Hoblos v R

Court of Criminal Appeal (NSW)|2013-11-22|Before: Hoeben CJ, Blanch J, Hulme J, Grove AJ, McCallum J

Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2BLANCH J: I agree with R A Hulme J. 3R A HULME J: Mohammed Hoblos ("the applicant") stood trial on a charge of murder before Grove AJ and a jury of 12 in February 2012. He was found guilty. He was sentenced to a term of imprisonment for 28 years with a non-parole period of 21 years. He now seeks leave to appeal but only against conviction. 4The proposed appeal was initially based upon three grounds but only two were pressed at the hearing of the application: that the verdict was unreasonable and cannot be supported by the evidence and that the directions given to the jury by the trial judge concerning the applicant's liability for murder were wrong. 5Leave to appeal is required because the first ground does not raise a question of law alone (s 5(1) of the Criminal Appeal Act 1912 (NSW)) and the second ground, even if it could be characterised as raising a question of law alone, raises an issue not raised at trial: r 4 of the Criminal Appeal Rules. 6For the reasons that follow, neither ground can be sustained and, although leave should be granted, the appeal should be dismissed.

Principles concerning asserted unreasonable verdicts or verdicts that cannot be supported 7McCallum J, usefully and succinctly summarised the principles recently in LP v R [2013] NSWCCA 330: [10] In determining an appeal on that ground, the task for this Court is to make an independent assessment of the evidence both as to its sufficiency and its quality. The test is whether the Court 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: M v R [1994] HCA 63; (1994) 181 CLR 487 at 493; MFI v R [2002] HCA 53; (2002) 213 CLR 606. However, the test is not one directed at assessing the legal question whether the evidence is capable of supporting the conviction. The issue for this Court is a question of fact. The requirement is for this Court to assess the evidence independently and to consider whether it entertains a reasonable doubt as to the accused's guilt.

The competing cases briefly 8The Crown case was that the applicant was one of three men who attended a 21st birthday party in Merrylands on the evening of 25 April 2009. Two men wearing hooded jumpers entered the rear of the premises and went straight to the dance area. One of the men produced a handgun and fired five shots into the body of Hilal Merhi, the impact of which was fatal. The two intruders then quickly left the premises and entered a waiting car. The driver of that car quickly drove away. The Crown contended that the applicant was one of the three participants in a very public execution-style murder but did not attempt to assign a precise role to him. 9It was the defence case that the Crown had not demonstrated beyond reasonable doubt that the applicant was one of the two intruders or the driver of the getaway car. The applicant was present outside the premises that evening but only by way of an indirect invitation from Mohamad El-Hage to the party. He did not enter the party and was not involved in the killing.

A matter now in issue but not at trial 10While it was contentious in this Court, there was no dispute at trial that the two hooded men and the getaway car driver were guilty of murder. The shooter was directly responsible for the act causing death which had to have been committed with an intention to kill or to inflict grievous bodily harm. The other hooded man was either an aider and abettor or a participant in a joint criminal enterprise with the shooter. The getaway car driver was also a participant in a joint criminal enterprise to murder. 11As can be seen from the above summary, the primary issue was whether the applicant was one of those three men. The trial judge indicated prior to his summing up that this was how he perceived the case had been conducted and he proposed to say as much to the jury. Counsel then appearing for the applicant explicitly declined to take issue with his Honour's proposal and nor did she make any submission to the contrary in her closing address. The judge told the jury in his summing up that "no one has actually suggested that the shooter, the person that went in, and the driver, would not be guilty [of] the murder" and that "the real issue" was whether the Crown had proved that the accused was one of those three people. 12I will return to this issue but for the moment simply record that there was a sound evidentiary basis for it being conceded by the applicant at trial that the driver was also guilty of murder.

The murder scene 13The murder occurred at a house in Davies Street, Merrylands. Looking from the street, the house was on the left side of the block and a garage was on the right. Access to the rear yard could be gained through a gate between the house and the garage. At the rear of the house was a covered patio and to the rear of the garage was another area referred to as a carport. There was a grassed area adjacent to the patio and carport. 14The party guests seemed to have congregated mainly in the patio area where there were seating and tables; drinks and food were available here. The carport area was being used as a dance floor. 15The shooter and his companion proceeded through the gate between the house and the garage. The shots were fired immediately after they entered the dance area in the carport. One witness, who was in very close proximity, estimated that there were about 20-30 people on the dance floor at the time (AB 321-2) while another witness said it was very crowded and estimated "maybe 100" (AB 175). The two men returned to Davies Street via the same gate, turned left and went to the getaway car that was parked about two houses away on the same side of the street with the engine running. They jumped in the car, which was then driven quickly away.

Eyewitness testimony concerning the shooting 16Tania Merhi was hosting her 21st birthday party at her home. About 150 people attended but she did not know them all. (Another witness estimated 200). One of the guests she invited was Mohamad El-Hage. He brought a friend, Hilal Merhi, the deceased (who was no relation to Ms Merhi). 17Ms Merhi told the jury that there was music being played and the dancing started at about 8.30pm. The music stopped at about 11.00pm and there were speeches and the cutting of a cake. The music then resumed and people returned to the dance area. 18Ms Merhi was on the dance floor when she heard some loud bangs. She thought they were firecrackers but then she heard people screaming. She saw a male lying on the ground and she heard people saying he had been shot. She thought this was at about 11.15 or 11.20pm. (There was evidence that the first call to triple 0 was made from a landline telephone inside the house at 11.17pm). She saw people running out of the premises and off down the street. 19Amira Bouzini was Ms Merhi's cousin. After the birthday speeches she noticed two males approaching from the side gate. They both wore hooded tops and the hoods were over their heads. She provided a description of them. 20Ms Bouzini said that the men walked like they knew where they were going; "they didn't appear to look through the people to find what they were looking for". She said they walked straight into the dance area with their heads down and hoods on. One was slightly ahead of the other. The one in front then grabbed the arm of a man on the dance floor, turned him so as to face him and then produced a gun and fired into his chest. Ms Bouzini immediately ran to her children inside the house. She thought there were three shots. As she ran, she turned and saw the two men running away in the direction from which they had come. 21Ralph Farah was on the dance floor when he saw two men arrive. He first noticed them near the gate. They were both wearing hoodies. He saw them go to the dance floor and walk directly to the deceased where one of them pulled out a gun and shot him. Mr Farah was standing close by. He thought there were four shots. The two men then ran out the gate. 22Mr Farah followed the men and saw that they turned left when they were out in Davies Street. There was a car with its engine running parked about two houses down on the same side of the street as the party. The two men entered it and the car was driven away quickly. 23Maroun Draybi was standing at the drinks table when at what he thought was about 11.00pm he heard three loud bangs. He turned and saw a person with a handgun. The person was wearing a long-sleeved hooded jumper and he was unable to see the face. He said a crowd of people ran out towards Davies Street. 24George Loulach was on the dance floor with about 30 or 40 other people when he heard a loud bang from 2 or 3 metres away. He turned and heard two more bangs. People scattered everywhere and ran out the front. He saw a man lying in the middle of the dance floor. He could not make out what the man with the gun looked like because he was focused on the gun itself, but he did provide something of a description. He thought the man was wearing a hoodie but the lights were off when they were dancing; the lighting came from the drinks area. 25Adele Conchon was out the front of the house where she saw the deceased, who she did not know, and spoke to him for a couple of minutes. He returned to the party and then, within a few minutes, definitively within five minutes, she saw two men arrive wearing hoodies and trackies. They came from the direction of Price Street (the direction where the getaway car was parked). One was in front of the other. The one in front was walking faster than a normal walking pace, sort of like in a marching fashion. Ms Conchon continued talking with her friends but then about 10 to 15 seconds later she heard two bangs, a pause, and then another bang. About 2 seconds later people started coming out of the gate, pushing and shoving. She went inside and saw the deceased lying on his back in the middle of the dance floor. 26Sari Rabadi was standing on the grassed area after the speeches and after people had resumed dancing. He heard a number of bangs. He saw someone "power-walking" away from the man who had been shot. He provided a description of the person walking away, including that he had a hooded jumper with the hood up over his head and face. There were a lot of people running out the gate and screaming. 27Rafi Kafalian was also standing on the grassed area. He heard a number of bangs, looked and saw a person wearing a hoodie with the hood up shooting. He saw the gun and after it was fired the man ran. 28Tamara Rabadi was on the dance floor when she heard four or five loud bangs. She turned and saw someone drop to the floor. She did not see anyone with a hood over his head. She went to look for members of her family. 29Nasser Fachich was standing under the carport when he heard three bangs and saw a man running through the crowd. The lights went on and he saw the deceased on the ground. 30Harinder Chaggar was standing about 5-6 metres away, facing the dance floor, when he heard three shots. He thought it was a cap gun but then saw the deceased fall to the ground. He saw two men run off out the side gate and provided a description including that they had hooded jumpers with the hoods up. A lot of people ran out the gate. The DJ announced that police were on their way and if people did not want to get involved they should leave immediately. Mr Chaggar saw people leaving the house and going both to the left and the right. Some people were screaming. 31Jalil El-Zaouk's evidence added an additional dimension to the eyewitness testimony. At about 10.00pm, or about half an hour to an hour before the shooting, he was standing out the front of the house talking on his mobile phone. He heard a male also talking on a phone saying, "There's gunna be a fight". This man was Lebanese, in his 20's and wearing a white shirt or jumper. The man was "with four other boys, all Lebanese". Mr El-Zaouk went inside. He did not see these men again. 32A little after 11.00pm Mr El-Zaouk was dancing. They were doing a Lebanese dance that involved holding hands. He was holding the deceased's left hand when he fell on him and fell down. Rather extraordinarily, Mr El-Zaouk did not hear any gunshots. He lowered the deceased to the ground and then looked up to see a man running away. The man was wearing a hooded jumper and he provided other descriptive details. 33Bill Merhi was standing near the cake table when he heard a couple of bangs. He looked over and saw a man with a hood pulled over his face run off towards the gate. A large number of people also moved in that direction and he followed them. When he returned he saw a man lying on the dance floor being assisted by others. 34Michael Sammour was out the front of the house when the speeches were made and when he returned to the party he saw that people were dancing. He heard a loud shot; people started screaming; and then there were three more shots. He was standing about three metres from the gunman. People started running everywhere. He saw a man lying in the middle of the dance floor. 35Ahmad El-Masri was near the cake table when he heard a bang. He turned and saw a large number of people crouching down with their hands above their heads. There were two or three further bangs. He saw a man holding a handgun and he provided a limited description of him. He saw a man stumble and fall to the ground and he tried to render assistance. He heard a man say, "I knew I shouldn't have brang [sic] him here. Why did I bring him?". (It is to be recalled that Tanya Merhi said that Mohamad El-Hage brought the deceased to the party). 36Noelle Abedrabbo said she was acquainted with Mohamad El-Hage. She was out the front talking to Mr El-Hage when she heard some bangs. She then noticed that Mr El-Hage was no longer present. She explained that there was a bit of a delay noticing that he was not there because she was intoxicated; she was "really, really drunk". 37Ms Abedrabbo told police that she rang Mr El-Hage the next day and he told her that his friend was dead. She said he sounded like he was in shock and was upset. He told her that his phone battery had died the night of the party. (The latter is relevant to calls made from the applicant's phone to Mr El-Hage). 38Andrew Baissari was near the drinks area when he heard a loud bang behind him. He turned and saw a man who then turned and ran towards the gate, "going as fast as he could". A description of this man was provided, but he did not see the man's face. Mr Baissari then became aware of the deceased on the ground and people attending to him.

Eyewitness testimony concerning descriptions 39There were a host of problems with witnesses providing accurate descriptions of the two intruders. Apart from the problems with lighting, the crowd of guests, the very quick entrance and exit of the two intruders and matters of that nature, there was also the natural reactions of people witnessing such a dramatic and traumatic event. Counsel for the applicant put a number of descriptions to witnesses (with which they agreed) about the general nature of the scene: some people were screaming and others were physically ill; there was pandemonium; it was chaotic, very stressful and shambolic; and there were people who were freaking out and yelling. The considerable degree of variance in witness accounts about the shooting itself (summarised above) indicates a need for circumspection in considering the descriptions provided. 40The Crown did not rely upon the eyewitness testimony to establish that the applicant was one of the two hooded men. Whilst it was conceded that it was incapable of proving that he was, it was also contended that it was incapable of proving that he was not. 41In his opening address to the jury the Crown Prosecutor said: [Y]ou will hear that the description of the men wearing the hoods is inclusive of the physical size and dimensions of this accused. But I emphasise there are no witnesses who can identify this accused or any other as being the person that they saw on the night of the 25th. 42On the other hand, the applicant, both at trial and in this Court, drew attention to the unreliability of certain aspects of the eyewitness description evidence but at the same time pointed to some features and argued that he could be excluded. 43The descriptions given by the eyewitnesses of the shooter and his companion varied widely. It is little wonder that the Crown contended that, although the applicant was not positively identified, he could not be excluded. 44The variation in descriptions was most stark in relation to the colour of the hooded jumper that each of the shooter and his companion wore. There was general consistency in witnesses saying that one wore a dark jumper whilst the other wore a white jumper. But the witnesses Draybi, Loulach and Sammour thought the shooter was wearing the dark jumper whereas the witnesses Farah, Kafalian, Chaggar and El-Masri thought he was wearing a white or grey jumper. Potentially adding to confusion was the evidence of Jalil El-Zaouk that "quite a few" people at the party were wearing hoodies and "quite a few of them would have been white". 45Estimates of the height of the shooter ranged from "about 6-foot" or 180 cm (Loulach T54; Sammour T133) to about 160 cm (5' 3") (Farah T64). The applicant was 5' 8" or 172 cm tall and two witnesses gave estimates consistent with that: "a bit taller than" about 170cm (Chaggar T110); and about 170-175cm (El Masri T161). 46Estimates of the height of the shooter's companion also varied: "maybe 165cm" (Farah T64); "a bit taller than" about 170cm (Chaggar T110). These could not be said to exclude the applicant. 47Some of the witnesses could only describe one of the men, without saying whether the man was the shooter or the companion. Mr Rabadi saw a man wearing a white hoodie leaving quickly immediately after the shooting who he estimated to be 180cm tall (T81-2). Mr El-Zaouk saw a man wearing a black hoodie running away who was 165-170cm tall (T114). Mr Baissari saw a man running towards the gate after the shooting and he was "a bit taller" than himself. Mr Baissari was unsure how tall he was himself, "170, 160. Maybe, I don't know" (T197). 48There were witnesses who saw two men but were unable to ascribe their roles. Ms Adele Conchon saw two men approaching the house, one wearing a white hoodie and the other a black hoodie. She said they were somewhere in between being "really, really short" and "really, really tall" (T122). Ms Bouzini saw two men coming into the backyard; one of them who was wearing a dark hooded jumper was about the same height as herself (she was 160-161cm tall) and the other, wearing a white hooded jumper, was taller "but not considerably" (T173). 49Other aspects of the descriptions given by the eyewitnesses concerned variable or inconsequential matters, or matters about which there was expected to be imprecision. 50Some of the witnesses described seeing writing or a logo on the jumpers worn by the intruders (but a considerable number of witnesses either did not see such things or did not recall). Mr Farah said the white hooded jumper worn by the shooter had a "Champion" logo written across the front in black letters with white lines around the edges of the letters and the other man's dark jumper had little pictures or logos all over it (T64). Ms Conchon said the white hoodie she saw had writing all around the outside and there was "the colour yellow in there somewhere" (T122). Ms Bouzini said one of the jumpers, she could not remember which, had the word "Mooks" on it (T171). Police searched but did not find any such apparel in the applicant's possession. With clothing being such a disposable item, there could be no exclusion of the applicant on this account. 51Generally in relation to the eyewitness descriptions, the written submissions for the Crown referred to most of the witnesses giving various reasons for their inability to provide more detailed or confident evidence on this subject: the darkness of the area; viewing events through a crowd; and hoods on the heads of the men. Also requiring allowance was the compromised opportunity for the witnesses to clearly see and take note of the intruders, the relative brevity of opportunity, and the traumatic nature of the incident. 52I earlier mentioned that the submissions for the applicant involved seizing upon certain features of this body of evidence and arguing that he was excluded. One example of this involved reference to the evidence of Ms Bouzini who said that one of the men who was 161cm or shorter and wore a dark blue hooded jumper. She said that this man also wore a sword shaped charm on a necklace. She recognised it "to be the sword that Muslim people wear". Of the many eyewitnesses, Ms Bouzini was the only person who claimed to have noticed this. 53The applicant gave evidence that he was a Sunni Muslim; people who adhered to other branches of the Muslim faith wore such charms but not Sunni Muslims. His evidence in the latter respect was supported: Mohamad Qadoura (T153); Ahmad Muslmani (T157); and Suzy Dzevlan (T191). Ms Dzevlan also supported the applicant's evidence that he did not wear such a sword shaped charm. No such charm was founding during police searching. 54The Crown Prosecutor sought to meet this by suggesting in his closing address to the jury that the sword charm might well have been worn as part of a disguise: "the hood's a disguise; why shouldn't the sword be one as well". Senior counsel for the applicant in this Court was critical of that submission. Counsel for the applicant at trial dismissed it in her address to the jury as "sheer speculation" (T381). Senior counsel for the Crown in this Court responded that the applicant's criticism was unfounded because there was no evidence as to why such a charm was worn, whether it was a matter of religious affiliation or otherwise. Accordingly, the evidence was neutral and did not exculpate the applicant. Additionally, it must be observed that the competing submissions assume acceptance by the jury of the correctness of this aspect of Ms Bouzini's evidence. Given the very limited lighting, and the traumatic nature and rapid occurrence of events, it would have been open to the jury to consider she might have been mistaken. 55In his closing address, the Crown Prosecutor concluded on this point about the sword by submitting (pertinently in my view), "at the end of the day, I suggest to you it doesn't matter, you don't have to prove [sic - be satisfied] beyond reasonable doubt that [the applicant] was the second man or not the second man" (T366.3). 56Another example of the attempt to exclude the applicant as one of the two intruders was the following reference in the written submissions for the applicant: The only eye-witness who saw the men's faces, Mr Farah, stated that neither had facial hair. 57The applicant gave evidence that at the time of the party he had "a goatee, moustache, bit of hair, bit of a beard". Mr Ahmad Muslmani gave evidence that the applicant had facial hair, a "black goatee beard around the side of his face" and, he thought, a moustache. A photograph of the applicant (Exhibit 2) is consistent with Mr Muslmani's description but the jury could well have concluded that his facial hair would not be a prominent feature at night and under a hood. 58In relation to Mr Farah's evidence, the jury would no doubt have assessed the entirety of it and not just the odd answer given in cross-examination. Mr Farah agreed in his evidence in chief that in his police statement made soon after the murder he said of the gunman: I could not see his face because he was wearing a hooded jumper with the hood over his head which covered the top half of his face. I couldn't say what colour skin he had. 59In relation to the gunman's companion, Mr Farah said in his statement: The guy was also wearing a dark grey hooded jumper with a hood over his head and cover part of his face. I couldn't say what his face looked like or what colour skin he had. 60Mr Farah was standing near to the deceased in the middle of the dance floor when he was shot. He said it was dark on the dance floor apart from a bit of light from the drinks area. There were about 30, or 20 to 30, people on the dance floor. 61In cross-examination, Mr Farah agreed that he had said in his statement that "the guy activated a sensor light as they walked through the gate and the sensor light went on for about four or five seconds and I could see them clearer." The cross-examination turned to other aspects of Mr Farah's description before the following evidence was given about the gunman: Q. In your paragraph 24 you also say that the hood was covering the top half of his face? A. Yes. Q. So you were able to see the bottom half his face, it only covered the top half? A. You could see him, I can't really describe. Q. You can't describe? A. I can't describe. Q. Did you see a moustache or a beard, something that stood out? A. It was dark. Q. You have been able to describe him as having dark skin, and you were able to describe a fair bit of detail about this man. You said he was young, 25, so you got a fairly good look at his face when the sensor light was activated, is that right? A. Not very good look at his face, but the way he is, the way he acts, the way he walked in, walked out, you can give him more the age, 23-5 roughly. Q. In any case, at the time the light was on, if he had a moustache - A. If he had a moustache, you would see it. Q. The second man you said was bigger build and [fat] in the stomach? A. Yes. Q. Remember telling the police that, and you thought he looked about 25? A. (No verbal response) Q. And you thought he was about 165 centimetres, which is five foot four? A. Yes Q. Was he shorter than you? A. Yes. Q. He was shorter than you, so both men were shorter than you? A. Yes. Q. And I take it you didn't notice any facial hair on that man either? A. I didn't. Q. You didn't notice any beard or facial hair on that man? A. No. 62It was incorrect to submit that Mr Farah stated that neither man had facial hair. He offered an opinion that when the sensor light was on he would have been able to see a moustache on the gunman. But there are a number of problems involved in extrapolating this to an assertion that neither intruder had a moustache. The sensor light was at the gate; the men moved quickly through and away from the gate. Mr Farah said he was standing in about the middle of the dance floor. The gate was some distance away from him. The applicant's description of his own facial hair at the time, if the jury accepted he was being truthful, did not indicate that his moustache was particularly prominent and Mr Farah was not asked how prominent a moustache the gunman would have to have had in order for it to have been noticeable. He did not notice whether the companion had facial hair. Further, in his earlier evidence he said he could not even say what was the colour of either man's skin. 63Another example of the attempt to exclude the applicant relates to some other evidence given by Ms Bouzini. In the applicant's written submissions it was put that she claimed that "the shooter had a gap or scar in his eyebrow. Mr Hoblos had no discernible facial scars". 64Ms Bouzini said in her statement that one of the men had "a hole in one of his eyebrows". But she explained in her evidence: There was like a gap here, like a scar or, maybe it was a shadow, like, because it was dark, I'm not sure. But I just remember there was like, there was something there, maybe it was a scar and so the hair wasn't growing there. Maybe it was a shadow, I am not entirely sure. 65The evidence is so imprecise that it cannot assist the applicant. 66It was common ground at trial that this evidence of descriptions was incapable of establishing that the applicant was one of the two men who entered the house, either as the shooter or the shooter's companion. It was pointed out in the submissions of Mr Game SC that the Crown Prosecutor did submit to the jury in his closing address that certain witnesses provided descriptions of one or the other of the two men that indicated he might be the applicant. But it needs to be borne in mind that all the prosecutor was doing was pointing out that the applicant was "in the ballpark" of the description; not that the jury could be satisfied from the description itself that he was one or the other of the men. 67Having considered the totality of the evidence of the eyewitness descriptions I am not persuaded that the jury should have had a reasonable doubt that the applicant was either the gunman or his companion.

Intercepted telephone calls 68Before turning to the intercepted telephone calls it is necessary to mention some evidence given by Ms Eileen McGeachy. She met the applicant in early May 2009, shortly after the murder, and they started dating. She said that at about the end of that month they were at the Carnes Hill Market Place at Horningsea Park in south-western Sydney one evening. They were talking about the shooting at the party at Merrylands. She said, "he told me that he was involved with what happened that night and I asked how, and he just said 'I was involved'". It was a short conversation and nothing else was said except that on the way home in the car she asked him what he would say if the police were to speak with him. He replied that he would say he was fishing with his brother-in-laws. 69Some confusion arose about some evidence in Ms McGeachy's cross-examination. The transcript accords to her the answer: Well, he never said he was involved. If he was involved, I wouldn't know, so. 70It is unnecessary to dwell upon the debate about this. The transcript is obviously incorrect. The Crown Prosecutor's contention that the answer was in fact "he never said how he was involved" should be accepted. Counsel for the applicant's cross-examination that immediately followed that answer was consistent with the witness having said what the prosecutor contended. Otherwise, the cross-examination would be nonsensical if the answer had been as transcribed. 71The applicant's evidence was that he could not remember this conversation; he could have told her something about the deceased having been shot; he could not remember any detail of the conversation. He said that at the time he was speaking to Ms McGeachy he was worried about the fact that he had gone to the party and then the deceased had been shot; but he did not use the words, "I was involved". He did not deny that she had asked him what he would say to the police; he might have said that he would say he had been fishing; but he could not recall. 72The applicant went to gaol on 15 June 2009 in respect of a disqualified driving offence. He had access to a mobile phone in his cell. Police became aware of this and lawfully intercepted his communications from 22 July 2009. A number of conversations formed a crucial part of the Crown case. 73Detective Sergeant Sedgwick gave evidence that it was a perusal of the call-charge records for Mr El-Hage's phone, and those for other party guests, that led police to look into the potential involvement of the applicant because of the number and frequency of phone contact on the night. 74On 6 August 2009, police spoke to Mr El-Hage about them, and about the contact he had with the applicant on the day of the murder. Mr El-Hage rang the applicant at 10.37pm that night. He was obviously concerned to speak discreetly because after initial greetings he told the applicant: "don't say names, don't say mine, I'm not going to say yours". He referred to "how our best mate Hilal ... passed away" and said he had seen some paperwork "today" about how on that night the applicant had been calling Mr El-Hage. (I will later refer to the call-charge records showing such calls). Mr El-Hage proceeded to tell the applicant to "listen carefully"; that "you were coming to the party, you were coming 'cause you wanted to hang out with me ... and then when you came into the street, ... you saw, you asked ... what happened, ... you saw ... the lights in the street and that and you took off". He added, "cause after that you never, you never called me because, you know, you heard what happened". (The latter was relevant to explaining why there was frequent contact between the applicant's phone and Mr El-Hage's phone up until the time of the shooting and then nothing until the following evening.) 75Mr El-Hage told the applicant to "be ready because they're ... coming to talk to you". The applicant responded, "Yeah, all right no worries". Mr El-Hage then proceeded to give the applicant some information derived from the call-charge records including the times of calls and that they showed the applicant was in the Merrylands area at the relevant time. He said, "that's when you were coming into the street, remember?" He "reminded" the applicant, "I told you I wanted you to come down to ... the party ... and then I don't know, 'cause I think you said you had a bit of pot on you or something and you got paranoid, you wanted to leave". The applicant replied, "yeah, no worries". 76The applicant's explanation for this conversation was that he had just woken up in his cell, he was shaken up, and he was thinking, "what was he on about? What was going on?" 77I will later say something more about the applicant's account of attending the scene of the party and leaving quickly after the shooting but it was broadly in accordance with what Mr El-Hage had "reminded" him of in this conversation. It included that he left quickly after the shooting because, "I was unlicensed driver, disqualified, I didn't want to get questioned by the coppers and I had dope in the car". 78Immediately after the call from Mr El-Hage was terminated the applicant rang Ms McGeachy. The conversation (omitting irrelevant matters) included: Applicant: Listen, I'm in big, do you understand what trouble I'm in? McGeachy: (After having asked him to "hold on, wait") Now, what's the trouble for? Applicant: You know about the situation I talked to you about? McGeachy: What, what situation? Applicant: You know what. McGeachy: At Carne Hill? Applicant: About, we were, at the shops. McGeachy: At Carne Hill? Applicant: (Unintelligible) tell you something. ... Well, they're going to come question me McGeachy: Seriously? Applicant: I'm being dead serious. 79The applicant then spoke about Ms McGeachy doing him a favour. He mentioned going to court tomorrow, apparently in relation to an appeal against sentence for the driving matters. Presumably because she was hopeful he would be successful with his appeal, she inquired as to his need for her assistance, given that he might be released from custody: McGeachy: So what if you get out? So what's the point of doing it if you're going to get out? Applicant: I'm not getting out. McGeachy: Huh? Applicant: I'm not getting out. McGeachy: For how long? Applicant: I'm not getting out. I'm not getting out, okay. 80After some short reference to the favour, and to the applicant needing to call his family, he told Ms McGeachy: Applicant: I might never ever come out no more. McGeachy: What do you mean? Applicant: I might not come out til after a big whack. McGeachy: Oh, like you're going to be in there for like a while, like years? Applicant: I'm, I'm talking about life. 81The applicant's explanation was that the reason he rang Ms McGeachy was that he was shaken by the call from Mr El-Hage; he was scared, wondering why Mr El-Hage had called saying detectives wanted to come and see him. 82After terminating the call to Ms McGeachy, the applicant immediately rang a mobile phone number and spoke to his family. He instructed that the landline phones in the house should be taken "off the hook". He referred to the death of the deceased and spoke of detectives coming to speak with him. He warned them to be careful of what they said, amongst other things referring to the possibility of the phones being "tapped". In this context he said, "Just watch what you say, this is [like gaol] this is, this is, this is my whole life". (Square brackets in the transcripts indicated translation from Arabic). 83The applicant told the jury that he said the landline phones in the house should be taken off the hook because he "didn't want them to get involved or anything to happen to them". He said, "I didn't want like anybody questioning them or say anything to them". 84That conversation was immediately followed by a call to Suzie Dzevlan. He spoke of her visiting him at the gaol the following Saturday and said that Mr El-Hage would be accompanying her and that he needed to speak to Mr El-Hage urgently. He added: I'm, I'm in a, I'm in a, I've got a phone call now, I might be doing life. 85Ms Dzevlan asked, "why would you be doing life for, what's wrong with you?" He appears to have become annoyed with her and brought the conversation to an end. 86The applicant explained that he said he might be doing life because he was "shaken up with the phone call I had"; "I was scared, like, and she's a friend, she's a friend, like I thought, and I've been in trouble before, thinking, you know, this is my life." In cross-examination he explained that it was "Just a spare [sic - spur] of the moment, just things". 87That call was immediately followed by a call to Ms Amanda Viola. Ms Viola had been the applicant's girlfriend until they broke up in about September 2008 but they remained friends (T276). The applicant asked her to look after his family. He explained to the jury that he asked her this because he "was just worried about my family, stressing". He denied that he was fearful of reprisals against his family for his involvement in the murder of the deceased. 88He called Ms Viola again two days later on Saturday 8 August. After some irrelevant conversation he asked her for a favour: if the police were to question her she should say that he was with her and that she was dropping him off to the party; she suggested, and he agreed, that they had been in the city together that night, at Star City. 89The applicant said that he asked Ms Viola to look after his family because he did not want them to be worried or stressed and he "didn't want like no one thinking anything bad or coming next to my family". He had wanted her to say that she was driving and dropped him off at the party because he did not have a license and was a disqualified driver. 90Police searched the applicant's cell on 11 August 2009. That evening the applicant rang his sister. He told her that the detectives came and asked him questions that day. He cautioned her about surveillance of conversations. He asked her to go and speak with Ms McGeachy to discuss his alibi: "And if anything happens, say I was with her ... I was with her ... going to the party ... he called up his mate ... Hagi and he was drunk ... that's the alibi, I was with her and I'm engaged to her". 91The applicant rang Ms Viola on 31 August 2009. He counselled her not to co-operate if the police asked her questions. 92These intercepted phone conversations must have been taken by the jury to have been referring to the killing of the deceased at the party on 25 April 2009. They involved the applicant preparing what to say when questioned by the police and advising others what to say; preparing false stories so that he could establish an alibi. His fear of getting a "big whack" or "life" could well have been regarded by the jury as demonstrating his awareness of his culpability for murder. It would be unsurprising if the jury regarded the applicant's various alternative explanations as incredible.

Phone call records 93The call charge records obtained by the police and shown to Mr El-Hage on 6 August 2009 were in evidence. They showed the following series of contact from the applicant's phone to Mr El-Hage's phone. The relevant data has been extracted into the following table. Included is the time of the first call made to triple 0 from a landline inside the house. Also included is the interval between the end of the connection, or attempted connection. Most of the calls that were directed to Mr El-Hage's voicemail involved connections of only a few seconds. An exception to that is the last connection to voicemail which lasted 32 seconds. It was during that connection that the first triple 0 call was made. Time Connection Interval since end of previous 21.24.55 25s 21.26.16 1 min 19s 56s 22.41.50 1 min 52s 1h 14 min 15s 22.49.28 26s 5 min 46s 22.50.11 Voicemail 17s 22.50.39 Voicemail 23s 22.51.05 Voicemail 23s 22.51.28 Voicemail 21s 22.51.51 Voicemail 23s 22.52.17 Voicemail 23s 22.52.42 Voicemail 23s 22.53.06 Voicemail 22s 22.53.26 Voicemail 18s 22.53.51 Voicemail 23s 22.54.24 Voicemail 31s 22.57.39 Voicemail 3 min 12s 22.58.11 Voicemail 29s 22.59.37 No connection 26s 23.07.00 Voicemail 7 min 23s 23.10.06 Voicemail 3 min 4s 23.13.34 Voicemail 3 min 25s 23.14.19 No connection 43s 23.16.29 Voicemail 2 min 10s 23.17.15 Voicemail 43s 23.17.31 1st call to 000

94Detective Sergeant Sedgwick gave evidence that the calls that went through to Mr El-Hage's voicemail indicated that his phone was either turned off or the battery may have been flat (T223.35). He also gave evidence that after the calls, or attempted calls, set out above, the next contact by the applicant's phone with Mr El-Hage's phone was on the following day at 8.15pm when a series of text messages were sent (T223-4). 95The towers through which these calls were relayed were consistent with the applicant being on the way to, and then at, Merrylands. 96The Crown Prosecutor submitted to the jury that use of the applicant's phone in contacting Mr El-Hage's phone was "a very, very powerful piece of circumstantial evidence that [he] was involved in some way as one of the three men". This was said to be so, whether it was he or one of his companions actually using the phone. 97It was submitted by the prosecutor that the last call at 23.17.15 was made after the shooting. That was because in the triple 0 call made 16 seconds later, the caller told the operator that a man had been shot and that the gunman had gone. The last connection to Mr El-Hage's voicemail lasted 32 seconds, so it was occurring at the same time the triple 0 call was initiated. There was no evidence as to what was said in any message that might have been left. 98It was also submitted that it was possible that the shooting occurred in the interval between the second last and last connection to Mr El-Hage's voicemail but that did not rule out the possibility that the applicant was one of the two intruders if it was he who was making the calls. It was also submitted to be possible that another of the three men was using the applicant's phone. The prosecutor submitted that the jury did not need to conclude that the phone was exclusively in the applicant's possession; "in the long run, it doesn't matter". 99The applicant's evidence was that he obtained the address for the party from his friend "Moey" (Mohamad El-Hage) who had asked him that afternoon if he wanted to attend. He wrote it on a piece of paper that was subsequently found in Davies Street. He did not have a street directory or a GPS. He got lost and so that is why he had telephoned El-Hage to obtain directions. The arrangement was that when he arrived in Davies Street he was to ring El-Hage who would come outside and walk in with him. 100When he arrived there was no parking available in Davies Street so he parked in an adjoining street. He then made the calls from about 10.50pm to 11.17pm: I was calling him to tell him I was here, I've jumped out of the car, I've walked down to the corner, walked down to see if he was at the front and it's gone to his answering machine. 101He did not know the host and he was not going to just walk into the party. He kept trying, unsuccessfully, to contact Mr El-Hage. Then there were people yelling, screaming and running. People were saying that someone got shot. Then he heard sirens nearby. He decided "to hop in the car and take off". He explained that he left because he was a disqualified driver and had cannabis in the car. 102In cross-examination, the applicant said that the call at 11.17pm was not after he saw people come running and screaming out of the house (T324). Later he said that he did ring Mr El-Hage after the shooting, because he wanted to find out what was going on (T347). But then a short time later he said that he could not remember if he made a call after or before (T348). He confirmed in further examination-in-chief that he did hear the gunshots (T351). 103The Crown Prosecutor submitted that it was significant that there were no more attempts made from the applicant's phone to contact Mr El-Hage after the 32 second voicemail message was left at 11.17pm. It was submitted that "the lack of curiosity by the accused after 23:17:15 is so damning ... of this man's state of mind" (T379). On his account, he had been desperately trying to contact his friend but repeatedly put through to voicemail. He was outside the house when he heard gunshots and then witnessed the pandemonium with people running and screaming. He then left a 32 second message on his friend's voicemail and left, not making any further attempt to contact him until the following evening. 104Defence counsel addressed the Crown Prosecutor's submissions in some respects. She argued that the 46 seconds (in fact 43 seconds) between the second last and last calls to El-Hage was insufficient time for the applicant to have been one of the two intruders. 105Senior counsel for the applicant submitted in this Court that the telephone record evidence did not implicate him in the murder; at its highest it established that he was outside the house and trying to reach Mr El-Hage. But this was only one aspect of the Crown's circumstantial case. This body of evidence showed that the applicant went to the scene of the murder and was present at the time it occurred. The applicant's alternative explanation for his presence was, at best, dubious.

The piece of paper 106A piece of paper with the handwritten address of the location of the party (Exhibit B) was found on the grass verge of Davies Street about 25 metres from the next cross street (T178), near where the getaway car had been parked. There was no dispute that the applicant's fingerprints were on it and that the writing was his. 107The Crown Prosecutor argued that if the applicant was one of the two intruders he may have inadvertently dropped it near the getaway car or, if he was the driver, it may have blown out of the car when the passenger door was opened. But it was another piece of circumstantial evidence that linked the applicant to the crime scene. Counsel for the applicant argued that the paper was found some unspecified distance away from the car. He had explained his presence at the scene so the evidence did not link him to the crime.

Ground 1 - The verdict is unreasonable and cannot be supported by the evidence. 108The evidence of the phone contact between the applicant's phone and that of Mr El-Hage on the night of the murder did little to advance the Crown case in the light of the applicant's admission that he was present at the scene. The same can be said in relation to the piece of paper with his handwriting and fingerprints. The applicant's alternative explanation had little credibility. But the worth of these two aspects of the evidence was minimal in the light of the admission. 109The two telling pieces of evidence were, first, that of Ms McGeachy whereby the applicant told her that he was "involved in what happened that night", namely the night of the party at Merrylands. Her credibility came under attack but it was supported by the subsequent intercepted telephone conversations, the second body of telling evidence. 110The intercepted conversations clearly related to the killing of the deceased. The fact that the first conversation with Mr El-Hage involved recitation of a version that paralleled that given by way of exculpatory explanation in the applicant's evidence is demonstrative of that. The fact that Mr El-Hage felt the need to forewarn the applicant of the police knowledge of his presence at the vicinity of the murder itself is significant. If the truth was as the applicant had testified, there would have been no need. 111Ms McGeachy's evidence is supported particularly by two of the conversations. Immediately after he was warned in the first call from Mr El-Hage, he rang Ms McGeachy and referred to what he had told her at the Carnes Hill shops. It was in that context that he made the references to facing a "big whack" or "life", clearly an acknowledgment of his culpability for murder. 112Then when he spoke to his sister on 11 August 2009 and asked her to speak with Ms McGeachy, he said, "she knows a bit". 113Overall in relation to the intercepted conversations, while it may be that individual statements made by the applicant might only raise suspicion, as the trial judge correctly (with respect) observed in his sentencing remarks, it is the combination, including the timing and sequence, that manifested a consciousness of guilt of the applicant's participation in the murder. In my view it did so overwhelmingly. 114There were other issues raised at the trial, and again in this Court, which do not call for resolution. They concern matters such as whether the applicant had a motive to see the deceased killed; whether other persons had such a motive; and that the applicant mourned the death of the deceased. Arguments were raised by both parties in relation to such matters but they are not determinative. 115Similarly, the question of whether Mr El-Hage was involved in the plan to kill the deceased is a peripheral issue. In his closing address to the jury the Crown Prosecutor certainly suggested that he was involved and he referred to evidence that supported the proposition. But he also said that the jury need not spend time speculating about what Mr El-Hage knew before or at the time of the killing and invited the jury to focus upon the question of the applicant's involvement. 116I have no doubt that the applicant was "involved" in the murder of Hilal Merhi. I share the view of the trial judge in his sentencing remarks that his precise role was not established beyond reasonable doubt. Assuming he did not have a technical legal knowledge of the nuances of joint criminal enterprises, it maybe thought that his fear of potentially spending the rest of his life in gaol arose from the fact that he was the shooter, or at least the second intruder. But whether he was shooter, second intruder or driver, I, like the jury, am satisfied beyond reasonable doubt of his guilt. 117It was accepted on behalf of the applicant that the jury must have rejected his version of events. The written submissions for the Crown assert that "the falsity of the applicant's evidence fairly shouts from the printed page" and that "the jury's refusal to accept him as a witness of truth cannot be wondered at". Nevertheless, I have given consideration to the applicant's version but it does not give rise to any reasonable doubt about his guilt. Having listened to the recordings of the intercepted telephone conversations I have come to the view that his explanations for them are particularly susceptible to the colourful characterisation of the Crown. 118No question was raised about the shooter and the second intruder being guilty of murder. But in this Court it was contended on behalf of the applicant that there was insufficient evidence to establish that the driver was also guilty. It was submitted that "the most that could be said is that he was a party to some activity of a brief and potentially nefarious type at the premises where the party was being held". The problem for the applicant is that he conceded this at his trial. And there was ample evidence to justify such a concession. 119The driver delivered the two intruders to the vicinity of the party. He kept the engine running as they quickly made their way into the premises. He must have been aware that his companions would not be long and that they would be able to make a quick exit unimpeded by party guests. The two intruders proceeded directly to the deceased who was immediately and brazenly shot and killed in front of many witnesses. Clearly, this was the men's one and only objective and was something that was done pursuant to a carefully formulated plan. They then hastily made their way back to the car which was driven away at speed. It is, with respect, fanciful to suggest that the driver might have had no idea of the true purpose of his passengers.

Ground 2 - The directions given on the question of liability for murder were erroneous 120The trial judge gave to the jury unremarkable directions about the elements of the offence of murder and the bases of liability of the shooter, the second intruder and the driver. No exception was taken to those directions or to his Honour's observation that: [N]o one has actually suggested that the shooter, the person that went in, and the driver, would not be guilty [of] the murder. ... You may think therefore that the real issue in contest in this case is not that the shooter was guilty of murder, or that the second intruder was guilty of murder, or that the driver was guilty of murder, but rather, whether or not the Crown has proved that this accused was complicit in the murder, in the sense of being one of those three people. 121It was submitted, however, that his Honour erred in leaving the case on the basis that the driver was a party to a joint criminal enterprise. This was founded on the proposition that there was no evidentiary basis for a conclusion that the driver had the requisite knowledge or state of mind that the deceased would be killed. For the reasons given above (at [119]), I do not accept that proposition. I would refuse leave to raise this ground pursuant to r 4 of the Criminal Appeal Rules.

Orders 122I propose the following orders:

Leave to appeal against conviction granted.
Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2014

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