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Court of Criminal Appeal 25 May 2022

Majeed v R

[2022] NSWCCA 105

Assault & violenceTheft & property

Citation: Majeed v R [2022] NSWCCA 105
Court: Court of Criminal Appeal, NSW
Date: 25 May 2022
Judge(s): Macfarlan JA (principal judgment); N Adams J; Dhanji J (both agreeing)

Background

The appellant was tried jointly with two co-accused in the District Court at Sydney in late 2019. The charges arose from a series of robberies and assaults in inner Sydney suburbs on three consecutive evenings in October 2017. The appellant was convicted on two counts: robbery in company (Count 3, relating to an incident in Wollstonecraft on 10 October 2017) and assault with intent to rob in company causing wounding (Count 4, relating to an incident in Mosman on 11 October 2017). He was sentenced to an aggregate term of 11 years' imprisonment with a non-parole period of six and a half years.

The Crown's case rested heavily on the evidence of a co-accused who had pleaded guilty before trial and gave evidence for the prosecution. That co-accused, referred to throughout as Mr Mariz, admitted to being the driver of the vehicle used in all four incidents and received a sentence discount for his cooperation and willingness to testify. Neither victim could identify the appellant, and no physical evidence found on or near the appellant connected him to either offence. The only item linked to the robberies, a bag of stolen goods, was found under the seat of the front passenger, not the appellant.

In July 2021 the Court of Criminal Appeal had already quashed the convictions of one of the other co-accused, Mr Sakhra, on relevantly similar grounds, finding that Mr Mariz's evidence was so unreliable that it could not sustain those guilty verdicts. The appellant then pursued the same ground of appeal: that his own convictions were also unreasonable for the same reasons.

  • Whether the jury's guilty verdicts on Counts 3 and 4 were unreasonable, in the sense that it was not open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt on the evidence presented.
  • Whether the evidence of the driver, Mr Mariz, the sole witness connecting the appellant to the offences, was sufficiently reliable to support the convictions.
  • Whether, if the convictions were quashed, verdicts of acquittal (rather than a retrial) should be entered.

Decision

Macfarlan JA conducted an independent assessment of the case against the appellant, notwithstanding the Crown's concession that it would be open to the Court to find the verdicts unreasonable. His Honour concluded that the verdicts were in fact unreasonable and that the convictions had to be quashed.

The entire Crown case against the appellant depended on the jury accepting Mr Mariz's evidence as proof beyond reasonable doubt that the appellant participated in the two incidents. No victim identified the appellant. No objective evidence, whether physical, forensic, or through CCTV, placed him at either scene. The appellant's own record of interview stated he was at home on the night of the Count 3 robbery, and there was nothing to contradict that account other than Mr Mariz's testimony.

Mr Mariz's evidence was found to be deeply unsatisfactory. Even before formal leave was granted to cross-examine him, his evidence was vague and equivocal. On Count 3, he could say only that "either" the appellant or Mr Sakhra had got out of the car with Mr Barzani on the third or fourth occasion, and that on each stop someone always remained in the vehicle. On Count 4, he said the appellant "used to help" Mr Barzani, without specificity. This ambiguity, combined with the serious credibility and reliability concerns identified in the earlier Sakhra decision, meant his evidence could not rationally ground a finding of guilt beyond reasonable doubt.

The Court entered verdicts of acquittal rather than ordering a retrial. The Crown did not oppose that course, consistent with the approach taken in the earlier Sakhra decision, where the same outcome had followed.

Orders Made

  • Time for filing the notice of appeal extended to the date it was filed.
  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on Counts 3 and 4 of the indictment quashed.
  • Verdicts of acquittal entered in favour of the appellant on Counts 3 and 4.

Key Takeaways

  • Where the entirety of the Crown case rests on a single witness whose evidence is vague, internally equivocal, and undermined by credibility concerns, a resulting conviction may be set aside as unreasonable, even allowing for the jury's advantage in seeing and hearing witnesses firsthand.
  • A prior appellate decision finding the same witness unreliable in related proceedings carries significant weight in subsequent appeals involving the same factual matrix and the same Crown witness.
  • Absence of victim identification, absence of physical evidence, and an unchallenged alibi in the defendant's interview are factors the Court of Criminal Appeal will weigh when assessing whether a verdict was reasonably open.
  • The Court of Criminal Appeal confirmed that where a verdict is unreasonable and the Crown does not oppose acquittal, verdicts of acquittal will be entered rather than a retrial ordered, consistent with the approach in Sakhra v R [2021] NSWCCA 187.
  • Joint trials do not require uniform outcomes: the appellant's co-accused received different verdicts on overlapping counts, and the unreasonableness of the verdicts against the appellant was assessed on the specific evidence touching him, not the trial result as a whole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 97(1), 98
- Evidence Act 1995 (NSW), ss 38, 165

Cases
- Sakhra v R [2021] NSWCCA 187