136 A Crim A 127
R v Moustapha Dib [2012] NSWSC 1431
SKA v The Queen [2011] HCA 13
Source
Original judgment source is linked above.
Catchwords
190 CLR 348
MFA v R [2002] HCA 53213 CLR 606
R v Micallef [2002] NSWCCA 480136 A Crim A 127
R v Moustapha Dib [2012] NSWSC 1431
SKA v The Queen [2011] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
Galbally Rolfe - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2011/334741
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v Moustapha Dib [2012] NSWSC 1431
Date of Decision: 23 November 2012
Before: Barr AJ
File Number(s): 2011/334741
[2]
Judgment
HOEBEN CJ at CL:
SUMMARY OF CROWN AND DEFENCE CASE
CROWN CASE
The Crown put its case as follows. Shortly after 10pm on 23 November 2000 [AB] drove in a northerly direction on Kathleen Street, Punchbowl. His wife, [the deceased] was seated in the front passenger seat of their white Toyota Corolla hatchback. Their young child was seated in the rear of the car. Two of [AB]'s friends, Monzer El Husseini and Jalal Al Zahab, were driving ahead of [AB] in a separate car, a blue Holden utility.
A stolen, maroon coloured Nissan Pulsar sedan approached [AB]'s car from behind and flashed its lights. [AB] slowed down and the Pulsar drove alongside the driver's side of his car. One of the occupants of the Pulsar, using a revolver, fired approximately four shots into [AB]'s car. There were at least two other persons in the Pulsar. It was alleged that the shooting took place in the vicinity of 8 Kathleen Street. It was the Crown case that the applicant fired the shots.
[AB] was shot through the neck and seriously wounded. The deceased was shot twice, one bullet skimmed the front of her abdomen and caused minor injuries. The second bullet entered her right upper back and proved fatal. It was not possible to establish the order of the shots. The child passenger was not injured in the shooting.
At the time of the shooting, the blue Holden utility was further up Kathleen Street towards the intersection with the street named "The Boulevarde". After the shots were fired, the assailant's car accelerated, drove past the blue utility and turned left into The Boulevarde. [AB] managed to drive his car to the intersection and turned right into The Boulevarde. His car came to a stop shortly afterwards. The blue utility followed [AB]'s car into The Boulevarde and stopped just behind it.
An unmarked police car was driving eastbound along The Boulevarde at the time that the white Toyota and blue utility turned into that street. The occupants, Officers Callaghan and Campbell, observed the cars driving in an erratic manner before they came to a stop. They saw [AB] exit his car in a wounded condition. They also saw El Husseini and Al Zahab exit the blue utility. [AB] approached the police vehicle waving and shouting, which then drove a short distance away from [AB]. Officer Campbell exited the police car and drew his firearm. At some point [AB] collapsed near the side of the road and the police officers eventually realised that he was the victim of a shooting.
Other police officers arrived and unsuccessful attempts were made to resuscitate the deceased. [AB], El Husseini and Al Zahab spoke to the police officers at the scene. The content of these conversations was disputed at trial. The issue was whether [AB] said at this time that he did not know the identity of the assailant. This evidence is dealt with in detail later in this judgment.
The assailant's car was driven to a nearby street in Wiley Park and set on fire. [AB] was taken to a hospital for urgent medical treatment. He underwent surgery to his neck area (repair of a pharyngeal injury and tracheostomy) which was completed at about 2.51am on 24 November 2000. For some days after [AB] regained consciousness, he was either unable to speak or could only speak with difficulty.
Two detectives, Karras and Apolony, attended the hospital at about 1pm on 24 November 2000. From this time until 5 December 2000 Detectives Karras and Apolony regularly visited [AB] and spoke to him about the shooting. [AB] was unable to speak for most of this period.
Notes were taken during these attendances. The notes were made in a spiral notebook, on hospital notepaper, in Detective Apolony's notebook and some on loose pieces of paper. On the Crown case, these notes contained [AB]'s handwritten responses to questions from the detectives. The notes are undated. Questions asked by the detectives were not recorded in the notes. No video or sound recording was made of these meetings. Three handwritten statements were taken from [AB] in a police notebook on November 24, 25 and 29. The statements are in a question and answer format.
The content of these communications is set out later in this judgment. It was the Crown case that these notes recorded [AB]'s identification of the applicant (referred to as "Fairy") as the shooter, the applicant's older brother, Mohammed Dib as the driver of the Pulsar and a third male, Bashar Ibrahim as a rear passenger in the car. The applicant's motive was said to be that he believed that [AB] was an informer and could implicate him in the killing of Edward Lee.
In early December 2000 shortly after his discharge from hospital, [AB] indicated to investigating police that the statements which he made in the hospital were untrue. Police officers attended [AB]'s home and sought to persuade him not to change or retract his evidence. On 15 December 2000 [AB] attended Bankstown Police Station and gave a detailed statement in which he retracted his nomination or identification of the applicant, Mohammed Dib and Bashar Ibrahim, as the assailants.
From that time onwards, in the course of giving evidence on a number of occasions in committal, pre-trial and trial proceedings, [AB] maintained that he was unable to identify the shooter and the other assailants. Since then [AB] has consistently stated that the shooter's face was concealed by a balaclava. Both Monzer El Husseini and Jalal Al Zahab gave evidence that [AB] said words to this effect immediately after the shooting. Monzer El Husseini gave evidence that he observed that the occupants of the Pulsar were wearing balaclavas.
The three witnesses to the shooting each gave evidence that was contrary to the Crown case. Leave was granted to the Crown under s 38 of the Evidence Act 1995 to cross-examine each of them.
The Crown alleged that a baseball cap was found in the vicinity where the shooting occurred. An unfired automatic cartridge was located approximately 10 metres from the cap. The cartridge could not have been used in the handgun that fired the shots. DNA material from at least three people was detected on the cap. Evidence was adduced that a DNA profile matching that of the applicant was extracted from the cap. The name "Omar" was handwritten on the cap. There was evidence that the applicant's youngest sibling was named Omar. The significance of this evidence was challenged by the defence in a number of ways.
With the concurrence of the Crown, the jury was directed that it had to be independently satisfied beyond reasonable doubt of [AB]'s identification of the applicant. In other words, the jury was not permitted to take the DNA evidence into account on the issue of identification of the applicant as the shooter.
The Crown also relied upon a witness who gave evidence under the pseudonym "John Lee". He was a convicted drug dealer who undertook to give evidence against the applicant. He received a substantial discount to his sentence for assisting the authorities. The Crown sought to establish through this witness that the applicant asked about procuring a "hottie" - a stolen car - prior to the shooting. The Crown sought to prove that the applicant had spoken, in the witness' presence, about [AB] being a police informer and, following media reporting of the incident, had attempted to justify the results of the shooting on this basis.
This evidence was relevant to the Crown case on motive. On 17 October 1998 when the applicant was aged 15, he was involved in the stabbing homicide of Edward Lee. At the time of the shooting, the applicant had not been charged with any offence in relation to the Edward Lee matter. The applicant later pleaded guilty to the manslaughter of Edward Lee. The incident arose from an altercation between two groups of young males in Telopea Street, Punchbowl where the applicant lived with his family. The applicant lost control and stabbed Lee, a 14 year old, after he saw his older brother knocked unconscious by one of Lee's friends. This incident was the subject of a large amount of publicity. [AB] was allegedly present at the aftermath of the stabbing and therefore in a position to give incriminating evidence against the applicant.
The Crown alleged that the applicant had motive to kill [AB] because 1) he believed that [AB] was a police informer and 2) he knew [AB] was in a position to implicate him in the Edward Lee stabbing. Evidence was given that in July 2000 [AB] gave an induced statement to the NSW Crime Commission which implicated the applicant in the stabbing. There was no evidence that the applicant was aware of this fact (the statement was kept confidential by police in the period leading up to the shooting incident).
THE DEFENCE CASE
The applicant was born in December 1982 and was aged 17 at the time of the offences. He was aged 15 when he killed Edward Lee. The applicant did not give evidence in the trial. He relied upon exculpatory evidence given by the key Crown witnesses, i.e. [AB], Monzer El Husseini and Jalal Al Zahab in their evidence in chief, together with other evidence adverse to the prosecution case that was elicited during the cross-examination of Crown witnesses. It was the defence case that the evidence did not establish that the applicant was involved in the shooting incident.
The evidence and contentions relied upon by the defence included the following:
[AB] gave his first account of events immediately after the shooting before he was taken to the hospital for treatment. There was evidence that [AB] believed he was going to die at the roadside. At this time, Monzer El Husseini asked [AB] if he knew who it was (i.e., if he knew who the shooter was). [AB] responded "No, I don't, they were wearing balaclavas".
The first police officers to arrive on the scene were concerned that [AB], El Husseini or Al Zahab were armed and challenged them on this basis. [AB] responded by saying "Don't fucking say shit, there is no fucking gun, we don't know who fucking did it".
The shooting bore the hallmarks of a planned assassination. Deliberate efforts were made at concealment, particularly through the use and subsequent destruction of the stolen car. It would be expected in the circumstances that the assailants would seek to conceal their identity. The use of balaclavas was consistent with this expectation.
It was the defence case that [AB] in his exchanges with police at the hospital did not "identify" the assailants; rather he "nominated" them. The nomination of the assailants was a combination of supposition, confusion and anger on his part and was influenced by the conduct of the investigating detectives and his desire for vengeance. [AB] gave evidence to that effect.
It was argued that the circumstances of the shooting did not allow for an identification of the shooters, let alone the identification of at least two (and possibly three) other occupants in the Pulsar. These circumstances included the lighting conditions at the time, the relative movements of the two cars, the fact that [AB] was being fired at from the time the Pulsar drew alongside his car and was seriously wounded, the rapidity of the shots, and the emission of "muzzle flash" close to [AB]'s face when the pistol was fired.
There was a concentrated attack on the integrity of the investigating police officers. It was alleged that the detectives took advantage of [AB]'s vulnerable and drug affected state following his surgical treatment and during his convalescence. It was argued that Detectives Karras and Apolony attended the hospital with the intention of obtaining evidence against the applicant and thereby influenced [AB] to nominate the applicant as the shooter.
A number of aspects of the investigation were relied upon in support of the attack upon the integrity of the detectives: [AB]'s allegations about the detectives placing improper pressure upon him to implicate the applicant, their failure to keep a reliable record of the hospital interviews with [AB], expert pharmacological evidence given by Professor Starmer concerning [AB]'s susceptibility to influence due to the various drugs administered to him during his hospital stay.
[AB] gave evidence to the effect that he would have personally sought retribution against the person responsible for killing his wife if he knew this persons' identity. [AB]'s violent criminal history established a capacity to carry out this threat. This evidence was emphasised by the defence, as was the absence of any evidence capable of explaining why on the Crown case theory, [AB] retracted his nomination of the applicant as the shooter.
The defence emphasised that the three key witnesses in the case gave evidence contrary to the Crown case. The Crown's recourse to cross-examining each of these witnesses, pursuant to s 38 of the Evidence Act 1995 was the subject of criticism, as was the tension between the Crown's submission that the hospital statements of [AB] provided a sound basis for guilty verdicts, notwithstanding that [AB] was attacked by the Crown as being a thoroughly unreliable and untruthful witness.
The location of DNA on the baseball cap was irrelevant, given that the jury had to be independently satisfied beyond reasonable doubt that [AB] identified the applicant as the shooter.
The DNA evidence was challenged on a number of bases:
1. No witness gave evidence that the shooter was wearing a cap.
2. Notwithstanding that police utilised gunshot residue testing in the investigation, the cap was never tested for gunshot residue.
3. A crowd gathered in the aftermath of the shooting and for periods of the investigation the crime scene was not properly secured.
4. Due to the phenomenon of transference of DNA onto surfaces like caps, the DNA evidence could not establish whether the applicant wore the cap, or merely came into contact with someone who did.
5. The DNA evidence could not determine when the relevant DNA profile was placed onto the cap.
The Crown's motive case was disputed on a number of bases. John Lee was an unreliable witness by reason of his major drug addiction and the benefit he stood to receive in assisting the authorities. When John Lee was cross-examined, he gave evidence which undermined or contradicted important inferences sought to be drawn by the Crown, particularly those concerning the conversation about procuring a "hottie" and the conversations following media reporting of the incident.
The defence relied on the content of a second statement that [AB] gave to the Crime Commission in which he provided information about the participation of a significant number of others in serious criminal activity. This established that there were potentially others with a motive to kill [AB].
There was no evidence that the applicant knew about [AB]'s statement to the police concerning the Edward Lee stabbing. The proposition that the Edward Lee stabbing was somehow relevant to the shooting incident, was no more than speculation.
The defence relied on the evidence of Armani Derbas, a close friend of the deceased, in the period leading up to her death. She gave evidence that the applicant's family supported the deceased and were very good friends with [AB], right up to the time of the shooting. The evidence tended to contradict John Lee's evidence and the Crown case on motive.
TRIAL AND SENTENCE
There had been two previous trials of the applicant for the offences relating to the deceased's death and the attack on [AB]. Both trials did not proceed to verdict for reasons which are not presently relevant. [AB] gave evidence in the first of those trials and in the trial, the subject of this appeal.
The applicant was tried before Barr AJ and a jury in the Supreme Court on an indictment that contained the following counts:
Count 1 - The applicant on 23 November 2000 at Punchbowl in the State of New South Wales did murder [the deceased].
Count 2 - The applicant on 23 November 2000 at Punchbowl in the State of New South Wales did wound [AB] with intent to murder [AB].
The applicant was arraigned on 13 June 2012. The jury found him guilty of both counts on 9 July 2012. He was sentenced on 23 November 2012 (R v Moustapha Dib [2012] NSWSC 1431) as follows:
Count 1 - Imprisonment with a non-parole period of 25 years with a balance of term of 10 years.
Count 2 - Imprisonment with a non-parole period of 15 years with an additional term of 5 years.
The individual sentences were partially accumulated resulting in an overall sentence of 40 years with an effective non-parole period of 30 years. The non-parole period expires on 8 July 2041.
The applicant has appealed against the convictions pursuant to ss 5(1)(a) and (b) of the Criminal Appeal Act 1912 upon the following grounds.
Ground 1 - The learned trial judge erred by admitting evidence of [AB]'s identification of the appellant.
Ground 2 - The directions in relation to identification evidence were inadequate and occasioned a miscarriage of justice.
Ground 3(a) - The learned trial judge erred by admitting evidence that the appellant was responsible for killing Edward Lee.
Ground 3(b) - The learned trial judge erred in failing to limit the evidence of motive.
Ground 4 - The warning against impermissible use of evidence of motive was inadequate in the circumstances of the case and occasioned a miscarriage of justice.
Ground 5(a) - The learned trial judge erred by granting leave to the witness John Lee to revive his memory in court.
Ground 5(b) - A miscarriage of justice was occasioned by the impermissible manner in which the Crown Prosecutor was permitted to examine the witness John Lee.
Ground 6 - The learned trial judge erred by refusing to direct the jury that the omission on the part of investigators to test the cap for gunshot residue detracted from proof of the prosecution case.
Ground 7(a) - The learned trial judge erred in failing to give a fair and balanced summing up.
Ground 7(b) - The learned trial judge erred in failing to adequately put the defence case to the jury.
Ground 8 - The verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence.
Ground 9 - A miscarriage of justice was occasioned by the failure of the trial judge to give an adequate warning in respect of "John Lee" pursuant to s 165 of the Evidence Act 1995.
In the hearing of the appeal, the applicant did not press Ground 6.
EVIDENCE AT TRIAL
The evidence of [AB] at trial
[AB] gave evidence at trial. He said that he had a good memory of that particular night. He had been at school with the applicant's older brother and referred to the applicant as his "mate's brother …" and he saw him on a fairly regular basis. On the evening of Thursday, 23 November 2000, close to dark, [AB], the deceased and their young son were in a white Toyota Seca driving north in Kathleen Street, Wiley Park towards The Boulevarde. His friends, Monzer El Husseini and Jalal Al Zahab were driving ahead of them.
A maroon Nissan Pulsar drove past the car [AB] was driving. When it was slightly in front of [AB]'s car (having first drawn level with it) the person sitting in the front passenger seat of the Pulsar, less than two metres away, fired about four shots. The shooter was wearing a balaclava and his arm was out through the car's window. [AB] did not initially realise that both he and the deceased had been hit. The Pulsar then "took off" up Kathleen Street, as did [AB]. However, the Pulsar turned left at The Boulevarde . [AB] turned right into The Boulevarde, then stopped his car. Al Zahab and El Husseini also turned right into The Boulevarde. They removed the deceased and her son from the car.
[AB]'s evidence at trial as to the events at The Boulevarde was:
"I jumped out of the car and there was a police car driving down the road in a real quick and I jumped in front of it and when I did jump in front of it, the police officer came down and one of them held the gun straight at me … but when he realised that my neck was bleeding and he seen my wife on the ground he knew there was something wrong … Jalal was trying not to let the blood get out of my neck - him and Monzer, they try and put their fingers on my neck where the holes were … I remember people asking me that who did it, but at that time, my neck, I didn't know who did it, they were telling me before - in case you die, who did it - a lot of people not only - there was other people there that asking me who did it and I just remembered doing things with my hand and telling them that I think - I don't know who did it but they were wearing balaclavas." (T.367.22, T.368.19)
[AB] said that he was unable to identity the shooter, as both the shooter and the driver were wearing balaclavas. He thought that there was at least one person in the back seat, maybe two. He explained what he had told the police at the hospital as follows. He said that the police "were coming every day" and that he communicated with them by writing answers to their questions. He said, "at the beginning they were telling me this was what happened to you because of the statement about Edward Lee that was the main thing they were telling me. That's what happened here because of what happened with Edward Lee because you didn't assist us" (T.374.18). [AB] said that the persons he nominated at the hospital were friends of his and he had not had any difficulties with them.
Two or three days after he was discharged from hospital (in early December 2000), [AB] went to a police station and "told them I don't remember who did it". When he was asked why he had changed what he was saying, he said that after he left hospital he had a chance to think without the police influencing him (T.384.27). He said:
"Not changed. I made a statement on them three people, Z, Bashar Ibrahim and Mohammed Dib - them three people. I made a statement against them because of the statement that I already made against Edward Lee. I didn't pursue that statement and I told the police, "I'm not going to go ahead with that". So regarding that statement the only thing I got shot for was because I made a statement against Edward Lee, so it made sense, I made a statement against the accused for Edward Lee. Getting shot after it, the police made me realise, "That's the only way you got shot", so I had no other choice to say Bashar Ibrahim, Z and Mohamed Dib, that's the only three that I could say that. There was no other way to say anyone else would have did that to me but because of that statement, it made me think that these people really did it to me but did I see them? I didn't see no one in the car, everyone was wearing balaclavas." (T.385.10)
When asked to explain why he had nominated the applicant as his assailant the day after the shooting, [AB] said that the investigating police put pressure on him and "took advantage of the medication and they took advantage of the circumstance I was in" (T.406.35). He also said:
"A. Because there was no - there was no other explanation for it. I made a statement and - that's what happened - that's how I thought that - there's nothing else - I couldn't think of anything else or anyone else - I'm not a good bloke, I done a lot things and I been involved in a lot of shootings but I couldn't think of that day especially with the pressure of the police and that telling me it was them, from the statement you've made - that's why it happened to you…" (T.397.29)
"A. I don't know why I nominated them but it was just, like I told you, the pressure from the police made me think they're the only ones that had something to do with my wife's murder and my shooting I told you, there was no other alternative. I made the statement I couldn't think of anyone else that could do something like this and especially at the time I was under the pressure I was under and I was going through the process of healing and that I wasn't even being told that my wife was dead yet - all of that together was a lot of pressure on my head - I didn't even know what to do, I needed to blame someone, and the easiest people to blame was them for it." (T.399.7)
[AB] said that except for what he wrote in hospital, he had always maintained that he did not know who shot him and the deceased. He said that this is what he said in his statement on 15 December 2000 and in subsequent court proceedings. He referred to an affidavit which he swore before his then solicitor in Jordan in 2008. The effect of the affidavit was that he was willing to return to Australia to give evidence and that he had not seen the shooter's face. The affidavit went on to say that he was told in hospital by the police (who had earlier threatened to charge him with his involvement in disposing of evidence in the Edward Lee murder), that he was shot because he did not take up their offer to give evidence in that matter. The affidavit asserted that as a result of what the police told him, he formed the opinion that the shooting was because of his statement against the applicant about the Lee matter; his mind was playing games and he was trying to reconstruct events by placing different people as the shooter; the information he gave to investigating police was a combination of what they had told him and his own imagination.
What was said at The Boulevarde
The first time that [AB] said anything about the shooting was when police arrived at the scene of the shooting. His evidence at trial about this was that after the shooting he thought he was going to die and he said the "Ashad", which is a prayer said by Muslims when they expect to die. He said that in such circumstances he would not have told a lie. His evidence of what he told the police officers at the scene was:
"Q. Because they were making a fuss about Jalal and Monzer, they thought that Jalal and Monzer had guns and they were asking them, "Where are the guns?" Do you recall that?
A. No, I don't recall that.
Q. You don't recall that. Well, there's evidence here that they were asking, "Where are the guns, where are the guns?" or "Where's the gun?" Did you do you recall yelling out to the police, "Don't fucking say shit. There was no fucking gun. We don't know who fucking did it", do you recall saying that?
A. Yes, I do.
Q. Was that being said because the police were treating Jalal and Monzer as though they were the ones who shot you?
A. They thought we done the shooting because that's when they came down the road they pulled the gun on me straightaway and told me to get down on the floor but when they saw blood out of my neck and my wife on the floor they straightaway ran and helped us." (T.545.29)
The evidence of Al Zahab at trial on this issue was:
"Q. What happened then?
A. WITNESS: I thought he was going to die so I said to myself I got the son, give it to him before he goes, you know. Then I came close, then I gave him to [AB]. As soon as I gave him to [AB], [AB] hugged it. Then what I done, I smashed [AB]. Before I smashed [AB], I heard Monzer saying to [AB], "Who did it? Who did it". "Balaclava, he was wearing a balaclava." That's when I grabbed the son and put him on the side and that's when I moved away from the scene because I was worried about the kid. I grabbed the kid and made sure he was okay." (T.337.15)
"Q. Who said, "Who did it? Who did it?"
A. WITNESS: Monzer said that, he says, "Who did it?"
Q. Can you tell us did [AB] say anything at that stage?
A. "They were wearing balaclava".
Q. The words that you say he used were, "They were wearing" -
A. WITNESS: "Balaclava". (T.338.19)
The evidence of El Husseini on this issue was:
"A. We pulled up behind [AB], [AB] jumped out of his car, he's running around going berserk, he had blood pissing out of his neck, I went to [AB] to help him, to see what happened to him, [AB] was talking to me, he was shouting, going berserk, I tried calming him down, by then people had come out of the houses and that. So Islamic Islamic Sheikh come out, Islamic priest, tried talking to me about helping me with [AB], or made [AB] lay down on the floor and [AB] was saying he's going to die, he's going to die, he's going to die, he thought he was going to die and then I asked him a question, I asked him "did you know who it is". He said to me "no, I don't, they were wearing balaclavas" and then the Islamic priest told me to put my hands around his neck to stop the bleeding, I done that, but [AB] was going berserk, he was going berserk, and then I remembered his wife - that his wife was in the car." (T.1184.9)
"Q. It's at that time that you asked him, around that time, "Who did this?", yes?
A. Yes.
Q. And according to you he said "They were wearing balaclavas"?
A. That's correct." (T.1194.37)
"Q. Do you recall [AB] calling out something like "Don't talk shit. We don't know who did it"?
A. To me or -
Q. To you, to the police; to the police?
A. He was telling them, he was calling out to the police telling them about me, that it wasn't me. Yeah, that's right.
Q. He was telling the police it wasn't you?
A. That's right.
Q. Do you recall hearing him say "We don't know who did it?"
A. That's correct." (T.1195.22)
Constables Campbell and Callaghan were the first police officers to arrive. They were there entirely by accident. Constable Campbell in his statement described [AB] running towards their vehicle, throwing his arms from side to side and screaming in an aggressive way. He was yelling "What are you cunts going to do? Fucking help me". He then ran back to his vehicle and drove towards the police vehicle causing Constable Campbell to raise his pistol and direct him to stop. His vehicle came to a stop approximately three metres from the police vehicle. He again rushed towards the police vehicle waving his hands but then fell to the ground. In his statement read at trial Constable Campbell said:
"At this time between 10 and 20 Middle Eastern males had started gathering from nearby residences. Duty Officer Hallinan has also arrived and has attempted to move some of these persons from the scene. I said to El Husseini, "Where's the gun? Who shot him Who has a gun"?
After asking these questions [AB] has started screaming from the ground and started kicking out. [AB] said, "Don't fucking say shit, there was no fucking gun, you don't know fucking did it"." (T.194.41)
In cross-examination Constable Campbell accepted that the comment "Don't fucking say shit" could have been directed at him, rather than at El Husseini. He also agreed that rather than "You don't know fucking did it" [AB] may have said "We don't know who fucking did it" (T.213.20).
Constable Callaghan in his statement said:
"[AB] has then whilst holding his throat leaned up to his right of the roadway and looked at El Husseini and yelled "Don't fucking say shit. There was no fucking gun. We don't know who fucking did it". [AB] has then become aggressive and started kicking his legs out towards El Husseini's direction and in doing so, has struck Duty Officer Hallinan's leg." (T.292.14)
In his evidence at trial, he said:
"Q. In your evidence you said the words, "Don't fuckin say shit. There was no fuckin gun. We don't know who did it." Was anything else said before the reference to "who did it"?
A. Yes. It was, that was that reaction to me was said after when I've written here I heard El Husseini say "Don't worry man, it's only a .22," and then that led into "Where's the gun? Who shot him?" And then that reaction came." (T.295.37)
"Q … The record that you have in your statement is 'There was no fuckin gun' but I'm asking you whether it's possible given what [AB] was reacting to whether he might have said 'there is no fuckin gun'?
A. No. Definitely "Don't fuckin say shit. There was no fuckin gun. We don't know who fuckin did it."
Q. I'll just take you to those last words. Your definite recollection is "We don't know who fuckin did it"?
A. Yes." (T.303.40)
Detective Inspector Hallinan, who was then a detective sergeant, arrived shortly after Constables Campbell and Callaghan. In his statement, he said:
"I went back to where [AB] was lying to speak with Constable Callaghan. Before I had the opportunity to speak with Constable Callaghan I heard Constable Campbell say, 'Where's the gun, who shot him?' I looked around and saw El Husseini and Constable Campbell a few steps behind me. Without warning, [AB] lent up and suddenly kicked me in the legs twice. Simultaneously he screamed out, 'Don't fucking say shit, there was no fucking gun. We don't know who did it'." (T.910.23)
At trial, he said:
"Q. At the stage when Constable Campbell is yelling at El Husseini and Al Zahab, "Where's the gun? Where's the gun? Who shot him?" it's at that stage that [AB] suddenly arks up, he kicks you in the legs twice yes?
A. Yes.
…
"Q. He was yelling at the police officers, wasn't he?
A. Well, he was yelling I don't know who he was yelling to but he was certainly yelling.
Q. He was, as you perceived him, responding to what the police were saying?
A. Yes.
Q. And in the course of that he is saying, "We don't know who did it"; correct? That's quite clear, he's saying, "We don't know who did it"?
A. Well, he's saying, you know, "We don't know shit".
Q. No, he wasn't saying, "We don't know shit", he was saying, "We don't know who did it"?
A. Yes." (T.913.21)
At no time did any of the police officers see a Muslim religious person or cleric approach or speak to [AB].
The hospital statements
The evidence of what happened at the St George Hospital came from Detectives Karras and Apolony. Except where indicated, their statements and evidence were in identical terms. This was a source of cross-examination and adverse comment at trial.
The evidence of what [AB] wrote while in the St George Hospital was of fundamental importance in the trial. It formed the basis of the Crown case. If that evidence was not accepted by the jury as honest and reliable, the Crown had no case. It is for this reason that I have set out this evidence in its entirety. As can be seen from the summary of [AB]'s evidence at trial, he did not deny that he wrote what was recorded by the police officers, but said that what he had written was untrue. He also challenged the circumstances in which he wrote those responses, i.e. that certain suggestions were made to him by the police officers.
The first interview at the hospital took place on 24 November 2000 between 1pm and 2.10pm. The following conversation took place with Detective Karras asking questions and [AB] writing the answers:
"KARRAS (K): How are you going [AB]? Can you tell me who did this to you?"
[AB] then wrote in the notebook "fairy".
"Did you show them statements?"
K: " No, you know I wouldn't do that. I have had nothing to do with them".
[AB] then wrote:
"Why did this happen?"
K: "I don't know. Can you tell me what type of car they were driving?"
[AB] wrote:
"Tinted windows. expt 2 windows open/
front fairy
back don't know".
K: "I want to speak with you further about this and take notes".
[AB] wrote: "I want to sleep". (Exs AJ, AK; T.640.12 - 641.17)
24 November 2000 - 2.10pm - 3.22pm
K: "[AB] I want you to tell me what actually happened?:
[AB] wrote: "I will handle it".
K: "No, no you leave that up to us."
[AB] wrote: "Bad luck.
My wife is dead."
K: "Look we need your assistance can you tell us anything about the car?"
[AB] wrote: "Maroan Pulser.
Station wagon." (Ex AL; T.642.1)
24 November 2000 - sometime before 3.22pm
K: "What else can you tell us?"
[AB] wrote: "Give me my statements and I'll think about it.
The original.
My copy."
K: "I'm not going to do that." (Ex AM, T.642.32)
24 November 2000 - 3.38pm - 4.01pm. Detectives Karras and Apolony returned to the Intensive Care ward.
K: "[AB] was Monzer with you last night?"
(There is a dispute as to what was written in answer to that question. The Crown asserted that what [AB] wrote was "Maybe funny". [AB] said that what he wrote was "Maybe fairy".)
The written response is Ex AN. It is a scrawled response which could be the word "funny" or "fairy". The response "maybe funny" makes no sense. The response "maybe fairy" makes more sense in the context of the question but is not fully responsive (Ex AN, T.643.13).
As the officers began to read [AB]'s last response, he indicated that he wanted to write more. [AB] then wrote:
"Help me Monzer.
My wife is dead.
Bro all the way.
Brother."
Below this statement is [AB]'s signature. [AB] then wrote:
"Help the op cops only.
Karris."
K: "Do you want me to show him that?" (Ex AO, T.643.17)
[AB] nodded his head.
K asked: "A do you want to tell me in statement form who shot you?"
[AB] nodded in agreement.
The official jurat was inserted in sticker form. The following was then recorded in Detective Apolony's notebook on page 3:
K: "Can you tell me who shot at you and your wife last night at 10.15pm in Kathleen Street Lakemba?"
[AB]: "Fairy" and signed his name.
K: "By "Fairy" do you mean [the applicant] from xxxx Punchbowl?"
[AB]: "Yes" and signed his name (Ex AP, T.644.2)
Detectives Karras and Apolony left the ward at 4pm. Subsequently they spoke to Monzer El Husseini, who declined to give a statement or assist with the matter. At about 9.15pm they again entered the Intensive Care ward. They were accompanied by [AB]'s brother, MB. MB was allowed time to speak to [AB] alone. A short time later, MB approached the detectives and handed over a page of hospital clinical note paper which contained the following:
"Basher
Dib Mohammed
Fairy Moustapha".
This document was Exhibit AQ.
24 November 2000 - shortly after 9.15pm. Detectives Karras and Apolony entered the room with MB and Detective Karras said:
"How many people were in the car that shot at you?"
[AB] wrote:
"4 Dib MOH
fairy Dib
Basher Ibra"
K: "Can you tell me where each person was seated in the car?"
([AB] identified the positions in the car and Detective Karras wrote the names in the square which he had drawn.)
MB showed [AB] the same piece of paper and said to him:
"Is this where they were sitting?" pointing to the square. [AB] nodded.
K: "[AB] is it all right if we write all this in a notebook interview?"
[AB] wrote: "Tomorrow".
The depiction shows "Fairy" in the front passenger seat, Moha as the driver and Basher in the backseat behind the driver (Ex AR, T.645.48).
25 November 2000 - Detectives Karras and Apolony returned to the hospital to speak to [AB] who had been moved to the Day Surgery ward. The detectives met [AB]'s parents, who were accompanied by MB. MB gave Detective Karras a piece of paper on which was written "I give authorisation to bury my wife tomorrow" (Ex AT).
The following then took place:
K: "[AB] are you ready to give us a statement?"
[AB] wrote: "Is it going to affect my breathing?
He started it".
K: "If you feel up to it, we will get on with it."
[AB] wrote: "Give me the original copy and I'll sign it."
K: "You mean the original statements you have already given us?"
[AB] wrote: "I'm sure if they weren't shown this would of not happened."
Detective Karras wrote "They were" … then stopped writing. He then said "They were never shown".
[AB] then wrote on another piece of paper "Where's Monzer?"
K: "He was charged with breaching his bail. I showed Monzer your note you wrote yesterday and he told me he is not giving any statement and he is not going to help".
[AB] wrote: "I'm not helping".
K: "Why not?"
[AB] wrote: "Something up there".
K: "We really need you to give us a statement to assist us with the investigation".
[AB] wrote: "My wife is dead and she was pregnant.
I'm going to fuck em.
One week.
One yer.
One month.
I'm going to fuck em."
[AB] pointed to his head.
K: "Do you have a headache?"
[AB] nodded.
K: "Do you want us to go and come back later?"
[AB] nodded. (Exs AU, AV and AW, T.651.28 - 652.19)
25 November 2000 - 3.15pm
Detectives Karras and Apolony returned two hours later.
K: "A are you ready to give us a statement now?"
[AB] nodded and tried to say the name "Monzer".
K: "Do you want to tell me about Monzer?"
[AB] wrote: "His a good bloke.
We've been going to the mosque together."
K: "He's not prepared to assist us. Will you give us a further statement?"
[AB] wrote: "What's going to happen after this?"
K: "We're going to put you in witness protection.
[AB] wrote: "Am I allowed to go were ever I want?"
K: "That's up to witness protection people. They will be looking after you."
[AB] wrote: "Denmark"
K: "After all the court matters are finished, you can do what you like. Until then you have to stay in the country, abide by what they say. Will you assist us in the Edward Lee murder as well?"
[AB] shook his head.
K: "Why not?"
[AB] wrote: "I'll see this is personal.
The other isn't."
K: "Are you prepared to give us a statement now?"
[AB] wrote: "Later".
K: "When?"
[AB] wrote: "When I got my demands."
K: "How much are you willing to assist?"
[AB] wrote: "Not the Kalache cas.
Only edward Lee." (Exs AX, AY; T.653.12)
Detective Apolony placed the official jurat into his police notebook. The following sets out what is recorded on pp 4-6 of that notebook.
"K: A do you agree yesterday, Friday 24th, you wrote on a piece of paper with St George Hospital letterhead on it the number 4 and the names "Dib Moh, Fairy Dib and Basher Ibra"?"
[AB] wrote: "Yes" and signed his name.
K: "Are these the names of the people in the car that shot at you?[AB] wrote: "Yes" and signed his name.
K: "Can you tell me which of these males in the car shot at you?"
[AB] wrote: "fairy Dib" and signed his name.
K: "By the name Dib Moh are you referring to Mohammed Dib?"
[AB] wrote: "Yes" and signed his name.
K: "Are you prepared to give evidence in relation to the murder of Edward Lee at Punchbowl on 17 October 1998 as per the statement you have already supplied to Detective Karras and Apolony?"
[AB] wrote: "Yes" and signed his name. "Ex AZ, T.654.17)
Detective Karras left the room to collect MB. While he was gone, Detective Apolony said to [AB] "Can I ask you a few questions, just to confirm what happened? I'm not going to ask you to sign anything, I just want to ask you some background questions."
[AB] nodded.
A: "Which side was the car on when they shot at you, the driver's side or the passenger's side?"
[AB] drew two cars, side by side, and identified where various persons were seated by writing "wife/me/Dib Fairy/Moh/Bash". As depicted on that document, Dib Fairy was in the front passenger seat, Moh was the driver and Bash was in the rear seat behind the driver.
A: "Did you see the car when you drove down the street? Did it pass you from the other side or from behind?"
[AB] did another sketch which illustrated "thier car", "my car" and "Monzer car/15M". ([AB] drew an arrow from "thier car" up beside the driver's side of his car.) (Exs BA, BB, T.772.1)
Detective Apolony said "How far down the street from your car was Monzer's car?"
[AB] wrote: "15 metres" on the sketch beside Monzer's car.
A: "Did the others in the car have guns?"
[AB] shrugged.
A: "Was Fairy the only person you saw with a gun?"
[AB] nodded.
A: "When you drove down Kathleen Street, did you see their car in the street?"
[AB] shook his head.
A: "Do you think they were hiding around in Melrose Avenue."
[AB] shrugged.
A: "Was Fairy's window down?"
[AB] nodded.
A: "Were any other windows down?"
[AB] pointed to the rear nearside passenger position of the offending vehicle.
A: "How many shots did they fire?"
[AB] shrugged.
A: "More than six?"
[AB] shook his head.
A: "More than three?"
[AB] nodded.
A: "So between three and six?"
[AB] nodded. (Detective Apolony said that this conversation was recorded by way of notes made contemporaneously by him on p 84 of a diary.)
Detective Karras returned to the ward with MB. MB requested to speak to [AB] alone. MB and [AB] spoke for about 10 minutes in Arabic and during this time, both [AB] and MB were very emotional. A short time later, MB called the detectives into the room.
MB said: "He wants to tell you something about Basher."
K: "What do you want to tell me [AB]?"
[AB] wrote: "I seen his face, if it was him.
From the corner of my eye but I'm not sure if it was him." (The pen ceased working and [AB] wrote the second sentence in pencil.)
[AB] and MB spoke alone. MB handed a paper to the officers on which [AB] had written "I don't think basher was thier.
But the other 2 - 1 hundred percent." On the reverse of the page [AB] wrote: "Tell them." (Exs BC, BD; T.655.23 - 656.15).
29 November 2000 - 12.30pm
Detectives Karras and Apolony attended St George Hospital and spoke to [AB].
K: "[AB] are you still not sure about Basher?"
[AB] shrugged.
K: "Is the fourth person Basher's brother?"
[AB] wrote: "Jail"
K: "Is he Lebanese?"
[AB] nodded.
K: "Have you seen this person before?"
[AB] nodded.
K: "Does he hang around with them?"
[AB] nodded.
K: "Is he from Telopea Street?"
[AB] mouthed "no".
K: "Did you see the four wheel drive?"
[AB] shook his head.
K: "Did you see Shadi's white Prado?"
[AB] shook his head and then wrote: "Did you find the car?"
K: "Yes"
[AB] wrote: "Stolen car".
K: "Did you tell MB that you saw a black four wheel drive?"
[AB] shook his head.
K: "Did you see your son today?"
[AB] nodded and wrote: "He got scared".
K: "Did you talk to the doctors?"
[AB]: "They lie too much"
K: "We will need a statement to keep them in when they go for Supreme Court bail. Is that okay?"
[AB] nodded.
K: "We'll need to speak to you further about Basher."
[AB] wrote: "If you really think about it there really all out and about.
They all stick together"
K: "It doesn't matter because you saw it"
[AB] wrote: "Leave Basher for me".
29 November 2000 - 7pm
Detectives Karras and Apolony, together with a Constable Melby, returned at about 7pm, at which time Detective Karras said:
"[AB] are you ready for us to ask you some questions in the notebook in relation to your wife's murder?"
[AB] nodded.
Detective Apolony placed the official jurat in the notebook.
The following is taken from Detective Apolony's notebook, pp 10 - 18.
K: "As you know, Detective Apolony and I are investigating the shooting murder of your wife, xxxxx, and the shooting of yourself at Lakemba on 23 November 2000, do you understand that?"
[AB] wrote: "Yes".
K: "Do you agree, on 25 November 2000 I spoke to you at St George Hospital?"
[AB] wrote: "Yes."
K: "Do you agree you signed Detective Apolony's notebook to say there were four people in the car that shot at you?"
[AB] wrote: "Yes".
K: "Do you agree that you signed the notebook to say that you recognised three of those people?"
[AB] wrote: "Yes"
K: "Do you agree that you signed Detective Apolony's notebook stating that Basher Ibrahim was one of those three people?"
[AB] wrote: "Yes".
K: "Do you agree that later that afternoon, you stated that you were not 100 percent sure about Basher Ibrahim being the third person?"
[AB] wrote: "Yes"
K: "Can you tell me who that third person was in the car that shot at you?"
[AB] wrote: "Basher Ibrahim."
K: "Can you tell me why you stated to Detective Apolony and myself you were not sure Basher Ibrahim was in the car?"
[AB] wrote: "Because he was a friend but it got personal revenge."
K: "What do you mean by personal revenge?"
[AB] wrote: "For what they did to my wife I wanted to get him myself."
K: "Where was Basher Ibrahim sitting in the car that shot at you?"
[AB] wrote: "Behind the driver's seat of Moh Dib."
K: "How long have you known Basher Ibrahim?"
[AB] wrote: "10 years."
K: "Can you tell me where he lives?"
[AB] wrote: "x xxxx Street, Greenacre."
K: "What was your relationship with Basher Ibrahim?"
[AB] wrote: "Good friends."
K: "Do you know who the fourth person in the car was?"
[AB] wrote: "No."
K: "Have you seen the fourth person in the car before that night?"
[AB] wrote: "Yes."
K: "Can you tell me when you have seen this person before?"
[AB] wrote: "Don't remember."
K: "How long before this incident was it that you saw this person?"
[AB] wrote: "Either 97 to 98 when I was in or out of jail."
K: "As far as you're aware, is this person an associate of Mohammed or Moustapha Dib?"
[AB] wrote: "Don't remember.
Only telephone calls."
K: "How do you know that this person used to ring the Dib brothers?"[AB] wrote: "They used to call him Sam Merreekville. Slang terms but didn't like each other."
K: "Would you be able to recognise this person again?"
[AB] wrote: "Yes."
Constable Melby asked: "Have you made this statement of your own free will?"
[AB] wrote: "Yes."
Constable Melby asked: "Has any threat, promise or inducement been held out to you to make this statement?"
[AB] wrote: "No."
Constable Melby asked: "Have you any complaints to make about this statement or the way you were interviewed?"
[AB] indicated "No" and the officer wrote this down.
Constable Melby asked: "Were you able to read this statement?"
[AB] responded: "Yes"
Constable Melby asked: "Are you willing to sign this statement as a true and accurate statement made by you?"
[AB] answered: "Yes" and signed. (Ex BE, T.658)
Detective Karras spoke to [AB] on 1 December 2000. The following exchange took place.
[AB] wrote: "Where's Apolony?"
K: "He's on the phone. Who's name is your unit in?"
[AB] wrote: "[the deceased]"
K: "What is the unit address there. We have to search your unit."
[AB] wrote: "x xxxx Melrose Avenue.
Are they searching the house now?"
K: "Shortly."
[AB] wrote: "All of it is mine and hers."
K: "Where are your keys to the unit?"
[AB] wrote: "bunch of keys" and mouthed the word "car".
Were's the doctor?"
K: "He's in the next room" and asked [AB]: "Who do you rent from?"
[AB] wrote: "Community Housing Bankstown."
K: "Are you ready to answer some questions in the notebook about that?"
[AB] wrote: "Not now for this one."
K: "Can you tell me who Sam Marrickville is?"
[AB] wrote: "I still have to see Sam Marrickville to make sure it's him."
[AB] wrote: "I'm having bad dreams" and started to cry. (Ex BK, T.660.45 - 662.36)
Detectives Karras and Apolony attended the St George Hospital on 5 December 2000 and spoke to [AB].
K: "Are you prepared to make a statement in the matter of Edward Lee and the murder of your wife?"
[AB] (speaking rather than writing): "Yes".
A formal typed record of interview was conducted by Detective Karras and typed by Detective Apolony. When [AB] was shown his statement of 13 July 2000 about the death of Edward Lee, he refused to continue saying "I'm not answering that. I don't want to be interviewed and I'm not making any statement." (Ex BL)
The evidence of Detectives Karras and Apolony at trial
Detective Karras said that his involvement in the investigation concerning the shooting was limited to dealing with [AB] because of a pre-existing relationship. His previous dealings with him had been in the context of him giving an induced witness statement on 13 July 2000 about the death of Edward Lee. [AB] was to be a witness before he became a victim on 23 November 2000.
Detective Karras said that [AB] was "perfectly co-operative" when spoken to in hospital. He said that he (Karras) had not asked how the shooting had happened and who was responsible because "he was not in a condition to give me a lengthy story. They were very short answers [and he] was using his own slang … straight up he said "Fairy"." (T.759 - 60) Both Detectives Karras and Apolony gave their evidence by reading substantial parts of their witness statements before the jury.
Detective Karras said that except for the first two occasions, he had a video camera with him when he spoke with [AB]. It was not used because [AB] did not want to be recorded. He agreed that it was probably standard procedure by the time of trial to video record a person giving information, but as at November 2000 it was "not for a witness … I treated him as a victim of crime [and] a witness." He agreed that [AB] had at an earlier time named upward of 20 or more serious criminal persons for various serious crimes and agreed that any of these persons might have had a motive to kill [AB].
Detective Karras was cross-examined to the effect that making his statement on 19 December 2000 with Apolony was improper because corroborating officers should produce independent records of the event. Detective Karras denied that proposition. He said that the statement was made by reference to duty books, TIMS running sheets and intelligence reports. When cross-examined about the contemporaneity of the notes recording the conversations with [AB], and the fact that his statement was not made until 19 December 2000, Detective Karras referred to the contemporaneous records which set out each interaction with [AB] and which enabled him to prepare an accurate statement.
Detective Karras specifically denied that he "stood over" [AB], that he nominated any person to him as responsible for the shootings, or had persuaded him that the applicant and Basher were involved. He denied that his evidence was "a tissue of lies".
Detective Karras was re-called on the issue of running sheets/information/intelligence reports and explained the process of creation and storage of that information. He denied the proposition that the running sheets, although commenced on the dates specified, were in fact completed later or amended between their creation and being entered on the police information system. Detective Karras rejected the proposition that he and Detective Apolony had "fabricated or doctored" documents once it became known that [AB] was "not going to help".
Unlike Detective Karras, Detective Apolony had attended the crime scene, arriving at about 1am on Friday 24 November 2000. He spoke to various police and was later involved in the execution of a search warrant before being sent with Detective Karras to attend St George Hospital to speak to [AB]. He was present when the applicant was arrested.
Detective Apolony said that he and Detective Karras had "attempted to video record the conversations and interviews with [AB] but that [AB] had objected to this by raising his right hand and waving the video camera away indicating that he did not want it recorded".
Detective Apolony was the officer in charge of the investigation into the death of Edward Lee on 17 October 1998. He agreed that after [AB] gave him the statement on 13 July 2000, he did not immediately arrest the applicant for that offence. He was still investigating the offence when on 25 July 2000 [AB] said that he did not want to give evidence or assist the police. He was unable to say why the applicant was not arrested immediately after he and Detective Karras had [AB]'s identification of the shooter. The decision to arrest or not to arrest the applicant was not his.
Detective Apolony denied that in conversations with [AB], he or Detective Karras had said that it was the applicant who shot him because of his witness statement implicating him in the Edward Lee killing. He said in cross examination that he did not know why [AB] and the deceased were shot because "those statements he made were never shown to anyone between July and November when this happened. So there was no evidence or there's no indication that it related to his statement because we had not told anyone about it" (T.806).
Detective Apolony said that neither he nor Detective Karras had decided anything about who was responsible before speaking to [AB] who immediately told them who was responsible. He agreed that the first few pages of his spiral notebook (Ex BF), immediately before the page where [AB] wrote "Fairy", contained some details of the applicant, Ahmed and Mohammed Dib and the name of a solicitor who acted for some of them. Detective Apolony explained that these details related to the investigation into the Edward Lee killing, and included the applicant as the person who had done the stabbing.
Detective Apolony was cross-examined extensively about how his statement and that of Detective Karras were in almost all respects identical when setting out the exchanges with [AB]. Like Detective Karras, he referred to the joint compilation of the statements from the TIMS documents, information reports and running sheets. He explained that the practice was not to include running sheets and a brief of evidence but rather, as occurred here, to include in the witness statement those parts of the running sheets which were relevant.
Detective Apolony denied that the time taken between 1pm and 2.10pm (the first exchange between Detective Karras and [AB]) was spent persuading [AB] that the applicant was responsible for the shooting which had occurred because of [AB]'s statement implicating the applicant in the killing of Edward Lee.
He denied that during the search of Monzer El Husseini's home he had heard one of the police say "we will take him back, charge him with murder and see what he says" although he was aware that El Husseini had been arrested and as "it was the early stages yet, we [didn't] know what involvement he had". He also denied that he had put [AB] up to writing Exhibit AO. He said that [AB] "off his own bat grabbed the note pad and wrote down "help me Monzer" …". He also disagreed that [AB] had written "maybe Fairy" rather than "maybe funny".
The evidence of John Lee
A witness using the pseudonym "John Lee" was called in the Crown case. Lee had been at school with the applicant (whom he knew as "Fairy") and his brothers. He also knew [AB] and others in the Punchbowl area. He did not, however, regard himself as being "close" to either the applicant or [AB].
He left school in 1996 and after some time began selling cocaine and heroin in Kings Cross daily. He "wanted to do what my friends were doing and I just wanted to be cool and stuff". He sold those drugs for about a year or a little longer (he was aged about 18) and it was in about 1998/99. At the time he was using cannabis, heroin and cocaine. For eight months to a year he was selling heroin and cocaine on Telopea Street, Punchbowl doing the "afternoon shift" until he was arrested in November 2000. At that stage he was using drugs every day himself, mainly heroin and cannabis.
He said that at that time he saw the applicant every day and had spoken to him on occasions. In a conversation with him in Telopea Street the applicant said "[AB] was a dog". Lee could not remember if others were present, although there were lots of people there every day. He said that the applicant "used to say that [AB] was a dog" and "if you testify your next of kin will die". Lee said that the applicant used to say this "in different conversations, like we used to bring it up all the time that [AB] was a dog but I didn't know what reason for". The description "dog" was understood by Lee to mean a person who "gives statements to the police". Lee said that the term was used more than once by other people as well as the applicant, although the latter "was the main one saying it, like that's how I knew, but I really didn't know why he was a dog".
Lee came to hear of the shooting of [AB] after arriving in Telopea Street to sell drugs and "[the applicant] and a couple of other boys, they had a newspaper and they were reading it, and they told me [AB] had been shot and I saw a picture of his wife's car". Lee said, "No, shoot him, but why his wife and [the applicant] said if you kill someone, you have to kill the witness too or otherwise they become a witness". Lee said that the police would have found the shells to which the applicant replied "No, they would have found shit because they wore gloves and balaclavas and stuff like that".
Lee was given leave to refresh his recollection from his witness statement as to these conversations and confirmed his earlier evidence that the applicant had referred to [AB] as a "dog" "Like, no more than a week" before the shooting. The applicant also said that [AB] "was going to testify the next day". A person "Wally" said that Monzer [El Husseini] was also a "dog" but the applicant said he was not, although he named Alex Popovic and Joey Allen as "dogs". The following is the more detailed evidence which Lee gave by refreshing his memory from time to time from his statement.
Lee was in Telopea Street with the applicant and others "probably a couple of days" before [AB] was shot when the applicant asked "Freckles" [Mohammed Ismail] "Can you get me a hottie [a stolen car]? If you can't get me one, I'll just get someone else, one of my other people that used to get Michael Kanaan stolen cars, to get me one". In a separate conversation the applicant said "If you testify your next of kin will die". The applicant said that he wanted to put something about Punchbowl in the newspaper.
Lee said that "probably the day after [AB] had been shot and his wife" again in a conversation in Telopea Street with the applicant and others, the applicant said "If you shoot someone you have to shoot the witness too because the witness will become a Crown [witness] and that's how people get done for murder". Later in that conversation, the applicant said "the stolen car was burnt up the road and the police are probably going to raid here … They found a hottie up the road, next to Tony Haddad's house". The applicant also said "If you shoot someone, you have to shoot the witness too. I don't feel sorry for no-one because that's how people get done for murder".
Lee said that within "one or two days after the shooting … I just rocked up there [Telopea Street] and they were really looking at the [Daily Telegraph] paper. We were all looking at the paper, together yeah and just talking about the incident … I remember [the applicant] telling me that [AB] got shot twice in the neck and his wife - and he lived and he got shot in the voice box so he won't be able to testify now and his wife got one shot in the stomach and she just died … and he deserved it for all the bad things he's done" (T.944).
In another conversation with the applicant about the newspaper article, Lee commented that police would find "shells, bullet casings" from the gun to which the applicant replied "No they wouldn't have found shoot because they would have been professionals, they would have used a revolver, balaclavas, stolen car, they would have wore gloves" (T.943).
Within a few days Lee, the applicant and a number of others were arrested at Telopea Street by police. Lee was charged with various offences, including the supply of drugs. He later received a 60 percent discount on sentence for his assistance to authorities, including his statement to police of 30 November 2000 relative to this matter, and information concerning the killing of Edward Lee. Lee said that at the time of the events just related, he was using drugs every day and spending his daily earnings on them. He smoked heroin daily, sometimes snorted cocaine and also used cannabis.
In cross-examination Lee agreed that he had been dealing in drugs for a long time and that he faced charges with a maximum sentence of 20 years. He also agreed that he knew (because he had done it before), that if he gave police information - that assistance would or could garner a big sentence discount. He agreed that on 28 November 2000 when he was examined on oath before the Crime Commission he said he had no information about [AB]'s shooting. He disagreed that the conversation about the "hottie" was "information for the shooting"; in fact he had "never heard [the applicant] shot anyone". Lee agreed that the applicant was not at that time "big noting himself to be a big man like Gee, look what I'd done … all the discussions were about what was in the newspaper".
Lee agreed that he had not himself prepared his witness statement and that it used language he would not use. The police had prepared it. Nevertheless, he said that the contents were true. He agreed that he was addicted to heroin at the time of his arrest in November 2000 and had suffered withdrawal following his arrest. He agreed that at the time his witness statement was being prepared [when he was visited by police "more than a couple of times"] because of his withdrawing from heroin, he was not in a state to do anything much but agree with police and sign it.
He agreed that nothing the applicant said made him think that he had anything to do with the shooting. The discussions about the shooting followed publicity concerning it and the applicant did not say what it was that [AB] had been "dogging" about, including whether it had anything to do with the applicant, nor any killing. He was aware that the applicant's brothers were involved in car re-birthing and that the "hottie" may have had something to do with that.
Armani Derbas, a friend of the deceased, gave evidence. She said:
"A. Yeah, she was concerned [AB] had been going around shooting at
people, something to do with he had done his time for something about Canterbury Road or some boys but he had been going around shooting at guys and she was really worried about his safety.
Q. Was she concerned that he had enemies? That is [AB]?
A. Yeah, he'd shot at people so she was concerned about that and she was worried about they were going to get back at him." (T.1178.50 - 1179.7)
She agreed in cross-examination that the Dib family were very supportive of the deceased.
"Q. So far as the Dibs were concerned, [AB] and [the deceased] were friends with the Dib family right up until the death?
A. They were. The Dibs supported - the Dibs were the only ones that supported [the deceased]. Nobody supported her. Only them. So they were very, very good friends and [AB] as well." (T.1180.28)
Professor Starmer gave evidence as to the possible effect on [AB] of the drugs administered to him while he was in hospital. Professor Starmer had forty years experience in research on the effects of drugs and alcohol. He had been a professor of pharmacology at the University of Sydney for in excess of 25 years.
Professor Starmer identified the following substances which were administered to [AB] during his first 24 hours in hospital: morphine, 10 milligrams. Metocloprimide, 10 milligrams. Midazolam, which was a short acting Benzodiazepine. Professor Starmer said that [AB] was operated on as soon as he arrived at hospital and was transferred to the Intensive Care Unit at approximately 3am on 24 November 2000. From his reading of the notes, it was Professor Starmer's understanding that [AB] was being treated with morphine throughout 24 November 2000, but he was not able to say how many 10 mg doses he would have received during that time. He regarded 10 mgs of morphine as being "a reasonably hefty dose".
Professor Starmer described the effects of Morphine as follows:
"A. … Morphine is a drug which is used to enable the patient to cope with pain, and it's not a drug that you use would use for trivial pains. In fact it works in quite a different way. There are two main sorts of analgesic, that is the thing that deals with pain, the first sort is called a nonnarcotic analgesic, and that would include drugs like Aspirin and Paracetamol, and these drugs act at the site of initiation of a pain impulse, usually by some method like anti inflammatory action, or antipyretic action, and these drugs are relatively simple, and act peripherally.
Morphine, like analgesics, have an effect on the patient's appreciation of pain. In other words, to put it somewhat - well, in not a scientific way, would be the pain effect of morphine is to reduce the appreciation of pain, rather like it was not happening to you yourself but somebody at the far end of the room, who you didn't really care about. And under those circumstances the patient will usually fall asleep, or at least get very drowsy." (T.102.13)
When asked about the medication [AB] would have been taking at 12pm on 24 November, Professor Starmer said:
"A. Well he appears to have been put under patient control analgesia, which is probably also using morphine. When patients are put on this particular apparatus, the apparatus consists of a pump driven syringe, and a line is taken from the syringe into a vein in the patient, and the patient is given a thing, a bit like one of those controls that you use on the television, and if you feel as though you need pain relief you can press the button which you are given to hold in your hand, and that will deliver a small amount of morphine into the patient. There is of course an electronic override which prevents the patient going crazy and, pump pump pump pump pump to get more morphine in. It's also useful for coping with other situations like a patient's in pain in a hospital bed, you can see the physiotherapist advancing down the ward, and a shot of morphine might be considered to be helpful." (T.103.7)
Because [AB] was also receiving Panadeine Forte, Professor Starmer was asked to explain the effect of that preparation on him.
"Q. And was that something that he was prescribed to take 4 to 6 hours?
A. That would be an appropriate dose for this preparation. Panadeine Forte is a mixture of, well it is a compound tablet which contains codeine. Now this one, the Forte, is a strong one so it is 30 mg of codeine, codeine being a close relative of morphine which is in fact converted to morphine in the body, at least about ten per cent of it is.
Also in the Panadeine Forte formulation is paracetamol which is an analgesic of the other type that I spoke about right at the beginning of this afternoon. There is some evidence that a mixture of codeine and paracetamol is more effective than you would expect for the individual pain relief given by the two drugs. But it is a drug mixture or drug formulation that patients become easily dependent on and that is why Panadeine Forte is on schedule 4 of the Poisons Act and can only be obtained on prescription." (T.107.29)
Professor Starmer said that one of the effects of morphine was to cause drowsiness. It could also cause changes in mood and could cause what is referred to as "mental clouding". Professor Starmer pointed out that once [AB] was started on Panadeine Forte, the administration of morphine would probably have ceased. Professor Starmer thought that if mental clouding was occurring in relation to [AB], it would be due to morphine. Professor Starmer also explained that hallucinations as a result of morphine were reasonably common.
In relation to those issues, the following answers were given by Professor Starmer:
"Q. Is there any indication in the medical information that you received, that suggested that at any point he was, that is [AB], was suffering from any type of hallucination?
A. No.
Q. Is there anything in the medical reports that you saw which suggested that he was suffering from any mental clouding?
A. No but it would be very difficult to be sure.
Q. If a person was alert and reactive whilst on this medication of morphine, would that tend to suggest that he was not suffering from some type of mental clouding?
A. Yes.
Q. Is it the situation, sir, in terms of the position that you are in, you can't rule out some type of mental clouding in relation to this patient, [AB]?
A. No, I mean, I ended up with the thought that it was possible, but as indeed it is with anyone who takes morphine under the circumstances to experience that, I hate the expression but I can't think of a better one, the "mental clouding", but it is possible, but I can't say with any surety it did occur." (T.111.3)
Under cross-examination, it was suggested to Professor Starmer that the administration of certain general anaesthetics could cause a temporary loss of memory. He said:
"Q. I am not suggesting it is abnormal, but it is just the nature of the anaesthesia he underwent would also indicate something about the period of recovery or the effects it might have on memory?
A. Yes.
Q. Because anaesthesia can effect not only consciousness, but recollection?
A. Yes.
Q. It can create a situation where people imagine things?
A. It is worse than that. Having lost their memory, they often incorporate information that they have acquired from others, not with any real attempt, but because there is a genuine hole in their recollection." (T.114.11)
The following proposition was put to Professor Starmer in cross-examination:
"Q. The whole area of the effect of morphine and so on on cognitive functions, you're familiar with an article, "The effects of immediate and long term use of opioids on cognition in patients with chronic pain" by a number of worthy authors, some of whom have even referred to your writing?
A. Yes.
Q. Their conclusions are this, and I'll ask you whether you agree with it:
"There is a great need for more data to answer the critical questions of which cognitive functions are affected. So to what degree, with which opioids, at what dose level, after what duration of use and for which patients? The bulk of research has generally revealed a greater potential impairment in cognitive function with the use of opioids during the first few several days of use."
A. Yes.
Q. You agree with that?
A. That applies to methadone and all sorts of other things." (T.123.21)
In re-examination the following proposition was put to Professor Starmer by the Crown:
"Q. You were asked a number of questions about the effect upon an individual who had taken this medication of morphine in circumstances where answers were being suggested to an individual; do you recall being asked those questions?
A. Yes.
Q. Sir, if it's the situation that an individual such as [AB] is asked open ended questions which he then answers, does that give you some indication of his ability to answer questions?
A. It could do.
Q. And would it be of some importance that questions asked of him be open ended, that is, not suggest answers?
A. It would be cleaner.
Q. When you say "cleaner", can you explain that?
A. Well, I suppose what I was thinking about was capable of a single interpretation." (T.126.37 - 127.3)
Further evidence concerning the crime scene
In addition to the evidence of what [AB] was reported to have said when first spoken to by the police after the shooting, there was other evidence concerning the crime scene. All of the police who attended gave evidence that Al Zahab, El Husseini and [AB] were behaving aggressively towards the police at the scene. There was evidence that between 10 and 20 males of Middle Eastern appearance had come from nearby residences and were standing about the crime scene. There was also a small number of onlookers observed near the parked vehicles. Neither Al Zahab nor El Husseini when interviewed could provide any information about the identity of the shooter or the other persons in his car. Despite the directions of the police, onlookers were ducking under the crime scene tape and walking about the area. Police witnesses agreed that it was very difficult to control the crime scene.
Senior Sergeant Palywoda, in company with Constable Broadhurst and Detective Lowry, saw a baseball cap on the roadway. Sergeant Palywoda agreed in cross-examination that her statement contained no reference to the baseball cap. She explained that at the time she made her statement, the baseball cap was not thought to be relevant.
Constable Broadhurst also saw the baseball cap in the middle of the road in front of number 6 Kathleen Street. He also found one Winchester .38 auto round in the middle of Kathleen Street, in front of house number 8. These items were referred to in his notebook entry for the night.
The jury conducted a view of the crime scene on the evening of 19 June 2012. They viewed the relevant roads, i.e. Melrose Avenue, Kathleen Street and The Boulevarde, when it was dark. They observed the suspected location of the shooting outside houses 6 and 8 in Kathleen Street. The jury saw the intersection of The Boulevarde and Ernest Street and the location where the two vehicles stopped in The Boulevarde. Reference was made to a sketch plan drawn by one of the detectives at the scene.
Detective Sergeant Horn gave evidence concerning gunshot residue. He agreed in cross-examination that the decision to look for gunshot residue could be critical because there were time limits for such testing. Such residue was generally propelled 1 - 1.5 metres from a pistol, although a longer barrelled firearm would propel it further. He agreed that although various items were tested for such residue, the baseball cap was not. He agreed that had the baseball cap been worn by the shooter, one would have expected "some" residue on it. Detective Sergeant Horn was surprised that the cap had not been tested for gunshot residue.
Constable Edgar was another police officer who attended the crime scene. She observed the words "Omar 6A" written on the peak of the baseball cap. Presumptive tests were conducted on several stained areas on the cap, but no result was obtained. It was common ground that the applicant's younger brother, Omar Dib, was born in 1988 and was in class 6A at the Greenacre Public School in 2000.
The baseball cap was tested for DNA. DNA samples were taken from both the applicant and his brother, Mohammed Dib. Michelle Franco, the forensic biologist who carried out the testing, concluded that one of the areas on the cap contained a complex mixture from at least three individual contributors preventing the determination of the individual profile. The effect of that and other testing was that while the applicant's brother, Mohammed Dib, could be excluded as a wearer of the cap, the applicant could not.
Detective Constable Cini was a forensic ballistician who examined the lead projectiles recovered from [AB]'s car. He was able to establish that the unfired cartridge recovered from the roadway came from a different cartridge case to the bullets taken from the car and from the deceased and that it could not be fired from the same weapon. In relation to gunshot residue, he said that it would depend on the ammunition in each case whether the propellant or primer particles would "carry a distance of up to one and a half metres".
Detective Sergeant Grima was also a forensic ballistician. He examined the bullets found in [AB]'s car. He was satisfied that a total of four shots had been fired into the car. Of the bullets recovered, he was able to say that two had been discharged from the same weapon but was not able to express an opinion in relation to the other two bullets. He thought that the shots would have had to have been fired from some distance in front of the windscreen and downward in quite an angle, i.e. 20 degrees or more and that the shooter would have been firing downwards, or from a vehicle higher than that of [AB]. In the alternative, he thought that the hand and arm of the shooter could account for the angle of the shot. He also agreed that the unfired .38 cartridge retrieved from the roadway was of a totally different calibre to the bullets taken from the car and could not be fired from the same weapon. He would expect to find gunshot residue on the peak of the cap, depending on the proximity of the cap to the weapon.
Mr Molina made a statement to the police on 24 November 2000. He was then aged 47. At about 10.15pm on 23 November 2000 he was in Kathleen Street having come home from work. When he got out of his car, he heard engines revving and saw two cars drive past him in Kathleen Street very quickly. They were heading towards The Boulevarde. Mr Molina was standing at the front of his house at the time. He described one car as being white or light in colour and the other as either red/brown or darkish in colour. He described the white car as being just slightly ahead of the other car, but that they were almost abreast of each other. After a few seconds, he thought he heard noises that sounded like gunshots.
He observed that the white car was on the correct side of the road and the darker car was on the wrong side of the road. Otherwise he did not take any particular notice of the vehicles as they went past because it was dark. He described the conditions in Kathleen Street at the time as follows:
"A. It was night time, 10 o'clock and that street during that time it is a tree lined street, there were big trees exactly on the side of the road so even though there are street lights they not, they don't illuminate the street very well." (T.608.- 39)
In cross-examination Mr Molina agreed that it was very dark and that there was "absolutely no way you could tell how many people were in that car". From his side of the street, the red car was closer to him than the white car. He thought that there were five shots in total and that it took barely a second for the shots to be fired.
MB
Police had been unable to locate [AB]'s brother, MB. During his evidence, AB offered to contact his brother and get him to court which duly occurred. MB denied that he had ever been left alone with his brother in the hospital. He said that when he was taken to the St George Hospital by Detectives Karras and Apolony to see his brother, he asked [AB] what had happened. [AB] first gestured by raising his hands to each side of his head and pulling them down. He said that later [AB] wrote on a piece of paper "balaclava".
MB was cross-examined by the Crown, pursuant to s 38 of the Evidence Act 1995. He agreed that [AB] had written down the three names Basher, Dib and "Fairy" on a piece of paper. He said that the word "balaclava" was "maybe on another piece of paper, I don't know … the first thing he said was - made an action like this (indicated) balaclava and then he wrote the three names after I asked him who did this". (T.880.36) He agreed that he had given evidence on two previous occasions when he made no mention of balaclavas but denied that his evidence on this occasion was false.
Included in the exhibits was a photo of a revolver being fired, showing the flash thereby created (Ex 1). While the purpose of that exhibit was to demonstrate the blow-back of gunshot residue, it was also effective to demonstrate the flash effect associated with the discharge of any firearm, including a pistol.
The appeal
I propose to deal first with Ground 8. A consideration of this ground requires a close analysis of the evidence. Once that analysis has been carried out, it can, if necessary, be used and relied upon when considering the other grounds which are more narrowly focused. Moreover, if the applicant is successful on this ground, he is entitled to an acquittal whereas success on any of the other grounds would, at best, entitle him to a re-trial. It follows that this Court will have to consider this ground in any event. When considering this ground, I have accepted that all the evidence before the jury was properly admitted.
Ground 8 - The verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence.
The law
Subs 6(1) of the Criminal Appeal Act 1912 provides, inter alia, that:
"6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ..."
The correct approach to determining a ground of appeal which asserts that verdicts are unreasonable or cannot be supported was considered by the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400. The plurality (French CJ, Gummow and Kiefel JJ) summarised the relevant principles as follows:
"The task of the Court of Criminal Appeal
11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.""
There are other caveats. As McHugh, Gummow and Kirby JJ observed in MFA v R [2002] HCA 53; 213 CLR 606 at [59] the determination by an appellate court of the reasonableness of a jury's verdict "involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials". Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in (R v Micallef [2002] NSWCCA 480; 136 A Crim A 127 and Burrell v R [2009] NSWCCA 193 at [55]). Finally, the burden of persuasion that appellate interference is required rests with the party who impugns the verdict (MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at [370]).
The key issue in this trial was the identification of the shooter. There was no issue that all of the other ingredients for the offences with which the applicant was charged, had been made out. Because of the importance of identification, I am troubled by the part played by the DNA evidence. As his Honour made clear in his summing up, and as was conceded by the Crown, the DNA evidence from the baseball cap could not be used by the jury as part of the identification process of the applicant. The trial was run on the basis that the jury had to be otherwise satisfied beyond reasonable doubt of the identification of the applicant as the shooter before they could use the DNA evidence. In other words, while the DNA evidence was relevant to issues in the trial, in the sense that it and the finding of the baseball cap formed part of the background and context, the DNA evidence was irrelevant to the identification issue.
What troubles me is that a considerable amount of time in the trial generally and in the summing up was spent on the DNA issue when it was peripheral insofar as the fundamental question of identification was concerned. Although that point was made in the summing up, there was a real risk that the DNA evidence would have been misused by some members of the jury as strengthening the Crown's case on identification.
Although that is a different issue to that which is raised in this Ground of Appeal, it does feed into it to some extent. It needs to be understood that when considering the Crown case on identification of the applicant as the shooter, no weight can be given to the DNA evidence. It is irrelevant to that issue.
The applicant's submissions
The applicant submitted that the Crown case against him on identification comprised two strands:
1. [AB]'s identification of him in the hospital.
2. Evidence that he had a motive to kill [AB].
He submitted that the most important strand of the Crown case required the jury to be satisfied beyond reasonable doubt that [AB] had truthfully and reliably identified him as the shooter. He submitted that the evidence of motive was of marginal relevance. He submitted that even if one accepted that the evidence of John Lee was credible and reliable (which he did not) it went no further than establishing that he [the applicant] was one of a number of people in [AB]'s milieu who had a possible motive to harm [AB].
The applicant developed his submissions as follows. [AB] gave persistent and unwavering evidence in the face of protracted cross-examination by the Crown that he was unable to identify the shooter. [AB] gave evidence that the assailants were wearing balaclavas. This was consistent with the nature of the crime which involved other acts of concealment, e.g. the use of a stolen car and the incineration of the car immediately after the shooting. That evidence was corroborated by the evidence of what [AB] said in the immediate aftermath of the shooting when he said that he was unable to identify the assailant. The two other witnesses to the shooting, Al Zahab and El Husseini, gave evidence that they heard [AB] say that the shooter was wearing a balaclava.
There was an inherent contradiction in the Crown case. On the one hand, the Crown submitted that [AB] was untruthful in what he said at the scene of the accident and subsequent to leaving hospital, yet on the other hand what he wrote while in hospital was to be accepted as true. The Crown had not demonstrated why what was written in the hospital should be accepted as identifying beyond reasonable doubt that the applicant was the shooter, in preference to what [AB] said at the scene of the accident and in court. No motive was established for why [AB], Al Zahab and El Husseini should wish to exculpate the applicant. It was clear from their evidence that they had not colluded with one another in preparing their evidence.
It was clear why [AB] may have created an unfavourable impression on the jury. It was accepted that he had lost his temper on a number of occasions under cross-examination and made unresponsive outbursts. This was understandable in circumstances where he was giving evidence more than 12 years after the incident. He had been a victim of the crime and had suffered the loss of his wife. Although he denied on oath that he could identify the assailants, the authorities did not accept that denial and he was charged with perverting the course of justice. He had been arrested overseas and held in a Syrian prison for 7 months and tortured. He was extradited to Australia and was then accused of lying about the circumstances that caused the death of his wife and from which he barely survived (T.475.34).
It was against this background that what [AB] wrote in hospital was to be evaluated. If the Crown successfully established that [AB] was a witness completely lacking in credibility, then as a matter of logic, this impacted adversely on the weight which could be given to what he wrote in hospital.
Even if what [AB] said at the scene of the accident and in evidence was to be disregarded, there were other matters that cast serious doubt on the reliability of the identification evidence given in hospital.
The opinion of Professor Starmer impacted upon the reliability of what occurred in hospital in that high doses of morphine and the effects of anaesthesia might well have clouded [AB]'s thinking and adversely affected his recollection.
There were many inconsistencies and contradictions in the series of responses provided by [AB] in hospital.
[AB]'s identification evidence was obtained in a piecemeal and haphazard manner while in hospital without there being a reliable record of the dealings between him and the detectives.
There was evidence that the detectives attended hospital to interview [AB] with preconceived ideas about the applicant's involvement in that Detective Apolony's notebook (Ex BF) contained entries which related to the applicant, the applicant's brother and the Edward Lee investigation.
There were other circumstances prevailing at the time of the shooting which made reliable identification unlikely, if not impossible:
1. Darkness: In the summing up his Honour referred to the shooting taking place on the side of Kathleen Street which was opposite the street lights. The resident, Mr Molina, pointed out that Kathleen Street was a tree-lined street with big trees so that even though there were street lights, they did not illuminate the street very much and that he was unable to identify the cars because they were moving too fast and it was dark. He was unable to observe the number of occupants in the cars because of the darkness.
2. Muzzle flash from the pistol. It could be accepted (Ex 1) that the sudden muzzle flash of the pistol when the first shot was fired would have significantly interfered with [AB]'s capacity to make any useful observations thereafter.
3. The immediate commencement of the shooting and the rapidity of the shots, further reduced the opportunity and capacity of [AB] to identify the shooter.
4. The possibility of [AB] having been struck by one of the first shots would have further reduced his capacity to accurately observe.
5. The relative movement of the cars throughout the incident and the assailants' hasty departure would have further reduced the opportunity for observation.
In relation to motive, there was no evidence that the applicant knew that [AB] had given a statement to the Crime Commission on 13 July 2000 about the Edward Lee killing. The evidence went no higher than that the applicant was aware that [AB] could give evidence against him in relation to that matter. There was evidence that many other persons in the criminal milieu, with which [AB] was associated, had a motive to kill him.
There were serious problems with the evidence of John Lee. He was a convicted drug dealer, who received a substantial sentence discount (60 percent) for assisting the authorities. He was in a desperate state after his arrest and undergoing withdrawal at the time when he made a statement. He was heavily addicted and consuming drugs at the time of the events covered by his evidence so as to adversely affect its reliability. John Lee appeared to be suffering from memory problems when he gave his evidence. Despite having refreshed his recollection by reading his statement before giving evidence, he was unable to give evidence without being led in detail by the Crown through his statement.
Under cross-examination the effect of John Lee's evidence in chief was seriously undermined. The applicant had never admitted to John Lee that he was involved in the shooting in any way. John Lee never believed from his conversations with the applicant that the applicant was implicated in the shooting. John Lee gave evidence that the course of the conversations was triggered by the reading of a newspaper which referred to the shooting. The fact that [AB] was referred to by the applicant and others as a "dog" did not advance the motive issue very far since other named persons were also referred to as a "dog" and John Lee was not told what [AB] was said to have informed the police about. The reference by the applicant to a "hottie" (stolen car) was of only limited relevance since both his brothers were actively involved in car re-birthing activities.
The effect of the conversations referred to by John Lee after cross-examination was that, if they occurred, they were of a far more general character than was alleged by the Crown. The effect of John Lee's evidence was that the conversations were in the nature of loose talk amongst members of a criminal milieu. It would be inherently unsafe to draw specific incriminating inferences from this type of evidence, given its general nature and its source.
In oral submissions in the appeal, the applicant's case was put somewhat differently.
"… It wasn't an ordinary Crown case in assessing these witnesses of whether they were telling the truth or not. It was submitted by both sides that [AB] was a liar, so this idea that this person central to the Crown case could some how be assessed was one that required some qualification, at least in terms of what you do with the assessment of that witness. If you assess [AB] to be a liar, what do you do with that? How it does flow through into the process that you have to undertake?" (AT 61.39)
"The other way to look at this - and the problem that is brought up by all of this is ordinarily when you've a key Crown witness and you give a direction like that and you say well, you consider from the demeanour whether he was making an honest attempt to answer the questions truthfully and what that flags, if there is a prospect that the witness wasn't being truthful, that's going to impact negatively on the Crown case in the context of the onus of proof. Whereas here, you have actually got this odd reverse type situation where the key witness in the Crown case - what you are really interested in about the key witness in the Crown case is whether there was a possibility that he was telling the truth. In other words, not a question of whether there is a possibility he is lying. Can you tell from the demeanour whether he is lying? There is actually a chance that he is being truthful." (AT 64.1)
"One of the problems for the defence case is somehow the defence case became aligned with [AB]. [AB] was not by the time he gave evidence a particularly attractive character. Can I say this. Perhaps I should have prefaced my submissions with this. His Honour didn't have an easy job in summing up this case because it was a trial in which the sort of usual type of summing up where you go through the Crown witnesses and you put the various parts together wasn't going to be sufficient because ultimately what you are talking about is trying to sum up a case to a jury where the Crown case is entirely reliant on out of court statements made primarily by [AB], but also Mr Lee. You have got this case that has no actual in court testimony that the Crown relies on in the usual way. You have got a witness who, it's fairly plain, either truthfully or otherwise is certainly trying to assist. It would appear he would be trying to assist the accused. The Crown says well he is untruthful insofar as when you view him giving evidence you wouldn't accept he is a witness of truth but the hospital versions are in a sense attached in part to [AB], but they are also associated with the police witnesses and ultimately attain a degree of respectability as a consequence of their association with the police witnesses." (AT 64.42 - 65.9)
"The defence case wasn't entirely dependent on misconduct by the police officers but rather even if one accepted that the police officers had behaved entirely appropriately, it was necessary to stress to the jury that nonetheless there were issues having regard to the drugs to the various statements made in the unfolding of events …" (AT 68.14)
"… What was perhaps less obvious was the subtler case that even if one accepted that these officers conducted themselves entirely properly there was still real questions …" (AT 68.32)
"Except that ultimately you're still dealing with the question of what does the Crown need to establish proof of guilt and as soon as you start asking the question what needs to be established with respect to establishing guilt, even if you object - put it another way, let's say it wasn't the defence case at all, you still have to say to the jury "before you can be satisfied of the Crown case even without the defence case you do have these problems with Starmer and you do have to be satisfied as to the utterances in the hospital. In that regard you can't really properly look at the utterances in the hospital without looking at the earlier utterances and the unfolding." (AT 69.1)
The applicant submitted that insofar as what was written at the hospital was concerned, the jury was in no better position than this Court to assess it. Whereas the jury may have been in a position of advantage in relation to the evidence given by [AB] at trial, they did not have that advantage in relation to what was written in the hospital. The applicant submitted that it was likely that the defence case became somehow bound up with the credit of the main prosecution witness, [AB]. The jury may well have thought that if they disbelieved [AB] when he gave evidence about the assailants wearing balaclavas and accepted the truthfulness and reliability of the evidence from the two policemen, it followed that the identification of the applicant at the hospital must be correct. The applicant submitted that this reasoning was defective. What the jury needed to do if they rejected [AB]'s evidence at trial and accepted that of the police was to still critically analyse what happened in the hospital to see whether it was capable of establishing beyond reasonable doubt that he was the shooter. The applicant submitted that the evidence was not capable of doing so.
The applicant pointed out that there was another difficulty in relation to the Crown case. Normally one would be able to cross examine a witness such as [AB] in order to test how he was able to identify the shooter by reference to darkness, the discharge of the pistol and the position of the cars. This testing process could not be carried out because [AB]'s position at trial was that he did not see who the shooter was.
Crown submissions
The Crown submitted that the jury had clearly rejected [AB]'s evidence about the assailants wearing balaclavas and that they were entitled to do so because there had been no mention of a balaclava to the police at the time of the shooting, nor had there been any mention of a balaclava at the hospital. The evidence concerning the assailant's wearing balaclavas had only emerged after [AB]'s discharge from hospital and in the case of the other two witnesses, much later.
The Crown submitted that once that evidence was rejected, it was necessary to consider the evidence of what [AB] wrote in hospital. The Crown relied upon the fact that the very first response made by [AB] to the questions asked of him was to write "fairy". The Crown submitted that this was a clear and unqualified identification of the applicant which the jury were entitled to accept. That identification was confirmed subsequently by the statement written in Detective Apolony's notebook and signed by [AB]. The Crown submitted that there was ample time and opportunity available to [AB] to identify the shooter, given that the car in which the shooter was travelling had for a period of time driven behind [AB]'s car, then been level with it before the shots were fired. When one added to that the facts that [AB] knew the applicant well and would have been positioned no more than 2 metres from him when the cars were level, it was open to the jury to be satisfied beyond reasonable doubt that [AB] was able to identify the applicant.
The Crown submitted that on those issues the jury was in a better position than this Court because it saw [AB] give evidence and be cross-examined for a protracted period and was able to form an opinion as to his demeanour which was an advantage not available to this Court. This was of particular importance when the jury had to assess the reliability and honesty of [AB]'s "retraction" of what he had written in the hospital. Although the effect of demeanour was subtle, it should not be underestimated.
The Crown submitted that it was open to the jury to be satisfied that the applicant had a motive to kill [AB]. It was not in dispute that the applicant knew that [AB] was in a position to give evidence against him in relation to the death of Edward Lee. It was open to the jury to accept the evidence of John Lee that the applicant believed [AB] to be a "dog" and that the applicant seemed to have a particular interest in the shooting. The Crown submitted that this evidence was sufficient to allow the jury to draw an inference as to motive adverse to the applicant.
The Crown submitted that the crucial finding, which the jury was entitled to act upon, was whether they were satisfied beyond reasonable doubt that the applicant was the shooter. It did not matter who else was in the car and where they were seated. The Crown accepted that those matters may be relevant to reliability and credit but they did not directly impact on the fundamental question.
The Crown submitted that there were other indicia in what [AB] wrote in hospital which indicated that he was endeavouring to tell the truth at that time. The Crown referred specifically to the identification of the car in which the assailants were travelling as a maroon Pulsar. This evidence was verified when the car was subsequently found and linked to the incident. The Crown relied upon the diagram which showed that Monzer's car was in front of his car, approximately 15 metres away. The Crown submitted that this diagram was likely to be correct as it was consistent with other evidence on that issue (Ex BB). The Crown also relied upon the internal consistency of what [AB] wrote at the hospital. The Crown submitted that the contradictory evidence concerning Basher was readily explainable in that [AB] wanted to exact his own retribution on that person.
The Crown submitted that because of [AB]'s familiarity with the applicant, it would not have required much time for him to recognise him. The Crown submitted that on the assumption that the shooter was not wearing a balaclava or some other facial covering, and that the shooter was the applicant, recognition of him by [AB] would have been almost immediate. The Crown submitted that such recognition could have taken place immediately before the shots were fired. The Crown submitted that due weight had to be given to the evidence of Detective Apolony that what was written by [AB] in hospital was "maybe funny" rather than "maybe Fairy".
The Crown submitted that looked at as a whole, particularly the early exchanges between Officers Karras and Apolony on 24 November 2000, there is a clarity of thought in the responses of [AB] which is not consistent with the suggestion that his mind was clouded either by the residual effects of anaesthesia or by the dosage of morphine which he was receiving. The Crown relied upon the evidence of Professor Starmer to the effect that [AB]'s capacity to respond to "open" questions, i.e. non leading questions, was consistent with his mind being clear and not affected by medication.
The Crown submitted that the exchanges on 25 November between [AB] and the two police officers concerning witness protection also showed clarity of thought. This was particularly so in that [AB] was in effect making demands as a condition of providing information.
Consideration
There is a major problem for the Crown arising from what happened and what was said when police first arrived at the scene of the shooting. As was obvious and not disputed, there was considerable initial confusion. The police were not sure what had happened and when they ascertained that [AB] had been shot, they were not sure who had done the shooting. They were clearly concerned that it may have been either or both Al Zahab and El Husseini. It was in this context that three of the attending police officers gave evidence of what they heard. The evidence is set out at [36] - [40] hereof.
The evidence of Constable Campbell was that he said to El Husseini "Where's the gun? Who shot him? Who has a gun?" His recollection was that it was [AB] who responded by saying "Don't fucking say shit, there was no fucking gun, you don't know who fucking did it". The Crown submitted that this exchange should be interpreted as a warning by [AB] to El Husseini not to say anything to the police. I find that interpretation somewhat strained. This is particularly so in circumstances when [AB] knew that he had been shot and was seriously hurt (he was lying on the ground covering the wound in his neck at the time) and he knew at this stage that, at the very least, his wife had been seriously hurt. If Constable Campbell's evidence was the only evidence on the subject, it would be equally open to the interpretation suggested by the defence, i.e. that what [AB] said was directed at Constable Campbell and not at El Husseini and that [AB] was angry with the police for misinterpreting the situation and that he was rather bluntly trying to explain what had happened.
The latter interpretation is supported by the concession by Constable Campbell that the comments could have been directed to him and that the concluding sentence was "we don't know who fucking did it". Further support for that interpretation came from the evidence of Constable Callahan and Detective Inspector Hallinan. Both agreed that the concluding sentence was "We don't know who fucking did it". There was no doubt in Detective Inspector Hallinan's mind that [AB]'s comments were directed to the police, not to El Husseini.
It may have been that [AB]'s distrust of the police was so deep seated that even in circumstances where he believed that he had been seriously wounded and was possibly in danger of death, he would still be unwilling to co-operate with them. It is equally open to infer from what he said that in such circumstances he was being truthful, i.e. they did not have a gun and they did not know who did the shooting. In that regard, it needs to be kept in mind that [AB] had co-operated with the police in the Edward Lee killing.
The important consideration is that [AB]'s first comment in relation to the matter was a denial of any knowledge of who the shooter was. This was at a time immediately following the incident when his recollection would have been at its best and before it had been affected by other extraneous influences.
In referring to the evidence, I have entirely disregarded that of [AB], Al Zahab and El Husseini at trial concerning [AB] mentioning the word "balaclava", [AB] saying the Ashad and any attendance by a Muslim cleric. They were matters which depended upon the jury's assessment of what those witnesses said at trial. That evidence was clearly rejected by the jury and they were entitled to do so.
The importance of the evidence of the attending police officers is that it did not depend upon the credit of [AB] and was consistent. The kicking out by [AB] towards Detective Inspector Hallinan was consistent with him being frustrated and angry at the interpretation of the attending police of what had happened being so completely wrong. It is difficult to see what other motivation there could have been. It also seems difficult to argue against the proposition that at the time [AB] must have realised he was seriously hurt.
The jury were in no better position than is this Court to interpret what [AB] said as recorded by the attending police officers.
An important part of the Crown case was that when asked by Detective Karras "Can you tell me who did this to you?", without hesitation [AB] wrote in the notebook "fairy". The Crown submission is that this response was made without qualification or prevarication and was an immediate and responsive answer to the question.
While that submission is certainly available, it does not exclude two scenarios which are also equally available. These are that [AB] was reconstructing what he thought might have happened or that he was simply not telling the truth and deliberately named an enemy.
In support of the first of those alternatives, i.e. that [AB] was making a genuine attempt to reconstruct events so as to identify the shooter, is that immediately following "fairy" are the words "Did you show them statements?" Given that this interview took place at approximately 1pm on 24 November 2000 and [AB] left the operating theatre at about 2.30am, he had approximately ten and a half hours within which to think about what had happened. This undermines the spontaneity of the response upon which the Crown placed such reliance. In further support of that alternative is the proximity in the notebook of what [AB] wrote in relation to the "statements". It was accepted, of course, that the "statements" to which reference was made were the statements by [AB] to the police concerning the applicant's responsibility for the death of Edward Lee.
The fact that [AB] queried whether the "statements" had been shown to the applicant and did so on the same page and immediately after the entry "fairy" is strongly suggestive that he had been thinking of a motive for "fairy" being involved in the shooting before the two police officers spoke to him. While such an approach is still consistent with [AB] having actually identified "fairy" as the shooter, it is also equally consistent with him trying to work out who in fact was the shooter by reference to who might have had a motive.
Since these words were written in a notebook, which was simply placed before the jury, and which the police officers verified as accurate, the jury were in no better position than this Court to determine the meaning and inferences to be drawn from those entries in the notebook. I can see no logical basis for how it was open to the jury to find beyond reasonable doubt that one interpretation was correct and that the other was not.
If anything, the third entry on that notebook page "Why did this happen?" is consistent with both interpretations since the response of Detective Karras is contrary to [AB]'s belief as to motive at that time. This is either because he actually recognised "fairy" or because this motive formed part of the process of reconstruction which led him to conclude that "fairy" was the shooter. The written response to the question about the car does not take the issue further.
The subsequent entry on Ex AK is difficult to place in time. It was written by [AB] on the same occasion as the earlier entries and on the same notebook but as Detective Karras pointed out (T.641.18) the process of putting questions to [AB] and him writing his responses was interrupted during the whole of the time by nursing staff providing treatment. That fact and the final written response "I want to sleep" gives rise to the issues raised by the evidence of Professor Starmer, i.e. not only that [AB] had been seriously injured but that he was emerging from the effects of a general anaesthetic and had received a high dosage of morphine. Not only does that impact on what interpretation should be given to what [AB] wrote but it impacts on the reliability of the whole exchange generally. In that regard, it should be kept in mind the third scenario is that [AB] may have been simply lying with a view to implicating the applicant.
The next exchange which took place at 2.35pm was quite different to the first. [AB] was not co-operative and his answer to at least one question was not particularly responsive. Was this the effect of medication? Had [AB] simply changed his mind? Did he change his mind because of what he was told by Detective Karras in the first interview? In any event, the content of this second exchange between [AB] and the detectives in hospital does not provide a strong basis for regarding [AB]'s responses as reliable.
That unco-operative approach continued in the third exchange at 3.22pm. Even at that early stage, [AB] was endeavouring to negotiate with the police, albeit unsuccessfully. Again, this exchange impacts adversely on the reliability of what [AB] wrote in hospital.
What occurred at the fourth meeting
Ex AN is controversial. The Crown relies upon the evidence of the detectives that what [AB] wrote was "Maybe funny". Of course their evidence on that issue is of no probative value. They did not hear [AB] say anything. All that happened was that they were present when he wrote a response to a question. This Court is in as good a position as the detectives and the jury to interpret what was written. The second word is scrawled. I found it equally consistent with being interpreted as "fairy" as "funny". As already indicated, I find the answer "Maybe funny" to be completely unresponsive to the question asked. The answer "Maybe fairy" while also not completely responsive, certainly makes more sense than that suggested by the Crown. Importantly and persuasively, it is in line with the truculent attitude displayed by [AB] in the two earlier meetings at 2.35pm and 3.22pm.
The further response, spontaneously written by [AB] in the course of 3.38pm meeting, is difficult to understand. It is not clear what assistance [AB] was asking for, nor is it clear what assistance Monzer could give to the police. That, of course, assumes that during the course of this meeting [AB] was lucid and unaffected by medication.
There is no doubt that at the end of that meeting, [AB] signed a statement to the effect that "fairy" shot him and his wife the previous night. His change of mind and apparent co-operation with the detectives in contrast to his approach earlier in the day is unexplained. Moreover, there remains this issue. If, as clearly happened, the jury disbelieved what [AB] said in court and accepted the Crown's interpretation of what he said at the crime scene, on what basis were they able to find beyond reasonable doubt that his identification of "fairy" as the shooter in hospital was truthful and reliable.
That problem is highlighted when consideration is given to the result of the discussion between [AB] and his brother, MB, which took place at 9.15pm that night. As a result of that discussion, MB produced to the two detectives the names of three persons whom he said were in the car. That, of course, contradicts what [AB] said in the first meeting about "fairy" being in front and not knowing who was in the back (and also by implication, who was the driver). It also is inconsistent with the circumstances of how the shooting occurred.
This highlights a further problem with what was written by [AB] in the hospital. Does one accept as truthful and reliable what [AB] wrote at 1pm or what he wrote at 9.15pm on 24 November 2000 and on what basis does one choose between what appear to be two incompatible statements. This is despite the fact that there is a consistency in the identification of the applicant. My difficulty is in identifying a logical basis available to the jury for preferring one part of [AB]'s evidence and rejecting all the rest.
There are a number of other difficulties which emerge when one looks at what [AB] wrote while in hospital. For example, the written responses to the questions asked of [AB] set out in Exs AU, AV and the early part of AW, are simply not responsive to the questions asked. In the first exchange, it is clear that [AB] was still convinced that the police had shown the statements which he had made concerning Edward Lee, to the applicant. In any event, [AB] in his responses on that day was essentially unco-operative and in Ex AX was attempting to negotiate a witness protection arrangement. The exchanges in those exhibits do not demonstrate a clarity of mind such as one would expect in somebody who was unaffected by medication. On the contrary, except towards the end of Ex AX, the answers written by [AB] to the questions asked were at best only marginally responsive. It is against that background that the second statement (Ex AZ) was written and signed.
The subsequent exchanges between the detectives and [AB] in hospital focused essentially on whether Basher was in the car and what part, if any, was played in the shooting by Marrickville Sam. A fair reading of the exchanges shows that [AB] was prepared to provide conflicting information as to the presence of Basher in the car, depending upon his particular whim at the time.
Taking into account the whole of the exchanges between Detectives Karras and Apolony and [AB] at the hospital, I am unable to be satisfied beyond reasonable doubt that what he said there is to be taken as reliable and honest as distinct from what the attending police officers recorded at the scene of the shooting when they attended. In reaching that conclusion, I accept that it was open to the jury to reject the evidence of [AB] at trial containing as it did so much additional detail which was not mentioned at the times and places one would have expected such matters to have been referred to.
The jury clearly accepted what [AB] wrote at the hospital as reliable. As indicated, I have difficulty in identifying a logical and acceptable basis to underpin that finding. What may well have happened, as the applicant submitted, was that the jury's acceptance of this evidence was a product of the way in which the trial was run.
Detectives Karras and Apolony were cross-examined at length and it was submitted on behalf of the defence that their evidence was not honest and accurate and that they had suggested to [AB] that the applicant was the shooter. This challenge to their evidence was also clearly rejected by the jury. In doing so, however, the jury may well have thought that once the challenge to the detectives' evidence was rejected, it followed that what [AB] had written in the hospital was reliable and truthful.
As a matter of logic that conclusion does not necessarily follow. What had to be done was to assess what [AB] wrote in the hospital on its merits and to determine quite separately from the police evidence whether it was truthful and reliable. In carrying out that process, the jury were in no better position than this Court. Their advantage of having seen and heard [AB] give evidence in the trial would not have assisted them in performing that function. On the contrary, the assessment they must have made of that evidence at trial was that [AB] was untruthful or unreliable or both.
For the reasons set out above, I have real doubts as to the reliability of what [AB] wrote in the hospital, in particular, his identification of the applicant as the shooter. Had the jury carried out the same critical analysis of that evidence they should have had the same doubt.
The evidence as to the applicant's motive is thin. In that regard, the submissions of the applicant at [132] - [135] have considerable force. There was no evidence that the applicant was aware of the statement made by [AB] to the police. The evidence of John Lee went no further than to establish that [AB] (like some others who were named) was thought to be a police informer and that the subject of his wounding and his wife's murder was actively discussed by persons within the criminal milieu, including the applicant after its occurrence.
There is another consideration which has to be taken into account. Even if one completely disregards (as the jury must have done) the defence case that the shooter and others in the car with him were wearing balaclavas, the circumstances of the shooting were such that there were otherwise inherent difficulties in [AB] being able to identify the shooter.
[AB]'s evidence of the events leading up to the shooting was not challenged by the Crown. On the evening of 23 November 2000, having returned home from a visit to the Lakemba Mosque with his friend, Al Zahab, he and his wife decided to take their son, go for a drive and have something to eat. They were joined by his friends, Al Zahab and El Husseini, who were driving ahead of them in another car. At a point in Kathleen Street, [AB] brought his car to a halt when a car behind flashed its lights. When [AB] failed to recognise the car, he commenced driving forward again. The other car then drew level and shots were fired when it was slightly in front of [AB]'s car.
The Crown submitted that it would have been possible for [AB] to identify the persons in the other car when it was positioned behind his car and when it drew level and drove past. There is no evidence to support that submission. On the contrary, to the extent that there is evidence, it is to the opposite effect.
The unchallenged evidence of [AB] was that having initially stopped when the lights flashed from the car behind, he commenced driving again because he did not recognise the car. Implicit in that evidence is that he did not recognise anyone in the car. That is not surprising given the time of night and the poor lighting which was prevalent in Kathleen Street at the time, as described by Mr Molina.
The jury had the advantage of participating in a view of Kathleen Street at night. We do not know what observations they made. Some idea of what they saw can be extracted from the following part of the trial judge's summing up:
"You will have to consider the light. As far as we know the light on the night was something like the light on the night that we all went to Kathleen Street." (SU 25.9)
"[AB] had the maroon pulsar coming up on his offside on the driver's side and the shots fired. Now, there were - if that was so, and if it did happen in that place that has been suggested to you, then you know that there were no lights on the street that would have illuminated the faces of persons in the car - in the pulsar - from [AB]'s point of view. The lights were all on the other side of the street, on the eastern side of the street and the maroon pulsar was on the eastern side of [AB]'s car." (SU 26.8)
Accordingly, I do not accept that it would have been possible for [AB] to have identified anyone in the assailant's car until it drew level with his car and even then, for the reasons given by his Honour, identification would have been very difficult.
The only two factors favouring an ability to identify the assailant was that [AB] did know the applicant and that the distance between him and the shooter at the time the shots were fired would have been approximately two metres. All the other factors are against identification being possible in the circumstances prevailing on that night. Even such identification assumes that before the shots were fired, [AB] must have turned and looked towards the front seat passenger in the other vehicle.
There are other matters which tend strongly against [AB]'s ability to identify the shooter. The muzzle flash (as shown in Ex 1) produced by the first shot would have had the effect of destroying [AB]'s night vision and preventing him from making any further useful observations.
The only evidence is that the shots were fired very quickly. Consistent with that evidence, it can be inferred that an assailant driving up alongside a target vehicle and firing into it, would do so as quickly as possible. Accordingly, the time available for any identification would have been very short and would only encompass the period up until the first shot was fired.
There is no evidence as to which of the fusillade of shots struck [AB]. From that point onwards it can be safely inferred that [AB]'s ability to make any identification must have been destroyed. The evidence of Mr Molina as to the speed of the cars, the rapidity of the shots and lighting conditions generally provides further support for the applicant's submission that it was not open to the jury to find beyond reasonable doubt that in the circumstances of this shooting, [AB] was capable of identifying his assailant.
Even if that proposition were not accepted, what does seem clear is that in the circumstances prevailing on the night of 23 November 2000, it would not have been possible for [AB] to identify the persons in the car other than the shooter. That factor must place very considerable doubt on the reliability of what [AB] wrote in the hospital when on two occasions he purported to identify the other persons, apart from the shooter who were in the shooter's car.
Conclusion
Even though the jury was entrusted with the primary responsibility of determining guilt or innocence in this matter, my analysis of the evidence has led me to conclude that it was not open for the jury to be satisfied beyond reasonable doubt that the applicant was the person who shot [AB] and the deceased. The evidence has left me with a reasonable doubt on that issue and that is a doubt which the jury should also have had. It is not a doubt which could have been resolved by the position of advantage of the jury in seeing and hearing the witnesses. In relation to the crucial evidence on which the identification of the applicant turned, i.e. what [AB] wrote in the hospital and what the police who attended the scene of the shooting saw and heard, this Court is in as good a position as the jury to make an assessment.
This ground of appeal has been made out.
In view of the applicant's success on this ground which entitles him to an acquittal, there is no need to decide the other issues raised on the appeal which primarily concern the admissibility of evidence. I have reached the conclusion which I have on the basis that the evidence before the jury was properly admitted. Any success which the applicant may have enjoyed in relation to the other grounds would only confirm that result. In those circumstances, the proper order is for a verdict of acquittal to be entered.
The orders which I propose are as follows:
1. Leave to appeal be granted and the appeal be allowed.
2. The jury's verdict of 9 July 2012 be quashed and in lieu thereof a verdict of acquittal be entered.
3. The applicant is to be released from custody forthwith.
ADAMS J: I agree with Hoeben CJ at CL.
McCALLUM J: I agree with the orders proposed by the Chief Judge, for substantially the reasons his Honour has stated. I would respectfully not share his Honour's view that [AB] could not have identified the shooter. On my assessment of the evidence, it is possible that he had the opportunity to identify the applicant and to do so reliably. The critical problem for the Crown is the impossibility, in the circumstances, of excluding the reasonable possibility that he did not in fact identify the applicant but only nominated him as the person he believed must have been the shooter. On that issue, I would respectfully adopt the Chief Judge's careful analysis of the reasons the jury ought to have entertained a reasonable doubt as to the applicant's guilt.
[3]
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Decision last updated: 15 February 2016