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Court of Criminal Appeal 16 October 2024

Barzani v R

[2024] NSWCCA 188

Assault & violenceTheft & property
CRIME APPEALS APPEALS AGAINST CONVICTION UNREASONABLE VERDICT WHERE CO ACCUSED TO THE OFFENDING

Citation: Barzani v R [2024] NSWCCA 188
Court: Court of Criminal Appeal, New South Wales
Date: 16 October 2024
Judges: N Adams J, Chen J, Rigg J

Background

The applicant stood trial in the District Court alongside two co-accused on a series of armed robbery and wounding offences committed over three days in October 2017 in Sydney. The offences involved robberies at knifepoint and in company, with victims in North Sydney, Wollstonecraft, and Mosman. The applicant was convicted by a jury on four counts and sentenced to an aggregate term of 13 years imprisonment with an 8-year non-parole period.

The Crown's case relied heavily on a key witness, Rahma Mariz, who had pleaded guilty to the same offences and testified as the admitted getaway driver. Mariz implicated the applicant as a perpetrator across all counts. Mariz received a combined sentencing discount of 50 per cent reflecting his guilty pleas and cooperation as a witness.

After the applicant's conviction, each of his two co-accused (Sakhra and Majeed) separately appealed to the Court of Criminal Appeal, and both appeals succeeded. In those earlier decisions, the Court found serious difficulties with Mariz's evidence that undermined his credibility and reliability. The present application arose from the applicant's own appeal, filed approximately four and a half years after conviction, seeking to benefit from those earlier findings.

  • Whether the verdicts of guilty on all four counts were unreasonable within the meaning of the Criminal Appeal Act 1912 (NSW)
  • Whether the credibility findings made about Mariz's evidence in the co-accused's earlier appeals should equally invalidate the applicant's convictions
  • Whether corroborating circumstantial evidence for counts 1, 2, and 3 distinguished the applicant's position from that of the co-accused
  • Whether the Crown case on count 4 depended so heavily on Mariz's uncorroborated evidence that the conviction could not stand

Decision

The Court granted an extension of time to file the notice of appeal, and granted leave to appeal. However, the appeal succeeded only in part. The convictions on counts 1, 2, and 3 (the armed robberies of three victims, MC, Mr Shin, and Mr Boyle) were upheld. The conviction on count 4 (assault with intent to rob Mr Bush) was quashed and a verdict of acquittal entered in its place.

On the question of unreasonable verdict in a circumstantial case, the Court confirmed that the correct approach is to weigh all circumstances together rather than examine each piece of evidence in isolation. The cumulative force of the evidence must be assessed, and an appellate court must consider whether it was open to the jury to draw the ultimate inference of guilt to the criminal standard. A piecemeal approach, assessing each strand of evidence separately, is incorrect.

The Court distinguished the applicant's position from that of the co-accused in relation to counts 1 to 3. The earlier appeals had succeeded because the Crown case against Sakhra and Majeed rested solely on Mariz's evidence, with no objective supporting material linking either of them to the offending. By contrast, the case against the applicant on counts 1 to 3 was supported by substantial corroborating evidence. That evidence included: victim descriptions matching the applicant; traffic management photographs; forensic DNA evidence linking the applicant to a lighter found at the scene of count 2; and, critically, the applicant being found in possession of the victims' stolen property upon arrest. The Court also noted that a finding of difficulties with a witness's evidence does not compel rejection of all of that witness's testimony, and that inconsistency alone does not make a verdict unreasonable.

On count 4, the position was different. The Crown case on that count depended upon Mariz's evidence of the applicant's presence and participation, with no comparable objective corroboration. Because this Court had already assessed Mariz's evidence as having serious difficulties in precisely those circumstances, namely where no objective support existed, the conviction on count 4 could not stand.

Orders Made

  • Time for filing the notice of appeal extended to 30 July 2024
  • Leave to appeal granted
  • Appeal against conviction on count 4 allowed; appeal on counts 1 to 3 otherwise dismissed
  • Conviction on count 4 quashed; verdict of acquittal entered on count 4
  • Sentence imposed in the District Court on 30 July 2020 quashed
  • Matter remitted to the District Court for re-sentencing on counts 1 to 3
  • Matter listed for mention before Judge Pickering SC on 15 November 2024 at 9:30am to fix a re-sentence date

Key Takeaways

  • In assessing whether a verdict based on a circumstantial case is unreasonable, an appellate court must weigh all the circumstances together, not examine individual pieces of evidence in a piecemeal fashion, drawing on Coughlan v The Queen (2020) 267 CLR 654 and R v Hillier (2007) 228 CLR 618.

  • Credibility findings made against a shared Crown witness in a co-accused's earlier appeal do not automatically produce the same outcome for a different accused. The presence or absence of corroborating objective evidence is a critical distinguishing factor.

  • A finding that a witness's evidence has serious difficulties warranting disbelief does not require rejection of every piece of that witness's testimony. Inconsistent evidence does not, without more, make a conviction unreasonable.

  • Where a conviction rests entirely on the testimony of a witness whose credibility has been assessed as seriously flawed, and there is no objective evidence independently linking the accused to the offending, the Court of Criminal Appeal confirmed that such a conviction cannot be sustained.

  • Possession of a victim's property by an accused upon arrest can carry significant weight in a circumstantial Crown case, particularly where the accused's explanation for that possession was open to rejection by the jury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 97(1), 98
- Criminal Appeal Act 1912 (NSW)

Cases
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Coughlan v The Queen (2020) 267 CLR 654
- Dansie v The Queen (2022) 274 CLR 651
- Lang v The Queen (2023) 97 ALJR 758
- M v The Queen (1994) 181 CLR 487
- Majeed v R [2022] NSWCCA 105
- Palmer v R [2018] NSWCCA 205
- R v Baden-Clay (2016) 258 CLR 308
- R v Davidson (2009) 75 NSWLR 150
- R v Hillier (2007) 228 CLR 618
- R v Keenan (2009) 236 CLR 397
- RM v R [2024] NSWCCA 148
- Sakhra v R [2021] NSWCCA 187