Majeed v R [2022] NSWCCA 105

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Majeed v R [2022] NSWCCA 105 Hearing dates: 9 May 2022 Date of orders: 25 May 2022 Decision date: 25 May 2022 Before: Macfarlan JA at [1]; N Adams J at [39]; Dhanji J at [40]. Decision: (1) Extend the time for filing the applicant's notice of appeal to the date upon which it was filed. (2) Grant leave to appeal. (3) Allow the appeal. (4) Quash the convictions of the applicant on Counts 3 and 4 of the indictment. (5) In lieu thereof, enter verdicts of acquittal in favour of the applicant on Counts 3 and 4 of the indictment. Catchwords: CRIME — appeal against conviction — whether jury's verdicts unreasonable — one count of armed robbery and one count of assault with intent to rob — victims did not identify appellant — no objective evidence connecting appellant with offences — Crown case dependent on evidence of a co-accused who was the driver of the vehicle — driver's evidence unsatisfactory — not open to jury to accept driver's evidence as proving appellant's guilt beyond reasonable doubt — convictions quashed and verdicts of acquittal entered Legislation Cited: Crimes Act 1900 (NSW), ss 35(3), 97(1), 98 Evidence Act 1995 (NSW), ss 38, 165 Cases Cited: Sakhra v R [2021] NSWCCA 187 Category: Principal judgment Parties: Noor Ali Majeed (Applicant) Regina (Respondent) Representation: Counsel: A Moutasallem (Applicant) A Morris (Respondent)

Solicitors: Peter Ayoub & Co (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2017/308470 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 4 December 2019 Before: Pickering SC DCJ

Judgment 1. MACFARLAN JA: Between 7 November and 4 December 2019 Mr Noor Ali Majeed, the applicant, stood trial in the District Court at Sydney before a judge and jury. He was charged with one count of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW) (Count 3) and one count of assault with intent to rob while in company and causing wounding, contrary to s 98 of the Crimes Act (Count 4), with an alternative to Count 4 of reckless wounding in company contrary to s 35(3) of the Crimes Act (Count 5). He was tried jointly with two co-accused, Mr Jutyar Barzani and Mr Usman Sakhra, on charges concerning robberies and assaults on the evenings of 9, 10 and 11 October 2017. 2. On Count 1 (on which the applicant was not charged) Mr Barzani was found guilty and Mr Sakhra was found not guilty by a directed verdict. The Count alleged an armed robbery with wounding in North Sydney on the evening of 9 October 2017 (the victim being Mr Michael Cumming), contrary to s 98 of the Crimes Act. 3. On Count 2 (on which the applicant was also not charged) Mr Barzani and Mr Sakhra were found guilty. The Count alleged an armed robbery with wounding in the same suburb on the same evening (the victim being Mr Sangjun Shin), contrary to s 98 of the Crimes Act. 4. On Count 3, each of Mr Barzani, Mr Sakhra and the applicant were found guilty. The Count alleged a robbery in company in Wollstonecraft on the following day, 10 October 2017, just before 11pm (the victim being Mr James Boyle), contrary to s 97(1) of the Crimes Act. 5. On Count 4, Mr Barzani and the applicant were found guilty, with Mr Sakhra being found not guilty by a directed verdict. The Count alleged an assault with intent to rob in company and causing wounding in Mosman at about 10.40pm on 11 October 2017 (the victim being Mr Kevin Bush), contrary to s 98 of the Crimes Act. 6. Prior to the trial, a further co-accused, Mr Ramah Mariz, pleaded guilty to Counts 1 and 4 and received a 50% discount to his sentence. This included a 25% discount for assistance to reflect his willingness to give evidence at the trial. He admitted that he was the driver of the vehicles used on each of the four occasions the subject of Counts 1 to 5. 7. Following the trial, on 21 February 2020 the applicant was sentenced to an aggregate sentence of 11 years' imprisonment with a non-parole period of 6 years and 6 months. He had been granted bail on 21 January 2020 pending an appeal against his convictions on Counts 3 and 4 and remains on bail. On 16 July 2021 this Court quashed Mr Sakhra's convictions on Counts 2 and 3, on the ground that the verdicts of guilty on those Counts were unreasonable, and entered acquittals. The Court published its reasons for judgment on 11 August 2021 (Sakhra v R [2021] NSWCCA 187: "Sakhra"). 8. The Court found in Sakhra that the Crown case against Mr Sakhra depended upon the jury accepting the evidence of the key Crown witness, Mr Mariz. The Court however found that "there were serious difficulties with Mr Mariz's evidence which undermined his and its credibility and reliability" (at [56]) and consequently quashed Mr Sakhra's convictions. 9. The applicant now appeals on the basis that the verdicts against him were also unreasonable and that his convictions should be quashed for similar reasons to those expressed in Sakhra. The Crown conceded that its case against the applicant depended upon the jury accepting the evidence of Mr Mariz as proving beyond reasonable doubt that the applicant was present at and participated in the Counts 3 and 4 incidents. It also accepted that, for the reasons explained by the Court in Sakhra, it would be open to this Court to conclude that the evidence of Mr Mariz was unreliable and that the verdicts of guilty against the applicant on Counts 3 and 4 were therefore unreasonable. 10. After making an independent assessment of the case against the applicant, I have concluded that the verdicts of guilty against him were in fact unreasonable and that his convictions should therefore be quashed. In light of the Crown's concessions referred to above at [9], my reasons may be expressed more briefly than would otherwise be the case.

The robberies and assaults 1. It was not in issue that the robberies and assaults the subject of Counts 1, 2, 3 and 4 (and the alternative Count 5) occurred at the times and locations alleged by the Crown. What was in issue was the identity of the perpetrators. 2. On Count 1 the Crown alleged that Mr Barzani and Mr Sakhra, whilst armed with an offensive weapon (being a knife), robbed Mr Michael Cumming of a mobile phone and wallet, wounding Mr Cumming whilst doing so. At trial, the jury found Mr Barzani guilty. The jury was however directed to acquit Mr Sakhra because there was no evidence that he had left the vehicle in which Mr Barzani had travelled to the scene of the robbery, if he had been in the vehicle at all. 3. On Count 2, the Crown alleged that, whilst again armed with an offensive weapon (being a knife), Mr Barzani and Mr Sakhra robbed Mr Sangjun Shin of a mobile phone and a wallet and wounded him in the course of doing so. Mr Barzani and Mr Sakhra were found guilty but the latter's conviction was quashed on appeal, as noted above at [7]. 4. In relation to Count 3, the victim, Mr Boyle, gave evidence that he was walking down a road in Wollstonecraft when three men wearing hooded jumpers stepped onto the pathway in front of him. They surrounded him with his back being against a retaining wall. One of the men pointed a knife at Mr Boyle and told him to "hand over" his property. As a result, he handed over a Dell branded work laptop, a mobile phone, an Armani watch and a wallet containing his driver's licence and "bank" cards. He ran down a side street after he was told to "leave" or "hurry up". The Crown alleged that the applicant, Mr Sakhra and Mr Barzani were the three men involved in the robbery. Each was found guilty by the jury but Mr Sakhra's conviction was quashed on appeal, as again noted above at [7]. 5. In relation to Count 4, the victim, Mr Bush, gave evidence that he was approached in the street by two men, stabbed in the shoulder and back and "pummelled" by them, but that his possessions were not taken. The Crown's case was that the two men directly involved were the applicant and Mr Barzani, with Mr Sakhra also criminally responsible on the basis that he was part of a joint criminal enterprise. The jury found the applicant and Mr Barzani guilty but Mr Sakhra received the benefit of a directed verdict of acquittal on the basis that there was no evidence capable of establishing that he had been involved in a joint criminal enterprise.

The arrest 1. About two hours after the Count 4 incident, that is, at about 12.30am on 12 October 2017, police pulled over a silver Honda Civic vehicle on Miller Street, North Sydney. Mr Mariz was the driver, Mr Barzani the front passenger, the applicant the rear offside passenger and Mr Sakhra the rear nearside passenger. The men were removed from the vehicle and searched. Mr Barzani was found to be in possession of a knife. Nothing untoward was found on Mr Sakhra, Mr Mariz or the applicant. 2. The vehicle was searched and a Dell laptop, a laptop charger and three iPhones were found under the front passenger seat, sealed in a plastic shopping bag. When the laptop was opened, a number of cards were also found, including Mr Shin's licence. The four individuals who had been in the vehicle were arrested. Subsequently Mr Boyle identified the items stolen from him. There was no evidence of Mr Cumming's stolen goods ever being recovered.

The evidence against the applicant other than that of Mr Mariz 1. The Crown's concession on appeal that its case at trial against the applicant depended upon the jury's acceptance of Mr Mariz's evidence beyond reasonable doubt was well-founded. The following points are supportive of that concession. 2. As to Count 3, the victim, Mr Boyle, was unable to give any useful description of the men who confronted him and was unable to make a selection at a photo identification parade. 3. In his record of interview, which was tendered by the Crown, the applicant said that he was at home on the night (of 10 October 2017) when the Count 3 robbery occurred. 4. A traffic management image taken on 11 October 2017 at 5.15am, some hours after the Count 3 robbery occurred a little before 11pm on 10 October 2017, showed the Honda Civic, in which the four men were travelling when arrested after the Count 4 assault, travelling southbound across the Sydney Harbour Bridge with a driver and a passenger, but there was no evidence that either was the applicant. 5. Similarly, the victim in respect of the Count 4 assault, Mr Bush, was unable to give a description of the men who confronted him sufficient to inculpate the applicant, nor did his participation in a photo identification process achieve this. 6. The applicant's DNA was identified on the handle of a knife found in the Honda Civic vehicle pulled over by police early on 12 October 2017 but, as the trial judge pointed out to the jury in his summing up, the Crown did not attempt to link the knife to the robbery of Mr Boyle or the assault of Mr Bush (Counts 3 and 4). Moreover, the knife on which the applicant's DNA was present was a kitchen knife whereas Mr Bush's initial description of the knives used in the assault on him was that they were not kitchen knives but looked like daggers. 7. In his record of interview, the applicant said that he was at his home in Liverpool for a barbeque with his brother on the morning of 11 October 2017 (the date of the Count 4 assault) and that he and the other three men travelled to the city for a drive from Liverpool that evening. When asked whether they went to Mosman, he said, "We went a couple of places. We stopped there on the way" but when the officer asked where exactly they stopped, he said, "I don't know the names" because "I never been to the city". He also denied that they did anything criminal, and denied that he knew that Mr Barzani had a knife or that any of the items found in the car were the proceeds of any robberies. 8. In his summing up in relation to Count 3, the trial judge made it clear to the jury that the Crown's case against the applicant was dependent on Mr Mariz's evidence. He did likewise in respect of Count 4, indicating that the Crown relied on Mr Mariz's evidence to prove that it was Mr Barzani and the applicant who were directly involved in the assault, rather than one of the other two. 9. The applicant's presence less than two hours after the Count 4 assault in the vehicle in which the stolen goods were found and the presence of his DNA on a knife that was not sought to be linked to the robberies was insufficient to prove the Crown's case on Count 4 (and a fortiori, on Count 3) without reliance on the evidence of Mr Mariz.

Mr Mariz's evidence 1. As noted in [6] above, Mr Mariz pleaded guilty and received a discount on his sentence for the assistance he would provide in giving evidence against his co-accused. In examination-in-chief at the trial Mr Mariz did not however accept responsibility for his involvement in the offences, stating "I pleaded guilty, because I was driving the car, not because I was participating in what they were doing". The trial judge acceded to the Crown's application under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Mariz as an unfavourable witness. In summing up, the trial judge warned the jury, in accordance with s 165 of the Evidence Act, that Mr Mariz's evidence might have been unreliable, in particular, because he might have sought to shift the blame from himself onto others and downplay his involvement. 2. This Court's decision in Sakhra was concerned with Mr Sakhra's convictions on Counts 2 and 3 at the same trial at which the present applicant, Mr Majeed, was convicted on Counts 3 and 4. As in relation to the applicant, the Crown's case against Mr Sakhra depended on the jury accepting that Mr Mariz's evidence proved Mr Sakhra's involvement in the Counts 2 and 3 robberies beyond reasonable doubt. The Court's conclusion that it did not, because Mr Mariz's evidence was so unsatisfactory that it was not open to the jury to accept it, is therefore of relevance to the present case. Whilst this conclusion and the Court's factual findings (per Leeming JA with Wilson and Ierace JJ agreeing) are not binding on the Court in the appeal presently under consideration (that of Mr Majeed), I have satisfied myself that the findings and observations of Leeming JA are correct, and, insofar as they are applicable to Mr Majeed's appeal, ought to be adopted. 3. In particular I adopt Leeming JA's findings as follows concerning the general credit and reliability of Mr Mariz: "[57] First, early in Mr Mariz's evidence the Crown obtained a direction that he was a hostile witness. On only the 6th page of his evidence in chief, he denied knowing that there had been two robberies on Monday 9 October, with the prosecutor saying (in the absence of the jury) that it was clear that 'he's not making an honest attempt to give evidence'. [58] Secondly, the entirety of Mr Mariz's testimony was given in Arabic and translated by an interpreter. In summing up, the trial judge stated: 'It was difficult also, to be perfectly frank, to know whether the quality of the work done by the interpreter, was also undermining some of the answers given. I say that only from impression. I, of course, do not speak the language of Farsi [sic] to understand it, but it did seem at times that things were lost in translation, to some extent.' [59] That is borne out by my review of the transcript. An example is the following evidence in chief: 'Q. When did you become aware that a robbery had occurred? A; INTERPRETER: After he came back to the car, he was speaking with his friends. I didn't understand what they were talking about. HIS HONOUR: Did you get that, Madam interpreter, or not? INTERPRETER: No, cause he's interrupting me, that's why.' [60] On appeal, the Crown conceded, in my view correctly, that this was a matter that this Court would take into account in considering the reasonableness of the verdict. [61] Thirdly, the trial judge also described Mr Mariz's evidence as 'imprecise' and noted that he tended to speak in general terms; again, this is borne out by the transcript, including by reference to frequent instances where Mr Mariz's answer was not responsive to the question asked. It is not clear whether this imprecision, generality and unresponsiveness were attributable to language or translation difficulties, or to an unwillingness genuinely to answer questions, or both, but these features cast doubt on the reliability of his evidence. [62] Fourthly, Mr Mariz admitted, on the eighth day of the trial and the fourth day of his cross-examination, that he had consumed 'ice' (crystal methamphetamine) on each of 9, 10 and 11 October 2017. He had previously said that for 'three days' he 'did not eat, drink or sleep' and agreed that by the time of his interview with police he had been 'utterly exhausted'. Drug use and exhaustion were capable of having undermined the reliability of his recollections. Indeed, Mr Mariz agreed that his memory had been affected. In addition, these statements were made after he had previously denied criminal responsibility for the offences to which he had pleaded guilty, claimed that his lawyer told him 'you have to say that you're guilty', and claimed to have been 'forced to drive' the vehicle. He went so far as to agree that he had been 'virtually kidnapped'. He also accepted that he lied to police in relation to having been shown a photograph of the victim in count 1, as an explanation for how he knew what the victim looked like. Each of these instances of untruthfulness related to a matter which could have had, or which Mr Mariz might have perceived could have had, a bearing on his criminal responsibility for the offences. This significantly undermines the probative value of his other evidence which might also have sought to diminish his involvement in the offences. An additional motive to lie was that he risked being resentenced if he did not give evidence in accordance with his plea deal." 1. In addition, I adopt what his Honour said in the following section of his judgment concerned with "specific inconsistencies" ([63]–[74]). It is sufficient to refer to the following summary given by the Crown in the present case of the inconsistencies to which Leeming JA referred in that section: "a. Inconsistent evidence as to Sakhra's physical location relative to count 2; b. Inconsistent evidence as to which men got out of the car for count 3 (a count involving the applicant); c. It was noted by Leeming JA at [65] that the inconsistent versions of events put by Mariz detract significantly from the probative value of the version, in respect of each count, on which the Crown relied. d. Mariz had a clear motive to be untruthful in relation to the elements of the offences in issue; namely Sakhra's presence and participation in the robberies. Only if a third man and fourth man had been in the car on the first and second night, respectively, could Mariz claim to have remained in the car while each offence took place and thereby diminish the extent of his own involvement in the commission of the offences. Elements of Mariz's evidence indicated that his involvement in the offences went beyond his being the driver. e. At [67] Leeming JA noted Mariz's confusion in relation to the names of the people who were with him in the car and his answers of 'no' to the question whether the people who committed the first robbery were in the car with him when stopped by police." 1. I make the following additional observations concerning Mr Mariz's credibility and reliability. 2. First, in relation to Count 4, Mr Mariz's evidence was, for the following reasons, inconsistent with that of the victim, Mr Bush. 3. Mr Mariz said that on the night that the Count 4 assault occurred, he was driving the car with the three co-accused in it when he saw a person walking on the street carrying a laptop. He stopped the car about 10 metres away from the person. He said that the applicant, Mr Barzani and Mr Sakhra got out of the car. Mr Sakhra stood next to it whilst the other two approached the victim. Mr Mariz saw Mr Barzani brandish a knife and the person (Mr Bush) fall to the ground with the two co-accused taking a laptop bag from him. 4. On the other hand, Mr Bush gave evidence that he did not have any property taken from him and that he was not carrying a laptop but had a backpack with an iPad in it. He did not give evidence of noticing any cars stopping 10 metres from him, nor of a third person standing next to a car at the time of the attack. He simply said that he was walking along the street when he noticed two men walking towards him. 5. Secondly, in his summing up, the trial judge summarised a number of defence counsels' attacks on Mr Mariz's credibility and reliability, and posed questions to the jury, as follows: 1. The premise on which Mr Mariz was called to give evidence in the Crown case was that he accepted criminal responsibility for the four matters. That premise however turned out to be false when he actually gave evidence. 2. The Crown had to extract evidence from him "by effectively cross-examining their own witness". 3. The trial judge asked the jury: "One of the other things that you might ask yourself is: how satisfactory you think Mariz's evidence is about any of these four offences, are you sure about whether he has seen something or heard something or felt something? Because, sometimes, he says he sees something; sometimes, he says he has heard something. Sometimes, he says he feels something and sometimes, you don't know which of the three there are." 1. Mr Mariz accepted that he lied to police in the first part of his interview. During cross-examination he said that he waited one hour and ten minutes during the police interview to see what the allegations against him were before he put to the police his own version of events. He said, "[b]efore that I wasn't giving the – true answers to the police because I was scared". When the prosecution suggested to Mr Mariz that he thought to himself, "how am I going to wiggle my way out of this", he replied, "Exactly. I was trying to save myself, pull myself out of it". 2. Mr Mariz claimed in his evidence that he was a victim of kidnapping or being detained. It was clear that this was false. 3. Counsel submitted that Mr Mariz "never takes responsibility and easily attributes blame to people". 4. Counsel contended that Mr Mariz's evidence changed from his claiming to have been "kidnapped" to explaining that he was a "consensual ice user". 5. The trial judge posed the following questions to the jury: "Is it a worry that Mariz thought he could be in way bigger trouble than just being a getaway driver? In fact, if he had done the stabbings he clearly would himself have been in much bigger trouble, and he just thought it was a good idea to take some of the blame by being a getaway driver, if that was what he actually did, and – to use Mr Buckman's words – throw the others under the bus, throw the criminal responsibility to the others, save himself, or do himself the best deal, and do the worst deals for the others?". 1. Mr Mariz said that he was not concerned with gaol time. However, the trial judge pointed out that: "[I]t seems to be the opposite of his position, particularly with his family here, pressures in relation to family issues and concerns about not even being guilty for this. In fact, he has got a notice of intention to appeal his conviction and his sentence." The points made by defence counsel and those implicitly made by the trial judge including through his questions, were well-founded. 1. In relation to [35(2)] above, I note that firm evidence as to the applicant's participation only came after the Crown was given leave to cross-examine Mr Mariz. Before then the evidence rose no higher than: 1. As to Count 3: "Q. Did you stop at any stage on the Tuesday night? A. INTERPRETER: Yes. Q. What happened when you stopped? A. INTERPRETER: Same like the first night. When he saw someone on the street, he gets out of the car and finish his, finish his business there, and then comes back, and we drove to some, to another location. Q. On the Tuesday night when you stopped, who got out of the car? A. INTERPRETER: Once or twice Jutyar [Barzani] got out of the car by himself. On the third and fourth time, either Noor [Majeed] or Usmani [Sakhra] got out of the car with Jutyar [Barzani]. And every time was someone in the car, either Usmani [Sakhra] or Noor [Majeed]." 1. As to Count 4: "Q. Who got out of the car when you stopped? A. INTERPRETER: Jutyar [Barzani] and Noor [Majeed] used to help him. Most of the time was Jutyar [Barzani] by himself. Q. How many times did you stop on the third night? A. INTERPRETER: More than one time, but I cannot remember how many."

Conclusion and orders 1. For these reasons, the verdicts against the applicant on Counts 3 and 4 of the indictment were unreasonable. That is, even allowing for the jury's advantage in seeing and hearing the witnesses give evidence, it was not reasonably open to find the applicant guilty of the offences. As I have said, the Crown case depended on Mr Mariz's evidence but his evidence was so unsatisfactory that it was not open to the jury to accept that it established the applicant's guilt beyond reasonable doubt. In these circumstances, the applicant's convictions should be quashed. As occurred in Sakhra, verdicts of acquittal should be entered. The Crown did not contend that they should not. 2. Accordingly, I propose the following orders: 1. Extend the time for filing the applicant's notice of appeal to the date upon which it was filed. 2. Grant leave to appeal. 3. Allow the appeal. 4. Quash the convictions of the applicant on Counts 3 and 4 of the indictment. 5. In lieu thereof, enter verdicts of acquittal in favour of the applicant on Counts 3 and 4 of the indictment. 1. N ADAMS J: I agree with the orders proposed by Macfarlan JA for the reasons provided by his Honour including his adoption of Leeming JA's findings and observations in Sakhra v R [2021] NSWCCA 187 insofar as they are applicable to this appeal. 2. DHANJI J: I agree with Macfarlan JA.

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