Prosecution Must Exclude Any Reasonable Hypothesis Consistent with Innocence in Circumstantial Cases

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By Paul Gregoire and Ugur Nedim

Just after 9 pm on 30 December 2016, some teenagers appeared on the balcony of a Pennant Hills unit occupied by Simon Krisenthal and Mark Wordsworth. The teens entered via a staircase leading up from a back street, Pennicook Lane, to the second floor apartment that sits above a shop.

There are varying versions of events, but basically a group of male youths – some of whom can’t be identified as they were under 18 – randomly entered the residence, where some attacked and stabbed Krisenthal on the balcony, while others entered the unit to do the same to Wordsworth.

At 8 pm that evening, CCTV footage captured the youths meeting at Pennant Hills Library carpark, donning masks, and then walking towards a planned brawl at the local Fitness First carpark. Poor quality CCTV footage captures seven, possibly eight, of them entering Pennicook Lane at 9:04 pm.

The same camera at 9:07 pm captures six of the young men walking back in the opposite direction down Pennicook Lane right before the attack.

Camera footage further shows an awaiting car being driven by a young woman, known as EV, at 9:11 pm with at least some of the assailants inside.

Six young men – Mitchell Connor, KC, Mobin Sakieh, SK, BK and MS – along with EV, appeared before the NSW District Court in mid-2019, where they all pleaded not guilty to a number of serious charges, of which the jury found them all guilty.

No distinction between participants and standbys

On 30 September 2019, Sakieh, SK, BK and MS specifically were all found guilty on two counts of wounding with intent to cause grievous bodily harm, contrary to section 33(1)(a) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.

In summing up, NSW District Court Judge Mark Buscombe provided the jury with a document outlining that in regard to a joint criminal enterprise, such as the brutal attack, an accused participates under the law whether they physically join in or just stand close by prepared to step in.

The Crown’s case was that all six males that stood trial had at least entered onto the balcony of the Pennant Hills unit. And following from that position, there was no need to establish which offender had physically been involved or whether they were simply present and prepared to assist.

Not supported by evidence

In May this year, Sakieh, SK, BK and MS appealed their convictions to the NSW Court of Criminal Appeal (NSWCCA) on the ground that the jury’s verdicts were unreasonable, as they couldn’t be supported by the available evidence.

NSWCCA Justice Robert Beech-Jones set out that a limitation in determining this ground is that the weight accorded to witness’ evidence is the “province of a jury”. And another aspect to it is as the case relied on circumstantial evidence, guilt could only be found if no other hypothesis could be put.

The submission put forward by the four appellants’ lawyers was that as only six youths returned down the laneway right before they entered the staircase leading to the balcony above, at least one unidentified male failed to return, which cast a doubt on which of the teens actually participated.

Further it was raised that the evidence as to how many men entered the balcony and the unit varied between, and within, both victims’ evidence. And on assessing their evidence it was possible to show that only four of the youths entered the balcony, while others remained on the street.

A reasonable hypothesis

“As noted, the Crown case was circumstantial and thus the Crown had to exclude any reasonable hypothesis consistent with innocence, although such a hypothesis has to be more than a bare possibility or mere conjecture,” Justice Beech-Jones explained.

His Honour went on to say that the hypothesis that one of the appellants walked up Pennicook Lane and didn’t return, given the CCTV evidence was reasonable. And the realistic reason put for one of the group not returning, was that they continued on to the fight in the Fitness First carpark.

So, based on this, “the jury must, as distinct from might, have entertained a doubt about their guilt”, the justice found. Therefore, the evidence available was not capable of establishing beyond a reasonable doubt that all four appellants were involved.

Evidence beyond doubt

However, his Honour went on to explain that while the evidence so far explored places Sakieh in the same boat as SK, BK and MS, further evidence showed otherwise.

During the trial, a number of intercepted calls that involved Sakieh and took place after the attack were tendered as evidence. And these calls contain statements that “arguably” place him on the unit’s balcony during the attack.

A call that took place in July 2017 has Sakieh stating that he “didn’t do jack shit” and when asked if he was present at the incident, he states, “maybe”. While a second call the following month has Sakieh stating that he was being careful and had ceased to be involved in such things.

Justice Beech-Jones found that based on these telephone conversations it was open to the jury to find that Sakieh was at least present on the balcony and was therefore guilty. And following from that, his appeal was dismissed on 25 June.

Blackstone’s ratio

On 13 May, Justice Beech-Jones quashed the convictions of SK, BK and MS. Although the final findings were not released until last Friday, as the NSWCCA was still considering the appeal brought by Sakieh.

Justice Andrew Bell agreed with the orders of Beech-Jones, even though he found it “regrettable and a source of real unease given the violent and gratuitous nature of the assaults” that some likely guilty parties were being acquitted.

“It is, however, the inexorable consequence of Blackstone’s maxim that ‘the law holds, that it is better that ten guilty persons escape, than that one innocent suffer’,” his Honour added.

Justice Stephen Rothman dissented from the majority finding, as he asserted that given the evidence, Sakieh’s appeal should have been granted as well.

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