot, to do that act.

4. That he did not before the shooting, withdraw his assistance or encouragement.

229 In conclusion, the judge said:

The central issue in relation to El-Assaad additionally concerns, not only whether he was part of the same joint enterprise, but also whether with knowledge that they were going to kill Karam, he deliberately and intentionally assisted them by sending the message or warning.

230 The Crown case as put to the jury was therefore that El-Assaad, by sending a telephone alert to the three shooters that Karam was on his way from the apartment to his motor vehicle, enabled the shooters to ambush and shoot Karam when he returned to his vehicle. The judge clearly tied El-Assaad into the joint criminal enterprise to shoot Karam dead. The case was not put as a simple one based merely on El-Assaad being an accessory to the shooting of Karam by the three shooters as principals, which would not have depended on the evidence of any pre-arranged plan. The case that El-Assaad was a party to the joint criminal enterprise avoided any arid arguments as to whether he was aware of the intention to kill or any need to rely on murder as a possible incident of carrying out some lesser crime contemplated by El-Assaad.

231 The first complaint now made by El-Assaad is that the judge failed to make it clear to the jury that, before he could be convicted as an accessory before the fact, it was necessary for the jury to accept not only that he was present at the meetings where various plots to kill Karam were discussed by his co-accused and Gea Gea but also that he was participating at least in the sense of being in agreement that this should happen, and that he was willing to assist. To do so it was necessary for the judge to explain what being “a party to an understanding or an arrangement” meant.

232 The directions as to the joint criminal enterprise accorded fully with what was said in Regina v Tangye (1997) 92 A Crim R 545 at 556-567; see also Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at [73]. They made it clear that the Crown had to establish (1) the existence of the joint criminal enterprise and the participation in that enterprise by the particular accused, and (2) that an accused participated in the enterprise if he was present at the time when the crime was committed and intentionally assisted or encouraged the other participants to carry it out, or (3) insofar as El-Assaad was concerned, that although he was not present at the time he must with knowledge that the shooters were going to kill Karam have deliberately assisted them by sending the warning message.

233 The directions made it made it clear that (1) the mere presence of El-Assaad at the meetings which led to the joint criminal enterprise to kill Karam was insufficient to make him a party to that enterprise, and (2) that the Crown had to establish that he had agreed in the object of that enterprise, the killing of Karam. The judge had earlier made it sufficiently clear that the joint criminal enterprise was the killing of Karam, and he had given detailed directions as to the way the Crown sought to prove beyond reasonable doubt that each of the appellants had been involved in the discussions which led to the existence of that joint criminal enterprise.

234 There was no complaint at the trial by counsel for El-Assaad as to the adequacy of those directions, which suggests strongly that they were expressed in terms which made the case against his client apparent.

235 The second complaint now made is that, in remarks made later in the summing up, the judge failed to make it clear that mere presence at the meetings was not sufficient to establish the Crown case against El-Assaad. The first passage to which this complaint is directed followed the summary by the judge of the various meetings of the co-accused. He said:

So those matters related to discussions the Crown relies upon as a circumstantial case against each accused, depending obviously on Rossini’s evidence entirely, save so far as it might be supported by any evidence by the Laycocks that there were meetings between the various people, although they obviously could not tell you what was discussed. Again, those various meetings are only relevant against any particular accused if he was party to those discussions, that is, present at them.

And, after summarising the matters on which the Crown relied to establish its case, the judge said:

Now, obviously, some of those matters are more important that the others. Indeed, some are essential and have to be proved beyond reasonable doubt if the Crown is to make good the various elements and the ultimate guilt of the accused. For example, they would include the holding of discussions at Riley Street attended by the accused in which plans were made to kill Karam. It would also include the presence of Mawas, Kanaan and Gea Gea as the three men in Fitzroy Street who between them shot Karam [...].

The complaint is directed to the highlighted sentences in each of those passages.

236 In each case, the judge was speaking generally of the facts on which the Crown relied to establish the content of the meetings at which the three accused discussed the killing of Karam. He could not have been interpreted by the jury as identifying once more the ingredients of the case against El-Assaad. In their proper context, there is nothing in those highlighted remarks which in any way derogated from the express directions which the judge had earlier given (quoted in pars [226]–[228] supra) in relation to the criminal liability of El-Assaad. Nor could they have been understood by the jury as having been intended to do so.

237 This ground of appeal is rejected.

Ground 4 — Cumulative effect of errors

238 This ground, filed jointly by all three appellants, asserts that a miscarriage of justice resulted from a combination of “the matters in the preceding grounds”. At the time Ground 4 was filed, there were only three other grounds of appeal, but it has been accepted that it refers to all of the other grounds complaining of error — that is, it now includes Grounds 5 and 6. The legitimacy of such a ground of appeal is said to have been based on this Court’s decision in Regina v Clough at 407-408, but (as that decision makes it clear) it is in reality based on the terms of s 6 of the Criminal Appeal Act 1912, which requires the Court to allow an appeal where it is of the opinion that, on any ground whatsoever, there has been a miscarriage of justice.

239 Ground 4 is restricted to “the events and errors” identified in the other grounds of appeal. The “events” appear to be those discussed in relation to Ground 1. The submissions made in support of Ground 4 were intended to emphasise that, although the error or errors said to have been made in relation to each of the other grounds of appeal may not by itself or themselves alone have caused a miscarriage of justice, the accumulation of the effects of those errors has caused such a miscarriage, in the sense that each of the appellants has lost a real chance (or a chance which was fairly open to him) of being acquitted of the charge of murder against him: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514; Regina v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 371-372.

240 As it has now turned out, the appellants have had little success in arguing that they were prejudiced by events which occurred at the trial. In some instances, we have said that there was no error made by the judge but that, even if that view were incorrect, no miscarriage of justice had resulted from such error. In every other instance where error was asserted, the assertion was rejected. Only one of the grounds of appeal did not follow that path. That was the complaint in Ground 2(a), which was concerned with the failure by the Crown prosecutor to comply with the rule of practice laid down in Browne v Dunn when he criticised the Crown witness, Mrs Zahabe, who had given negative identification evidence in favour of the accused, notwithstanding that he had not cross-examined her.

241 No error by the judge was established in relation to this incident, because he had not been asked to give any relevant direction at the trial. We said (at pars [95], [105] supra) that, in our view, if the Crown prosecutor had sought leave to cross-examine Mrs Zahabe pursuant to s 38 of the Evidence Act, the application should have been granted and that, if she had been cross-examined, the appellants would (for the reasons given there) have been far worse off than from any prejudice which may have flowed from the conduct of the Crown prosecutor. We do not accept that this incident, considered either by itself or in combination with the other incidents discussed in this appeal, led to a miscarriage of justice.

242 Although not expressly stated in relation to this ground of appeal, it is clear from everything said in support of the appeal that Counsel now appearing for the appellants consider that, if they had been appearing for them at the trial, they would have conducted the case differently, and thus the result of the trial may well have been different. They have gone through the record in minute detail looking for error, any error, without reference to the manner in which the trial was conducted: Regina v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 at [40]–[45]; Regina v Fowler at [38]. It is important to note, however, that (as already pointed out at par [55] supra) it has not been suggested in this case that the way in which the trial was conducted by their predecessors led to a miscarriage of justice. The right to appeal does not exist to enable an accused who has been convicted at a trial conducted in one way to obtain a new trial in order to conduct it in a different way.

243 Ground 4 is rejected.

Ground 7 — Fresh evidence: Detective Fabris

244 This ground of appeal asserts that a miscarriage of justice was occasioned as a result of the absence at the trial of fresh evidence. The material relates to the conduct of a police officer named Detective Fabris who was involved in the investigation of the present matter. It consists of evidence which Detective Fabris gave before the Police Integrity Commission on 10 September 2002, in which he admitted that, whilst a member of Task Force Magnum, he had engaged in corrupt conduct. The nature of the evidence is more particularly described in this Court’s decision in Regina v Kanaan [2005] NSWCCA 385 at [145]–[146], to which reference has already been made and in which an identical ground of appeal had been taken. It is unnecessary to repeat here what was said there beyond the description by the Police Integrity Commission of the admissions Fabris made, as including “instances of participating in loads, verbals, false admissions, falsifying statements for use in proceedings and perjury”. That conduct occurred over the period 1991 to 1992 when Fabris was a member of that task force. The events with which Fabris was connected in the present case occurred in June 1999.

245 The Crown has not contested that this material constitutes “fresh evidence”.

246 So that we could make an assessment of the present complaint, we were provided with a document which, the parties agreed, identifies the extent of the involvement of Detective Fabris in the present matter. Counsel for the appellants explicitly acknowledged that there was no evidence of Detective Fabris having had any contact with Rossini (the “critical” witness, and one of the “key” witnesses, for the Crown) in relation to the present matter.

247 So far as the document concerns the Laycock brothers (the other “key” Crown witnesses), it reveals that Detective Fabris, together with a Detective Raines, “conferred” with Peter Laycock on 6 June 1999. With that officer and another officer, Fabris then took the witness on a “run-around” (the colloquial name for inspections of relevant sites or property). No submissions were directed to this event. Fabris also attended to the “security” of the witness. The following day, Fabris made arrangements to speak to other members of the Laycock family. The next day, he conveyed Peter Laycock and his brother Oscar to a police station. Whilst there, he took a statement from Oscar Laycock, after which he took the two brothers home. Finally, on 10 June 1999, Fabris spoke to two unrelated persons as to their knowledge of the deceased. It is thus apparent that the involvement of Detective Fabris in the present matter was only a very minor one, and that it took place over the course of only a few days at an early stage of the investigation.

248 Counsel for the appellants point to the fact that Peter Laycock altered the evidence he was to give in certain respects. For example, he initially made no reference to having observed the shooting of Danny Karam, whereas subsequently he asserted that he did see it, and he identified the appellant Mawas as one of the shooters. He then went on to provide a detailed description of what Mawas was wearing, even though that description was proffered for the first time some months after the events in question. In addition, counsel highlighted the fact that Rossini was also able to provide a very detailed description of the clothing worn by Mawas. It was also pointed out that, when first questioned as to his understanding of the motive for the shooting, Peter Laycock professed to be unaware of any motive, whereas he later claimed that the appellants were motivated to take over the deceased’s enterprise, consistently with the Crown case. These discrepancies in Peter Laycock’s evidence were comprehensively highlighted in the final addresses of counsel to the jury.

249 It was contended, as it had been in the earlier appeal, that the material described as “fresh evidence” revealed a propensity on the part of Fabris to act corruptly. Had that evidence been available at trial, so the argument ran, it could have been relied on by the appellant as tendency evidence within the meaning of s 97 of the Evidence Act. It was submitted that, given his role as an investigating officer in the present matter, Fabris could have had the opportunity to influence — in some unspecified manner — the evidence the Laycock brothers would or could give in order to facilitate its acceptance by the jury. Fabris was not the only police officer dealing with the Laycock brothers. Significantly, counsel acknowledged that there was no evidence to suggest that the changes in the evidence Peter Laycock was to give were in any way attributable to Fabris. On the contrary, Fabris played no part in the record of interview in which Peter Laycock participated on 1 June 1999 during the course of which he referred, for the first time (it seems), to having seen Mawas shoot the deceased. Indeed, that interview took place before the involvement of Fabris in the present matter commenced.

250 Precisely the same submissions were advanced in relation to the conduct of Fabris in the earlier appeal, which was concerned with murders and malicious wounding with intent in July 1998. What is immediately apparent is that Fabris played a far more extensive role in that investigation (see the earlier judgment at [147]). In that case, counsel proffered three specific examples which they contended were instances of Fabris having influenced the evidence of the prosecution witnesses. That material is referred to in the earlier judgment at [149]–[154] and [160]–[162]. Counsel were unable to point to any material of a similar kind in the present case. The appellants were unable to establish any link between the corrupt conduct of Fabris and any matter in issue in this trial.

251 In our judgment in the previous appeal, we referred to the considerable number of cases heard by this Court as to the reception of evidence that a police officer involved in the particular case has subsequently been demonstrated in the Police Royal Commission to have acted corruptly, either generally or specifically in relation to the case before the court. The same considerations apply where the corrupt conduct has subsequently been demonstrated in the Policy Integrity Commission. In that appeal, we adopted the test which had been stated in Regina v Vastag (Court of Criminal Appeal, unreported, 20 June 1997) in these terms:

Material from the Royal Commission should be considered to determine whether it is capable of disclosing conduct or, possibly a reputation therefor, pointing to a preparedness in the officer to act corruptly, at least by dishonesty, in his performance of his duties in criminal investigations. The closer the suggested adverse conduct is in the Royal Commission material to that which is relevant to the particular trial, the more persuasive will be the position of an appellant in an appeal of this nature.

See also Regina v Johns [1999] NSWCCA 206; (1999) 110 A Crim R 149 at [43]–[47]; Regina v Robinson [1999] NSWCCA 186 at [49]–[53].

252 Applying that test to the present case, we are not persuaded that the “fresh evidence” of the corrupt conduct of Fabris in 1991-1992 is of such a character that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before them: see Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 399, 402; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 273; Regina v Goonan (1993) 69 A Crim R 338 at 341-342.

253 This last ground of appeal against conviction is accordingly rejected. The appeal against conviction is dismissed.

Applications for leave to appeal against sentence

254 Kanaan received a sentence of imprisonment for life, Mawas imprisonment for 25 years with a non-parole period of 19 years, and El-Assaad imprisonment for 24 years with a non-parole period of 18 years.

255 Kanaan has not sought leave to appeal against his sentence, in the circumstances outlined in par [3] supra. Mawas was granted leave to file an application for leave to appeal against his sentence at the hearing of the appeal against conviction. El-Assaad had already filed an application for leave to appeal against his sentence together with his appeal against conviction.

256 The remarks by the trial judge on sentence concerning the objective gravity of the offence, to which brief reference was made in par [2] supra, were as follows:

[31] I find that this was a deliberate assassination which was carried out under Kanaan's leadership, substantially in order to advance the interests of the prisoners in ongoing criminal activities. While it may not have had that result, it was motivated to a considerable degree by greed, and it was callous and cold blooded. While the prisoners are to be sentenced for the offence of murder, and not for any other criminal offences, it is impossible in assessing the objective criminality of this killing to ignore those wider circumstances, or the motive for it. The principal motive of Kanaan, and his recruitment of the others into his plan, I am satisfied, was to acquire an entrenched position for his subgroup in the trade of narcotics, and to increase their standing within that section of the criminal milieu which chooses to devote itself to that area of activity. A subsidiary motive was his sense of grievance at not being properly treated by Karam.

[32] The fact that the offence was carried out in such a context, and involved the use of firearms, which appear to be regarded by many in the world of drug dealing as tools of the trade was, in my view, an aggravating circumstance.

[33] There is not the slightest reason to suppose that the prisoners killed Karam to escape from his evil spider web, or that they had any intention of abandoning the business of selling cocaine, and of exacting protection money from drug runners on the streets of Kings Cross.

[34] In these circumstances, the objective criminality of each of Mawas and Kanaan, as shooters, and of El Assaad as a party to a joint enterprise to murder Karam, is of a very high order indeed.

[...]

[36] No mitigation of the offence was provided by the fact that the killing was of a vicious criminal who was himself a danger to society. The community no more tolerates his killing than it did his criminal behaviour. Even less does it tolerate the notion of gangland shooting, whether internecine or otherwise. On the other hand, it cannot be overlooked that it was Karam who encouraged the prisoners, all young men in their early twenties, to enter this milieu, and who helped to blunt their sensibilities to the real world.

[...]

[40] At this stage, it is sufficient that I record my finding that each is to be sentenced upon the basis that this was a deliberate and cold blooded assassination carried out with considerable premeditation. By reference to the number of shots fired, the weapons used, and the proximity from which they were discharged, the only conclusion open is that this was a shooting carried out by the prisoners with an intent, and with a strong determination, to kill. That is itself a circumstance of some aggravation: Regina v Hearne [2001] NSWCCA 37.

[41] It is true that at the time of the offence the three prisoners were each aged in their early twenties. However, the gravity and violence attaching to this offence, and their election to conduct themselves in the way that hardened criminals of more advanced years might do, cannot be relied upon by way of any significant diminution in their objective criminality for the reasons outlined in Regina v Townsend and Cooper NSWCCA 14 February 1995, Regina v Pham (1991) 55 A Crim R 128; and Regina v Mastronardi [2000] NSWCCA 12.

257 It is convenient to deal with the individual applications by Mawas and El-Assaad separately.

Mawas

258 The sole ground of complaint by Mawas is that “the sentencing judge erred in giving no weight to the fact that the applicant was serving his sentence in the High Risk Management Unit at Goulburn Correctional Centre”. That ground was further refined in the submissions. In its final form, the contention was that the judge “did not give any weight to the fact that the appellant had served a part of his sentence and probably would serve a further indeterminate part of his sentence in the HRMU”. The essential substance of the submission is that the judge failed to take into account, as a matter mitigating the otherwise appropriate sentence, the fact that the applicant had served at least part of his sentence in circumstances more onerous than those confronted by other prisoners who were not so confined.

259 The personal circumstances of Mawas to which the judge referred assume importance not only for his own application but also because El-Assaad has raised an issue of parity arising from the sentences which were imposed on each of them. The summary given of that material in relation to Mawas is in the following terms:

[57] The pre sentence report shows that Mawas was born on 1 March 1977, and is now aged 25 years. He was the eldest child in a family of four children born to Lebanese parents. When he was aged 16 years, his mother was diagnosed with breast cancer. As his father was a shift worker with State Rail, he took over the responsibility for the care and control of his younger siblings. The progression of his mother's disease, and her death in 1996, led to a partial separation of the family when the youngest child was sent back to the Lebanon to be cared for by relatives.

[58] As a consequence of these events, Mawas received counselling for the anger and grief associated with his mother's illness and with the additional responsibilities which he had assumed. Following his mother's death he was for a time suicidal and treated with medication. It was after this event that he began to use drugs, mainly cocaine and ecstasy, as a consequence of which his life began to unravel, eventually leading to him becoming an associate of Kanaan and Karam, although not to the point of being one of the preferred DK Boys who were entitled to a gold ring.

[59] He reported to the Probation and Parole Service that he had tried two apprenticeships but had been unable to settle into any long term employment. Obviously his education was disrupted by the events within the family, and the subsequent further fragmentation within the family when his father and other siblings also returned to the Lebanon.

[60] He first came into contact with the law in 1994, when he was fined in the Children’s Court for an offence of malicious damage. Since then he has received multiple convictions, in Local Courts and in the District Court, for motoring offences, some relatively minor or others which are more serious. The record which he has accumulated, since early 1997 while involving numerous entries, however is not particularly serious. Moreover, in his favour, it is not one involving any incidents of violence.

[61] On 17 April 1997, he was fined, disqualified and ordered to perform 70 hours of community service following convictions for two counts of driving an uninsured vehicle, one count of driving while his licence was cancelled, one count of driving while disqualified, and one count of stating a false name and place of abode. By reason of his unsatisfactory performance of the CSO he was ordered to serve two month’s periodic detention, which was later increased to three months periodic detention cumulative upon the periodic detention which was imposed, in the District Court, on appeal for the next serious of the offences mentioned. That periodic detention order was itself later revoked by the Parole Board and replaced by a fixed sentence of 13 weeks, to be served between 4 May 1999 and 2 August 1999.

[62] On 21 August 1997 he was back before the Local Court on further charges of driving an unregistered and uninsured motor vehicle, driving in a manner dangerous and driving while cancelled. On appeal to the District Court, on 23 October 1997, a two-year period of supervised recognisance, and 7 months periodic detention, commencing on 5 November 1997, were substituted. That periodic detention order was also later revoked by the Parole Board, and a further fixed sentence of 13 weeks was imposed to be served between 3 August 1999 and 1 November 1999.

[63] For breaches of the recognisance, he was sentenced on 22 July 1999, to two fixed terms each of 2 months commencing on 22 July 1999 and concluding on 21 September 1999.

[64] On 18 June 1999, he was back before Burwood Local Court on two charges of disqualified driving, one charge of driving in a manner dangerous, and two charges of goods in custody, along with other offences relating to the provision of a false name and place of abode, obtaining a license by a false representation, and fraudulent use or alteration of a license.

[65] For some of these offences he was fined. However, for one offence of disqualified driver and one offence of goods in custody, he was sentenced to fixed terms of 3 months each, to commence on 4 May 1999 and to conclude on 3 August 1999. For the other offences of disqualified driver, and for one offence of driving in manner dangerous, he was sentenced to concurrent fixed terms of 182 days also to commence on 4 May 1999, and to expire on 1 November 1999.

[66] As a consequence of this somewhat complex history it appears that he was still serving a sentence or sentences for unrelated matters between 4 May 1999 and 1 November 1999. He was arrested for the present offence on 17 September 1999, and on another matter which is still outstanding on 1 June 1999, and bail was refused on both matters.

[67] I am of the view, taking into account the totality principle, that it would be appropriate to commence the sentence which should be imposed for the present offence, on and from the date of arrest, namely 17 September 1999.

[68] The custody reports placed before me show that, since being placed into custody in 1999, Mawas has accumulated some 13 internal charges, recorded in Exhibit AP, relating to fighting, abusive language, threatening behaviour and language, intimidation, unauthorised property, obstruct correctional officer, resist/impede search, as well as other lesser disciplinary breaches. The last such entry was 14 April 2002. In part the explanation for these breaches may lie in the inevitable problems which a young prisoner will have in settling into the prison environment, and in the fact that he was, during the relevant period, the subject of repeated moves from one Centre to another. As such they do not necessarily give rise to the concerns which might appear on first impressions.

[69] Mawas was accepted into the High Risk Management Unit at Goulburn Correctional Centre in June 2002, and since that time he has been seen by a psychologist and assessed for anger management. He has agreed to participate in an alcohol and drug assessment, and has indicated a desire to complete his Year 10 School Certificate. His conduct within the unit since that time has been assessed as generally satisfactory, as is confirmed by the Unit 9 Running Sheet. This may be a favourable, although preliminary, sign of him trying to do something more constructive with his life, than that suggested by the past 5 years.

[70] It would appear that his immediate family have now all returned to the Lebanon to live, and he entertains concern for their welfare if they were to return, by reason of the risk of reprisals. Contact is now confined to phone and letter. He has other friends and some community ties. A favourable report from Mr Bader, the Youth Development Officer for the Lebanese Moslem Association, has been provided which depicts him as an essentially good person who had suffered and been significantly affected by his mother's loss.

[71] This impression as to the reason for him going off track has some support from the reports of Dr Westmore and Mr Diment, who have carried out psychiatric and psychological assessments of him in recent times.

[72] Dr Westmore found no evidence of any major depressive or psychotic illness, but drew attention to the fact that he appeared to have become quite an isolated individual by reason of the fact that he was being held on segregation, for reasons which were not readily apparent to him.

[73] Mr Diment similarly noted that his history of drug abuse and lack of purpose in life had led him to an association with "DK's Boys" and to become involved in this group as a form of job. Clinical testing showed that he was somewhat above average on reliable measures of clinical anxiety and depression, probably related to worry over the current proceedings. He thought that there was evidence of him suffering a depressive illness at the time of his mother's illness and death. Otherwise there were no signs of any psychopathology. One test did however show that he was a person who could be influenced by others.

260 The judge did not accede to the Crown’s submission that a life sentence should be imposed on Mawas. He explained his reasons for so concluding as follows:

[76] In the present case Mawas does not have a record for prior violence, nor does he show any signs of psychopathology. The explanation for his participation in this killing lies substantially in the earlier fragmentation of his life, and his descent into the utterly surreal world which Rossini himself identified. As I have earlier observed, although I am satisfied that he was directly involved as a shooter, I am also satisfied that his participation occurred because he was a follower rather than an initiator of the killing.

[77] To some extent I consider that his immaturity led him not to fully appreciate what he had let himself into, and that once caught up in Kanaan's planning it would not necessarily have been easy to walk away.

[78] In all the circumstances I do not consider that the maximum sentence is called for, although the sentence to be imposed must be a significant one, because his level of culpability remains very high.

261 In assessing the complaint now made on behalf of Mawas, it is important to have regard to the manner in which the sentencing proceedings were conducted before the judge. Very little information was provided as to his custodial circumstances. Apart from the material to which the judge referred, namely that Mawas had accumulated thirteen internal disciplinary charges, there was only a letter from Kathleen Crilly from the Legal Branch of the Department of Corrective Services. Ms Crilly stated that Mawas was at the time located at the HRMU at Goulburn Correctional Centre. She said that he then had an “A1” classification — that is, he was an inmate who in the opinion of the Commissioner represented a special risk to good order and security and who should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment: Crimes (Administration of Sentences) Regulation 2001, cl 22(1). She added that he was also designated as an “extreme high security inmate” — that is, he was an inmate who in the opinion of the Commissioner constituted either an extreme danger to other people, or an extreme threat to good order and security: Ibid, cl 25(2).

262 Ms Crilly stated that, whilst classification does pay some regard to security issues, designation is concerned with:

... the level of dangerousness posed by the inmate to other people or to the good order and security of a correctional centre.

Her letter identifies the custodial limitations on a designated extreme high security inmate — as to, generally, visitors (who must complete a criminal record form and whose entry is subject to the Gaol Governor’s approval), the hours of visits, strip-searching of inmates before and after all non-legal contact visits and randomly after legal visits, cell searches, employment only with the approval of the Governor, and no access to oval areas in correctional centres.

263 Counsel who appeared on behalf of Mawas at trial had referred to evidence which suggested his client was feeling isolated because he was being held in segregation. The judge specifically referred to that material. However, counsel made no submissions at all concerning the matter now the subject of complaint. That is no doubt because it was perceived on all sides that the reason for the placement of Mawas in the HRMU was because of the security concerns entertained about him. In those circumstances, he can hardly call in aid the conditions of his custody which are the consequence of his own conduct in custody.

264 In Regina v Hamzy [2004] NSWCCA 243, this Court was also concerned with a case of an inmate who was in the HRMU. Mason P, with whom Levine & Kirby JJ agreed, made the following observations which are relevant to the present case:

[129] In this Court the appellant led evidence relating to his current prison regime. He was placed in the High Risk Management Unit (HRMU) at Goulburn on 14 April 2002. This followed his designation as an extreme high-risk prisoner. The reason for such administrative designation was not established. The HRMU is a harsh regime in which the prisoner has relatively little contact with other inmates. There is a “hierarchy of privileges and sanctions” designed to encourage changes of behavior and attitude.

[130] The Court made it clear to senior counsel for the appellant that it was not prepared to allow the application to develop into a collateral challenge to matters of prison administration. Yet at the end of the day we were left substantially in the dark as to the basis upon which this material was led. As far as the evidence goes, the appellant’s admission to HRMU and the harsh regime there encountered represent the product of an administrative decision taken in light of events having nothing to do with the offences for which the appellant stands convicted. These appellate proceedings are not a proper vehicle for examining the lawfulness of that decision or for reviewing the conditions of imprisonment at HRMU. This was not a case where the sentencing judge proceeded upon a fundamental misconception as to the conditions of imprisonment that caused the sentencing discretion to miscarry.

265 That is not to say that the fact that an inmate is held in the HRMU will never have any significance in the sentencing process. Indeed, in Regina v Penisini [2003] NSWSC 892, Wood CJ at CL, who was also the sentencing judge in the present matter, observed:

[102] I note the submission that, since Penisini is currently held at the HRMU Unit at Goulburn Correctional Centre as an extreme high risk prisoner, and has limited access to other prisoners or programs, special circumstances should be found, justifying a reduction in the statutory ratio between the non-parole period and the head sentence.

[103] In this regard evidence was received from Superintendent Stanford, the Operational Head of Security and Investigations with Corrective Services, to the effect that Penisini has been held at the High Risk Management Unit Goulburn, by reason of the nature of the offence, with an A1 classification.

[...]

[105] As Superintendent Stanford’s evidence showed, and as the schedule of the three levels for each of the three programme stages also demonstrated, his confinement to date, and while he works through these programmes, has been, and will continue in the short term to be, considerably more restricted and arduous than that applicable to other main stream prisoners. It includes a greater proportion of time locked in a cell, significantly less access to other inmates, reduced buy-ups, greater security in relation to contact visits and escorted movements, reduced access to other activities and employment, and a degree of curtailment of various other less significant privileges and opportunities otherwise available to serving prisoners.

[106] Additionally, in the absence of an education officer in this section of the gaol, it means that the offender cannot be supplied with educational activities, other than limited computer and library access, although it seems that he is about to commence a positive lifestyles programme.

[...]

[110] It may be accepted that the confinement of a prisoner in conditions of greater restriction, without access to the programmes or facilities available to other prisoners, can make his or her imprisonment more arduous, and that such fact may qualify as a special circumstance: Regina v Lewis (1998) 100 A Crim R 361, and Regina v Berry [2000] NSWCCA 451.

[...]

[113] Penisini is not a first time offender, he has proved himself to be dangerous, and it is the severity of his offences that have seen him held to date, in a more secure and arduous way than other offenders. In the light of the evidence from Superintendent Stanford, I do not expect that his custodial position will remain unaltered through the entirety of his sentence, and I see no reason why he should not, in due course, be eligible for the normal re-classification procedures, or why he should be denied access to the usual programmes. However, the fact that he has been held in the HRMU for a considerable period prior to sentence, and will now take some time to progress to A2 status, does justify some minor adjustment as a special circumstance.

By way of contrast, there was no evidence of that kind placed before the judge in the present case concerning the period which Mawas was likely to spend in the HRMU or the circumstances of his confinement in that facility.

266 In the alternative, Mawas seeks to rely on what is described as “fresh” evidence relating to his present custodial circumstances. It consists of a letter from the Superintendent of the HRMU. It is clear from the letter that there are greater restrictions placed on inmates in that unit than is the case for mainstream prisoners, particularly in relation to the persons with whom they may associate. Nonetheless, the material does nothing more than indicate that, at the time of the letter (30 March 2005), Mawas was still in the HRMU. There is nothing to suggest that his circumstances had otherwise changed, or indeed that they had become more onerous.

267 If the affidavit of the solicitor for Mawas annexing this letter were to be accepted as “fresh” evidence, the Crown stated that it intended in reply to rely on a further letter from the Superintendent of the HRMU, in which the following passages appear:

I can advise that inmate Mawas was not referred to the HRMU solely on the basis of his crime/offence, in fact inmate Mawas was classified to Lithgow prior to his transfer to the HRMU. Primarily, inmate Mawas was referred to the HRMU due to security concerns including possession of mobile telephones, threats and intimidation towards staff and in consideration of other intelligence relating to activities within the correctional system.

In respect of this inmate’s classification I can advise that Mawas is managed by the Serious Offenders Review Council (SORC). [...] Serious offenders must be reviewed at least once within each six month period in accordance with the regulation. It was recommended at Mawas’ last review that he remain classified to the HRMU.

That letter gave more detail of what Ms Crilly had stated in her letter: see par [262] supra.

268 The prerequisites for the admissibility of fresh evidence in sentence appeals were identified in Regina v Goodwin (1990) 51 A Crim R 328 at 330, as follows:

(1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing on his decision;

(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

(3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings.

In our opinion, even without reference to the letter in reply, the evidence tendered by Mawas fails to satisfy those requirements. The letter in reply underlines the inadequacy of the evidence tendered by Mawas.

269 There is no substance to the ground of appeal on which Mawas relies. Because of the length of the sentence which was imposed on Mawas, it is nevertheless appropriate to grant an extension of time within which to file the application for leave to appeal, and to grant leave to appeal. However, we are not satisfied pursuant to s 6(3) of the Criminal Appeal Act that a less severe sentence was warranted in law and should have been passed. The sentence imposed was an appropriate one in the circumstances of the case.

270 The appeal by Mawas against the sentence imposed on him is dismissed.

El-Assaad

271 El-Assaad relies on the following grounds of appeal:

(1) The sentence was unduly harsh and severe.

(2) The sentencing judge erred in failing to make sufficient allowance for the youth and background of the offender.

(3) The sentencing judge erred in failing to sufficiently take into account the position the offender was in as a junior member of the gang.

(4) The trial judge erred in finding that the killing was motivated to a considerable degree by greed; failing to distinguish the motive of the accused from that of the co-accused.

(5) The sentencing judge erred in failing to make sufficient allowance for the assistance that the accused had rendered in gaol and the evidence of positive rehabilitation.

(6) The sentencing judge erred in failing to make a finding that the applicant was remorseful.

(7) The sentencing judge erred in failing to take into account the arduous nature of the offender’s custody.

(8) Special Circumstances.

(9) Parity.

Each of those grounds will be dealt with in turn, although consideration of the first ground, which asserts in effect that the sentence was manifestly excessive, will be left until the end so far as it is necessary to deal with it.

272 It is convenient to first set out the judge’s description of the personal circumstances of El-Assaad. It is in the following terms:

[81] This offender was born on 10 November 1977, and is now aged 24 years.

[82] The pre-sentence report shows that he is an Australian born of Lebanese parents, and the eldest child in a family of six children. He is reported to be very family orientated, and to be highly regarded by his parents and siblings. It is said that he occupies an important position in the family structure, and his incarceration has apparently caused his mother and siblings considerable stress.

[83] Between the age of 13 years and 16 years, he and the rest of his family returned to the Lebanon so that the children could attend school, and learn the Lebanese language and culture. Regrettably during this period, in the aftermath of the war, he became accustomed to carrying a gun for self protection. It is said that he was exposed to a considerable amount of anarchy and violence which left its mark on him.

[84] His subsequent return to Australia was described as difficult, as a result of the loss of contact with his former friends. Due to his familiarity with guns and violence, he drifted, on his own account, into an undesirable peer group. He did not complete his education to Higher School Certificate, and instead worked in the family coffee shop. He is said not to have had a history of drug or alcohol abuse.

[85] He presented to the Probation and Parole Service as polite and cooperative, and as having expressed an intention to change his ways, now realising that the most important things he has are his family and religion. He has not caused any real problems while in custody, his record being confined to various incidents of unauthorised possession of property. The Governor of the MRRC and the Block Area Manager have each reported positively in relation to his general attitude and demeanour, and his attendance at the weekly Muslim prayer meetings. They added that he had shown himself to be a role model for other Lebanese inmates with regards to reducing violence and improving cultural harmony within the centre.

[86] Their reports were supplemented by a report from the Islamic Chaplain at the MRRC who indicated that he had demonstrated remorse and repentance, and that he encouraged good behaviour in other inmates and leads the way by example. Whether that remorse and repentance are related to his prior offences or to the present offence remains unclear, it being the case that he has not admitted to his responsibility in relation to the murder of Danny Karam.

[87] His earlier criminal record is not impressive, although again it is not quite as serious as its length might first suggest, largely revolving, as it does, around offences involving motor vehicles.

[88] That record commences with a conviction for break enter and steal, in respect of which a 2 year recognisance was imposed on 9 April 1996.

[89] On 14 May 1997 a 2 year recognisance, and a fine were imposed for an offence of attempt to steal a motor vehicle, which sentence was confirmed in the District Court. For a breach of that recognisance, he was later sentenced in the District Court, on 16 June 1999, to a fixed term of 1 month commencing on 1 June 1999.

[90] In the meantime, he was convicted and fined, in the Local Court on 5 February 1997, for various motoring offences, including drive while cancelled, and drive in a manner-dangerous.

[91] On 28 April 1997 and 15 May 1997 he was again fined in relation to motoring offences, including two offences of driving while cancelled, two offences of stating a false name, one offence of goods in custody, as well as offences of driving an unregistered vehicle, and using an uninsured vehicle.

[92] On 10 March 1998, he was back in the Local Court, on three charges of drive while disqualified, offences which earned him three fixed terms, each of 4 months. On appeal to the District Court on 24 April 1998, these sentences were reduced to sentences of 3 months periodic detention, each to commence on 8 May 1998.

[93] On 4 August 1998 he was convicted and fined for an offence of driving a conveyance taken without the consent of the owner.

[94] On 20 October 1998, he was sentenced to concurrent fixed terms of 1 month and 6 months for offences of goods in custody and steal motor vehicle, which sentences were later confirmed, on appeal to the District Court on 28 July 1999, the sentences being directed to commence on 1 July 1999, and to expire on 31 July 1999, and 31 December 1999, respectively.

[95] On 7 July 1999, he was convicted and sentenced in the Local Court to a fixed term of 6 weeks for an offence of goods in custody, which conviction and sentence were again confirmed on appeal by the District Court on 28 October 1999, the sentence being directed to commence on 28 October 1999, and to conclude on 8 December 1999.

[96] On 24 August 1999, pending the last mentioned appeal, he was fined for further motoring offences involving the use of an uninsured and unregistered vehicle, the fraudulent use of a licence, and stating a false name; additionally he was sentenced to further fixed terms of 6 months, each to commence on 1 June 1999 and to expire on 30 November 1999, for 4 further counts of drive while disqualified.

[97] Then, on 21 December 1999 he was sentenced to concurrent fixed sentences of imprisonment for 20 months, with non parole periods of 15 months, when convicted of counts of possessing an unauthorised firearm and an unregistered firearm. On this occasion, appeals to the District Court were dismissed, on 13 July 2000. These sentences were directed to commence on 1 January 2000 and to expire on 31 August 2001 with the non-parole periods expiring on 31 March 2001. The offences to which they related occurred at a time when he was present with other offenders who became involved in a shoot out with police at White City. He was himself shot during this incident, but it was not alleged that he was responsible for any of the gunfire which occurred.

[98] The net result of this history, which involved a significant adjustment and backdating for various offences, is that although arrested and bail refused for another matter from 1 June 1999, and for the current offence from 17 September 1999, he is to be regarded as having been held in custody in respect of the other offences mentioned between 1 June 1999 and 31 March 2001, that being the date on which he would have necessarily been released on parole for the firearm offences.

[99] Having regard to the principle of totality, however, it similarly appears appropriate to backdate the sentence for the present offence to the date of arrest, namely 17 September 1999.

273 The judge also declined to impose a life sentence on the applicant El-Assaad. He did so essentially for the same reasons as he did in relation to Mawas, and also because “his participation was less heinous” than those who actually shot Karam and killed him The judge then explained his reasons for arriving at the sentence which he ultimately imposed:

[103] On the more favourable side is his absence of any prior record for violence, or signs of psychopathology of the kind which would suggest that he poses any continuing danger to law abiding members of the community. On the contrary, there are some signs that he can make a positive contribution while within the prison system, and that the prospects for rehabilitation are reasonable.

[104] Again, I believe that it was his immaturity, and early exposure to violence and anarchy, which led to him being attracted into the world established by Karam and Kanaan, and then foolishly following them, in their drug dealing activities, and in the murderous plot hatched by Kanaan.

274 We return now to consider the individual grounds of appeal taken by El-Assaad.

Youth and background of the offender

275 The complaint was that the judge failed to make sufficient allowance for this fact.

276 The judge was well aware that El-Assaad was a youth — he was in his early 20’s during his association with Kanaan and the deceased Karam. The judge was also aware of his somewhat chaotic background. The judge specifically referred to the immaturity of El-Assaad and how it had led him into the surreal world of Kanaan, Karam and others to whom he was clearly beholden.

277 The judge correctly observed that, because the offenders had conducted themselves in the same fashion as mature adults would have, they were not entitled to “any significant diminution in their objective criminality”. The emphasis on rehabilitation rather than general deterrence where the offender is a youth (Regina v GDP (1991) 53 A Crim R 112 at 116) is subject to the qualification that, where a youth conducts himself in a way an adult may conduct himself and he participates in a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing: Regina v Pham (1991) 55 A Crim R 128 at 135; Regina v Hawkins (1993) 67 A Crim R 64 at 66; Regina v Gordon (1994) 71 A Crim R 459 at 469; Regina v Bus (BC9501880), CCA, 3 November 1995, at 14; Regina v AEM & Ors [2002] NSWCCA 58 at [97]–[98]; Regina v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [28]–[30]; Regina v LNT (2005) NSWCCA 307 at [31]–[32].

278 That principle applies in the present case. The ground of appeal is without substance, and it is rejected.

The position of the offender as a junior member of the gang

279 The essence of the submission is that Kanaan, Gea Gea, Rossini and Karam were brutal men who would not hesitate to resort to violence. It was submitted that “[t]here seems no way one could just leave the gang”. The evidence established that the applicant was a willing party to a joint criminal enterprise to kill Karam. There is no suggestion in the evidence before the court, and no attempt has been made to produce further evidence, that El-Assaad was in any way prevented from leaving “the gang”.

280 Nevertheless the judge concluded, in relation to Mawas, that “to some extent his immaturity led him not to fully appreciate what he had led himself into, and that once caught up in Kanaan’s planning it would not necessarily have been easy to walk away”. Those findings were incorporated into the reasons for sentencing El-Assaad as well, since the judge observed that, “for essentially the same reasons as those which applied to Mawas”, he would not impose a life sentence on El-Assaad. The finding the judge made in favour of El-Assaad fully acknowledged the matter which it is now claimed he failed sufficiently to take into account.

281 As the judge made that finding in favour of both El-Assaad and Mawas, and as he used the sentence imposed on Mawas as the basis for his consideration of the sentence to be imposed on El-Assaad, there is nothing in the sentencing process which supports the claim that the judge failed to take this matter sufficiently into account for both of them. This ground of appeal is rejected.

Distinguishing El-Assaad’s motive from that of his co-accused

282 Particular complaint was made of the judge’s conclusion that “this was a deliberate assassination which was carried out under Kanaan’s leadership, substantially in order to advance the interests of the prisoners in ongoing criminal activities”. It was submitted that El-Assaad should not have been included in that motive.

283 The context in which that statement was made clearly indicates that the judge’s primary focus was, understandably, on Kanaan’s motivation, not that of the other members of the joint criminal enterprise. He went on to find:

The principal motive of Kanaan and his recruitment of others into the plan, I am satisfied, was to acquire an entrenched position for his subgroup in the trade of narcotics, and to increase their standing within that section of the criminal milieu which chooses to devote itself to that area of activity. A subsidiary motive was his sense of grievance at not being properly treated by Karam.

However, given the relationship between Kanaan and his recruits (including El-Assaad in that “subgroup”), it was inevitable that their participation would be influenced by whatever it was that drove Kanaan and more particularly by what Kanaan wanted done. Moreover, the judge had earlier referred to evidence “that they [including El-Assaad] were getting tired of the way in which [Karam] was treating them, relating in particular to the outbursts of violence and abuse for which he was well-known”.

284 The applicant was unable to point to any evidence which might have suggested that his motivation was somehow different to that which the judge expressed. The ground of appeal is rejected.

Assistance rendered and positive rehabilitation

285 The complaint is that the judge failed to make sufficient allowance for these matters. El-Assaad points to reports, provided by the Governor and another senior officer of the Metropolitan Remand & Reception Centre at Long Bay Gaol, concerning the favourable progress and positive contribution which he had made whilst in that gaol. The judge referred in some detail to that evidence, and he concluded that “there are some signs that he can make a positive contribution while within the prison system, and that the prospects for rehabilitation are reasonable”. Those remarks, when read together with the rest of the judge’s findings, certainly do not support the complaint that insufficient weight was given to these matters.

286 This ground of appeal is rejected.

Remorse

287 The complaint was that the judge failed to make a finding that El-Assaad was remorseful. The judge specifically referred to the evidence that the applicant had expressed an intention to change his ways. He also referred to the report of the Islamic Chaplain at the MRRC as having “indicated that [El-Assaad] had demonstrated remorse and repentance”. That was the extent of the evidence on this subject. Because El-Assaad had continued to maintain his innocence, the judge was entitled to qualify his acceptance of the remorse to which the Chaplain had referred by his comment that El-Assaad had “not admitted to his responsibility in relation to the murder of Danny Karam”.

288 The ground of appeal has no substance, and it is rejected.

Arduous nature of the offender’s custody

289 The complaint was that the judge had failed to take this fact into account. El-Assaad also has an A1 classification and he too has been designated as an extreme high security inmate: see letter relating to El-Assaad from Ms Crilly of the Legal Branch of the Department of Corrective Services, dated 23 July 2002. As already stated (at par [261] supra), such an inmate is one who in the opinion of the Commissioner (a) represented a special risk to good order and security and who should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment, and (b) constituted either an extreme danger to other people, or an extreme threat to good order and security.

290 El-Assaad spent three months in total segregation at an early stage of his period in custody. It is clear from the letter from Ms Crilly that El-Assaad was no longer in the HRMU at the time of the sentencing process. There is no evidence as to whether he will be returned to the HRMU. Nor is there any suggestion that El-Assaad is otherwise serving in conditions of custody other than those applicable to inmates with his designation. No further evidence has been placed before this Court as to the nature of his present custody.

291 As stated in relation to Mawas (at par [263] supra), El-Assaad can hardly call in aid the conditions of his custody which are the consequence of his own conduct in custody: see Regina v Hamzy at [129]–[130], quoted in par [264] supra. In the circumstances, it has not been demonstrated that the sentencing judge has fallen into error. This ground of appeal is rejected.

Special circumstances

292 Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires the sentencing judge when imposing a term of imprisonment on an offender — except in the circumstances identified in s 45 — to set a non-parole period (that is, the minimum period for which the offender must be kept in detention in relation to the offence) of such a length that the balance of the term is not greater than one-third of the non-parole period unless there are special circumstances for the balance of the term being more than one-third. In mathematical terms, therefore, the non-parole period may not be less than three-quarters of the total term of the sentence unless the judge decides that there are special circumstances warranting such a departure from that statutory requirement.

293 To that extent, the statutory ratio operates as a fetter or constraint on the exercise of the sentencing judge’s general discretion as to the structure of the sentence to be imposed: Regina v Simpson (2001) 53 NSWLR 704 at [69]. It is, however, clear that this fetter or constraint operates only to prevent the balance of the term being greater than one-third of the non-parole period; there is no restriction on the balance of the term being less than one-third: Ibid at [70]. See, for example, Regina v Kalajzich, CCA, 2 November 1998, dismissing an appeal from a total sentence of 28 years consisting of a minimum term of 25 years and an additional term of three years (Regina v Kalajzich (1997) 94 A Crim R 41). In the present case, the judge imposed a total sentence of 24 years with a non-parole period of 18 years. The balance of the term was exactly one-third of the non-parole period.

294 The issue of special circumstances does not appear to have received very much attention during the sentencing proceedings, but the judge was required nevertheless to consider the issue, and he did so by finding (at [107]) that such circumstances did not exist in relation to El-Assaad. The judge concluded that “the period of six years during which the prisoner will be potentially eligible for release and supervision on parole is sufficient to enable his reintegration into the community”.

295 It has been submitted by El-Assaad that there were other matters which constituted special circumstances in the case which would have justified a departure from the statutory requirement, and which the judge had not considered. Those identified are the offender’s youth, the fact that it was his first significant gaol sentence, the “significant and impressive” rehabilitation he has exhibited, and the arduous nature of his incarceration “to date and likely to continue”. These taken together are certainly capable of amounting to special circumstances in those cases where they point to the need for a longer than usual period of parole, usually under supervision, in order to assist the offender to reintegrate into the community after serving the non-parole period in custody.

296 El-Assaad has already argued unsuccessfully that the judge failed to consider some of those matters in determining the total period of the sentence. It is, however, clear that the judge considered all of these matters in relation to the issue of special circumstances, because their relevance to the issue of special circumstances was that they pointed to the need for a longer than usual period of parole to enable the offender to reintegrate into the community, and the judge’s decision that he should not alter the statutory ratio was based on his opinion that the six years during which El-Assaad would be on parole was sufficient to achieve that purpose.

297 Simply because there exist matters capable of constituting special circumstances in some cases does not mean that a sentencing judge is obliged to vary the statutory ratio in every case in which those matters exist: Regina v Fidow [2004] NSWCCA 172 at [22]. A submission that special circumstances exist in the particular case requiring a variation of that ratio necessarily focuses attention initially on the length of the balance of the term which is produced by the normal application of that ratio. In the present case, the sentence imposed by the judge meant that El-Assaad would be eligible for release and supervision on parole on 16 September 2017, when he will be almost 40 years old. There can be no doubt that at that stage he will need considerable assistance by way of supervision to ensure that he does reintegrate into the community.

298 The decision by the judge that six years was sufficient for that purpose was open to him in the present case. He was entitled to assume that, if it were thought by the Parole Board to be necessary in this case, an extension of the standard restriction to three years of supervision, imposed by cl 216(1) of the Crimes (Administration of Sentences) Regulation 2001, would be extended pursuant to cl 216(2) to ensure that such a purpose was realised. Even without an extension of the period of supervision, it was open to the judge to decide that six years was sufficient for El-Assaad to reintegrate. That being so, the matters identified by El-Assaad did not constitute special circumstances in this case.

299 There was no error by the judge. This ground of appeal is rejected.

Parity

300 The essential substance of the submission is that the sentencing judge erred in differentiating only to a slight degree between the sentences which were imposed on each of El-Assaad and Mawas. On this issue of parity, there is a difference of opinion in the Court. What follows in pars [301]–[305] represents the view of the majority (Buddin & Hoeben JJ). The dissenting view of Hunt AJA follows at pars [306]–[311].

301 The judge explained his reasons for imposing the respective sentences in the following terms:

[105] I am not persuaded, particularly having regard to his somewhat worse record that there is reason for any significant difference in sentence between him and Mawas. Some small difference is however justified, since he has demonstrated positive signs of a commitment to rehabilitation, and his objective criminality on this occasion was marginally less serious.

The judge had earlier observed:

[101] To some extent his participation was less heinous than that of those who were prepared to discharge their weapons at Karam, although like a wheelman in an armed robbery, or the person who contracts another to kill on his behalf, he was integrally involved in the killing and he played an important role in sending the alert.

[102] It cannot be said that the killing would not have occurred without his participation. Nevertheless, he joined in as an active member of the enterprise, and he knew precisely what was to occur.

302 When the nature of the offences on El-Assaad’s record is examined, which the judge described (at [87] quoted in par [272] supra) as “not quite as serious as its length might at first suggest, largely revolving, as it does, around offences involving motor vehicles”, with the nature of the offences on the record of Mawas, which also largely revolves around motor vehicles, there is (with respect) nothing to justify the description of the former’s record as being “somewhat worse” than that of Mawas. On the other hand, the evidence of the progress of El-Assaad in custody, and of his commitment to changing his ways, weighs in his favour.

303 More importantly, we accept the primary submission of El-Assaad that the judge erred in concluding that his objective criminality was to be properly characterised as being “only marginally less serious” than that displayed by Mawas. True it is that he performed an integral role in the joint criminal enterprise to kill Karam by alerting the shooters of Karam’s imminent arrival in the downstairs area. Nevertheless, in the final analysis, El-Assaad did not participate in firing any of the fatal shots. Moreover, as the judge observed, “it cannot be said that the killing would not have occurred without his participation”.

304 For those reasons, we would uphold this ground of appeal and proceed to re-sentence El-Assaad so as to achieve what we perceive to be “due proportion” between the sentences: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301-302. In re-sentencing El-Assaad we have had due regard to the various factors identified in s 3A of the Crimes (Sentencing Procedure) Act and to those matters in s 21A of the Act which relevantly bear on the present sentencing exercise. For the reasons given by the judge, we would decline to find “special circumstances”.

305 We would accordingly quash the sentence imposed on El-Assaad and in lieu thereof impose the following sentence: a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. The applicant is eligible for release on parole on 16 March 2016.

306 The dissenting view of Hunt AJA is as follows: I agree with the majority that there is little relevant difference between the criminal records of Mawas and El-Assaad. However, and with respect, I do not agree that the evidence of the progress of El-Assaad in custody, and of his commitment to changing his ways, weighs in his favour, or at least to any significant extent. The fact that each of the two men has the same classification and the same designation — whereby each is, in the opinion of the Commissioner, either an extreme danger to other people or an extreme threat to good order and security (see pars [261], [289] supra) — tends to suggest that to whatever degree the conduct of El-Assaad differs from that of Mawas it is not a matter of much significance in the sentencing process.

307 As to the conclusion by the judge that the objective criminality of El-Assaad was “only marginally less serious” than that displayed by Mawas, it is important to have regard to the elaboration of the judge’s views on this issue during the submissions made on sentencing (at pp 42-43). In answer to the submission by counsel then appearing for El-Assaad that there was “a fairly clear distinction between Mr El-Assaad and the others on the objective facts”, the judge responded “It is not dissimilar to armed robbery, where everybody has their role to play”. The judge agreed that it “will be somewhat more serious to be the actual gunman, but I’m not sure there is a huge difference.” He said:

[El-Assaad] is only marginally removed. In any event, I don’t know that you can dress it up any more than make the distinction, difference between the trigger man or the man on the look out, or [who] sets the scene up.

The judge also pointed out:

In the sense [El-Assaad] sends the signal to give them the opportunity to get to the right spot at the right time, maybe to head off the [...] possibility of Karam seeing them coming and being able to use [his own] weapon. The trigger man has the greater share of responsibility than initially in the enterprise.

The words omitted in that quotation appear to have been a mishearing by the court reporter.

308 El-Assaad took part in the planning of the murder with the other appellants and Gea Gea from the beginning of the enterprise. Whereas Mawas initially doubted whether it was necessary to kill Karam, El-Assaad (so far as the evidence goes) expressed no such doubts. As such a doubt would be a matter in mitigation, he bore the onus of proof in relation to it. In all the circumstances of the case, the views expressed by the judge quoted in the last paragraph and his finding that El-Assaad’s objective criminality was only marginally less serious than that of Mawas were open to him on the evidence.

309 Whilst I would myself have reflected the difference between the respective degrees of criminality on the different parts of El-Assaad and Mawas with a slightly lower sentence than that imposed by the judge on El-Assaad, such a view does not demonstrate appealable error on the judge’s part. We are told frequently that there is no single, correct, sentence for the specific conduct involved in the particular case. That is why s 6(3) of the Criminal Appeal Act has been interpreted as requiring this Court to be satisfied “positively” that “some other sentence [...] is warranted in law and should have been passed” before upholding an appeal against sentence: Regina v Simpson at [79]; Regina v Johnson [2005] NSWCCA 186 at [27]–[34].

310 It remains for me to deal with the first ground taken by El-Assaad, that the sentence was unduly harsh and severe. The submission in support of this ground was succinctly, but unhelpfully, expressed: “It is submitted that in all the circumstances the sentence was unduly harsh and severe”. I have taken the reference to “the circumstances” as being to the matters on which the other grounds were based. As I have already rejected each of those other grounds, I may be equally succinct. The sentence imposed was within the range for a crime correctly described by the judge as an assassination motivated by greed, carried out with considerable pre-meditation, and callous and cold-blooded in character. That description applies to El-Assaad as much as it does to the other appellants. The sentence he received was well deserved. I would reject this ground as well.

311 I am, with due respect to the majority, not persuaded that the judge erred, or that a less severe sentence was warranted in law and should have been passed, as required by s 6(3) of the Criminal Appeal Act. I would grant leave to appeal against the sentence, but dismiss the appeal.

Orders

312 The following orders are made:

1. The appeal against conviction by each of the appellants is dismissed.

2. The application by the appellant Kanaan to defer an application for leave to appeal against sentence is refused.

3. The application by the appellant Mawas for an extension of time within which to seek leave to appeal against sentence is granted, leave to appeal is granted but the appeal against sentence is dismissed.

4. The application by the appellant El-Assaad for leave to appeal against sentence is granted and (by majority) the appeal against his sentence is allowed. The sentence imposed in the Common Law Division is quashed, and in lieu thereof the appellant El-Assaad is sentenced to a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. He is eligible for release on parole on 16 March 2016.

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LAST UPDATED: 13/04/2006