Citation: Alexander Zaphir v R [2009] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J
Background
The appellant was convicted in the District Court of assault with intent to rob while in company, an offence under s 97(1) of the Crimes Act 1900. The charges arose from an incident on 25 February 2006 in a residential complex in Pyrmont, where the alleged victim, a 63-year-old pensioner of Chinese ethnicity, was beaten and kicked in circumstances the Crown alleged were motivated by the $2,000 cash he was carrying.
The appellant and his co-accused, who occupied separate townhouses in the same complex, both admitted to a physical altercation with the victim but maintained the victim had initiated it. The co-accused gave evidence at trial; the appellant had given a recorded police interview that was played to the jury.
Following conviction, the trial judge sentenced both men to periodic detention. The Crown successfully appealed that sentence, and both were re-sentenced to full-time imprisonment. The appellant then separately challenged his conviction.
Legal Issues
- Whether the guilty verdict was unreasonable and could not be sustained having regard to the evidence, within the meaning of the relevant appellate test.
Decision
The sole ground of appeal was that the verdict was unreasonable and unsupported by the evidence. Simpson J, with whom McClellan CJ at CL and Howie J agreed, dismissed that ground after conducting a detailed review of the evidence given at trial.
The primary witness for the Crown, the alleged victim, gave evidence through an interpreter and faced scrutiny on several fronts: his evidence had failed to produce a unanimous jury verdict in at least one previous trial, the interpreter experienced difficulties during the proceedings (at one point acknowledging he was "not myself today" and on another occasion struggling with the victim's dialect), and the victim had not reported the incident to police himself. The Court acknowledged these matters as operating in favour of the appellant.
Despite those difficulties, the Court found that the jury was entitled to accept the victim's account as essentially truthful, particularly given that he was substantially supported by an independent witness, Ms Debbie Isbell. The victim attributed to the appellant the words "money, money, money", described him as searching his pocket, and characterised his conduct as more vicious than the co-accused's. The jury had also received meticulously detailed defence addresses identifying inconsistencies in the prosecution case, and a thorough summing-up by the trial judge.
Simpson J concluded that this was classically a case in which the jury had all relevant evidence and arguments before it and, after due consideration, accepted the prosecution case. Having regard to the evidence of both the victim and Ms Isbell, the Court found no reasonable possibility that the appellant was merely an innocent bystander caught up in the violence. The appeal against conviction was dismissed.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a verdict will not be set aside as unreasonable merely because witness credibility was contested or the evidence was difficult to assess.
- Difficulties with interpreter performance and a witness's limited English did not automatically undermine a jury's acceptance of that witness as essentially truthful, particularly where independent corroboration existed.
- A prior failure of earlier juries to reach unanimity did not render a subsequent guilty verdict unreasonable, provided the evidence before the later jury could sustain it.
- Where defence counsel has meticulously identified inconsistencies in a prosecution case and the trial judge has addressed those matters in the summing-up, an appellate court is slow to second-guess the jury's resolution of the factual contest.
- Sufficient evidence existed on which a jury could be satisfied beyond reasonable doubt of the appellant's guilt, including specific conduct attributed to him (searching the victim's pocket and uttering words indicating a demand for money) that went beyond mere presence at the scene.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 97(1)
- Evidence Act 1995 (NSW)
Cases:
- R v Bolder; R v Zaphir [2008] NSWCCA 222
- M v The Queen [1994] HCA 63; 181 CLR 487
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82