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Court of Criminal Appeal 4 March 2020

Sayadi v Regina

[2020] NSWCCA 28

Other
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION LEAVE TO APPEAL GRANTED APPEAL DISMISSED APPLICATION NOT PRESSED

Citation: Sayadi v Regina [2020] NSWCCA 28
Court: Court of Criminal Appeal
Date: 4 March 2020
Judges: Payne JA, Beech-Jones J (with whom Payne JA agreed), N Adams J

Background

The appellant was tried alongside four co-accused in the District Court on charges arising from the September 2016 abduction of a Chinese businessman who had travelled to Australia to explore an education-related business venture. The victim was lured to a restaurant in Blakehurst under false pretences, seized by masked men, and detained for approximately 39 hours across multiple locations, during which he was subjected to serious physical abuse and threats while money was demanded from him.

The Crown case against the appellant on the kidnapping count was largely circumstantial. It relied on mobile phone data linking him to the area at the relevant time, text messages between him and co-accused, his use of a distinctive van said to have been part of the convoy involved in the abduction, and his departure from Australia to Turkey shortly after the events. On a separate count of breaking, entering and stealing, CCTV footage showed the appellant entering the victim's hotel room and leaving with the victim's luggage, which the appellant admitted to but claimed was a mistake.

The jury convicted the appellant on the kidnapping count (count 1) and the hotel room break-in count (count 3), and he was sentenced to eight years and three months' imprisonment with a non-parole period of five years and six months. His appeal to the Court of Criminal Appeal raised four grounds, focused principally on events that occurred late in the trial when the Crown sought to call an additional witness after the Crown Prosecutor had commenced his final address.

  • Whether the trial judge erred in permitting the Crown to call a further witness, a Telstra engineer, after the Crown Prosecutor had already commenced his final address to the jury
  • Whether the trial judge erred in failing to redact, or limit the use of, evidence that had been admitted at trial without objection
  • Whether the trial judge erred in failing to decide an application by counsel for the appellant to discharge the jury
  • Whether leave was required for grounds 3 and 4, given that they did not raise questions of law alone

Decision

Grounds 1 and 2: Calling a further witness after closing addresses began

The core controversy arose from ambiguous mobile phone evidence. The Crown's case relied partly on evidence that the appellant's phone was connected to ("served by") a cell tower near the kidnap location, a concept that indicates proximity to a tower but does not pinpoint the phone's exact location. The trial judge permitted the Crown to call a Telstra engineer, Mr Borg, after the Crown Prosecutor had already begun his address, in order to clarify this technical evidence. Beech-Jones J found no error in this course. A key factor was that the calling of the witness was prompted, at least in part, by counsel for the appellant himself initially encouraging the course, before reversing his position the following day and opposing it. Given the limited scope of Mr Borg's evidence and the direction the trial judge gave to the jury following it, no miscarriage of justice resulted.

Ground 3: Failure to redact or limit use of exhibits

The appellant argued that the trial judge should have retrospectively redacted or restricted the use of exhibits and related evidence that had been admitted without objection. The Court of Criminal Appeal rejected this argument. The trial judge's refusal to redact or limit that evidence flowed directly from her correct ruling on the decision to call Mr Borg. The Court noted the irony that the only real prejudice counsel for the appellant had identified arose from a line of cross-examination that counsel himself had pursued. Leave to raise this ground was granted, but the ground was dismissed.

Ground 4: Failure to decide a discharge application

This ground was not addressed in the appellant's written submissions and was, in any event, found to be without substance. The application for discharge had not in fact been pressed at trial. Counsel for the appellant had abandoned it in favour of the application to redact or limit the exhibits. Because no application was actually pursued, there was no decision that could have been wrongly withheld. Leave to raise this ground was refused.

Orders Made

  • The appellant was granted leave to raise grounds 1, 2 and 3 of the Notice of Appeal
  • The appellant was refused leave to raise ground 4 of the Notice of Appeal
  • The appeal against conviction was dismissed

Key Takeaways

  • A trial judge retains a discretion to allow the Crown to call further witnesses after closing addresses have commenced, and no error arises from exercising that discretion where the additional evidence is limited in scope and an appropriate direction is given to the jury.
  • Where counsel for an accused initially encourages a course of action at trial and then reverses position, that conduct is a relevant consideration when the appellate court assesses whether any miscarriage of justice resulted from the trial judge's ruling.
  • No obligation arises on a trial judge to retrospectively redact or limit the use of evidence that was admitted without objection at trial, particularly where the only identified prejudice flowed from the accused's own conduct at trial.
  • In dismissing the jury discharge ground, the Court of Criminal Appeal confirmed that an appellate complaint about a trial judge's failure to decide an application cannot be sustained where that application was in fact abandoned and not pressed by the applicant's own counsel.
  • Leave to appeal is required for grounds that do not raise a question of law alone under the Criminal Appeal Act 1912, and grounds that are not supported by written submissions and lack substantive merit are liable to be refused leave.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 86(3), 112(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW)

Cases
- Olivieri v R [2016] NSWCCA 169
- R v MR [2013] NSWCCA 236
- R v O'Driscoll (2003) 57 NSWLR 416; [2003] NSWCCA 166
- Shaw v The Queen (1952) 85 CLR 365; [1952] HCA 18
- The Queen v Chin (1985) 157 CLR 671; [1985] HCA 35
- The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13