Khoury v R

Court of Criminal Appeal (NSW)|2020-05-27|Before: Bathurst CJ, Hoeben CJ, Beech-Jones J, Johnson J

[This headnote is not to be read as part of the judgment] John Khoury (the applicant) was convicted of a number of offences relating to home invasions carried out in 2010, on the basis of the principles of joint criminal enterprise or extended joint criminal enterprise. While he did not personally carry out the offences, the Crown case was that he was involved with recruiting and arming the other offenders and selecting or approving the target premises. The applicant sought leave to appeal against his conviction on two of the counts, which related to the murder of Kesley Burgess (the deceased) during a home invasion. The applicant was a drug dealer in south western Sydney, who was assisted by Mohammed Karimi. A gang operated from a shop leased by the applicant (the shop). The applicant had recruited Anaterea Tamapua and some of his associates to shut down the activities of competing drug dealers. Two home invasions were carried out on 1 July 2010. The first "job", planned by Tamapua, was intended to be at the home in Warwick Farm of a man known as "Beanie Boy" but was inadvertently carried out at the wrong house. The second "job" was carried out at the home of the deceased in Lurnea. The deceased's brother Jacob was known by Karimi to be a drug dealer, and Karimi's cousin knew the location of the house. Prior to the jobs being carried out, members of the gang gathered at the shop, and then at the Chester Hill Hotel. They later returned to the shop, where the applicant and others were. It was the Crown case that the two home invasions were discussed and approved by the applicant at the shop. A group left from the shop to Warwick Farm, where the first home invasion was carried out. The group then drove to Merrylands, where they met up with Karimi's cousin who guided them to the location of the second home invasion in Lurnea. The deceased was hacked to death with meat cleavers in front of his mother and girlfriend. The Crown argued that the relevant agreement by the applicant for the purpose of extended joint criminal enterprise was an agreement to do the second job at Lurnea with the foresight of the deliberate infliction of grievous bodily harm. The applicant appealed his conviction for the murder of the deceased on the ground that the verdict was unreasonable, and that there was insufficient evidence to establish his participation in the agreement. The Court of Criminal Appeal held that the verdict was not unreasonable and dismissed the appeal. Unreasonable verdict i) The jury must have been positively satisfied beyond reasonable doubt that the applicant participated in an agreement in the shop to conduct the home invasion of the Burgess premises with the foresight of the deliberate infliction of grievous bodily harm: [600] (Bathurst CJ); [629] (Hoeben CJ at CL); [630] (Beech-Jones J). Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26, referred to. ii) Many of the key witnesses had major issues of credibility and reliability. Taken in isolation, their evidence was not capable of satisfying the jury beyond reasonable doubt that the applicant participated in the agreement: [601]-[613] (Bathurst CJ); [629] (Hoeben CJ at CL). iii) However, taking into account other matters, including Tamapua's lack of connection with Jacob Burgess, evidence of phone calls and their timing, the role of the applicant in the other offences he was found guilty of, the applicant's relationship with Karimi, and other evidence of his involvement, there is powerful support for the conclusion that the applicant participated in the agreement. It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charges: [614]-[627] (Bathurst CJ); [629] (Hoeben CJ at CL); [651]-[656] (Beech-Jones J).

Judgment

BATHURST CJ: The applicant John Khoury (the applicant), Mohammed Jawad Karimi (Karimi) and Mahdi Mir (Mir) stood trial for a number of offences which took place between 29 June 2010 and 4 July 2010. The discrete offences charged so far as relevant were as follows: "Count 1: On 29 June 2020 [Khoury and Karimi] at Villawood in the State of New South Wales did conspire amongst themselves and others to rob Ernesto Bertolli whilst armed with a dangerous weapon, namely a shortened firearm. Count 2: On 29 June 2010 [Khoury and Karimi] at Ashcroft in the State of New South Wales did break and enter a dwelling house owned by the Department of Housing … and did commit a serious indictable offence therein, namely larceny of a laptop computer and a plastic container in circumstances of special aggravation, namely at the time of the offence did wound James Stiff. Count 4: On 1 July 2010 [Khoury] at Chester Hill in the State of New South Wales recruited Tomasi Natuba to carry out a criminal activity, namely robbery whilst armed with [an] offensive weapon. Count 5: On 1 July 2010 [Khoury, Karimi and Mir] at Warwick Farm in the State of New South Wales, being armed with an offensive weapon, namely a meat cleaver, did rob Maxine Rogers of a mobile phone and a laptop computer, the property of Maxine Rogers. Count 6: On or about 1 July 2010 [Khoury, Karimi and Mir] at Lurnea in the State of New South Wales did murder Kesley Burgess. Count 7: [Alternatively,] [o]n or about 3 July 2010 [Khoury] at Sydney in the State of New South Wales knowing the persons to have committed the offence of the murder of Kesley Burgess did receive, harbour, maintain and assist those persons known to him. Count 8: On 1 July 2010 [Khoury, Karimi and Mir] at Lurnea in the State of New South Wales, being armed with an offensive weapon, namely a meat cleaver, did rob Tracey Burgess of a handbag, the property of Tracey Burgess. Count 9: On or about 3 July 2010 [Khoury and Karimi] at Sydney in the State of New South Wales did conspire amongst themselves and other persons to murder an unknown person. Count 12: Between 29 June 2010 and 4 July 2010 at Villawood in the State of New South Wales did possess a prohibited firearm namely a shortened .22 calibre long rifle without being authorised to do so by a license or permit."
The jury found each accused guilty of all the counts set out above except for count 7. That count was in the alternative to count 6 and a verdict was not taken.
The applicant has sought leave to appeal out of time in respect of his conviction in respect of counts 6 and 8 on the sole ground that the verdict was unreasonable

The Crown case in broad outline

In his judgment under the heading "Crown Case", Beech-Jones J has provided an overall summary of the criminal activities of the applicant which took place between 29 June 2010 and 4 July 2010. I gratefully adopt that summary, which should be read in conjunction with what I have written below.
The applicant in his written submissions helpfully supplied a dramatis personae and an outline of locations which were relevant to the incidents the subject of each charge. I have annexed this as Annexure A to this judgment. In addition, the Crown in its written submissions set out a timeline of the events which occurred on the evening of 1 July when the incidents the subject of count 6 occurred. I have set out the timeline as Annexure B. As will be seen from the dramatis personae, a number of the persons involved had various aliases or nicknames. These aliases or nicknames were used throughout the evidence. In summarising the evidence, I have used the witnesses' adoption of the nicknames but to the extent necessary have indicated in parenthesis the actual name of the person referred to.
The Crown case was that the applicant was a local Liverpool drug dealer who aspired to shut down rival drug dealers through intimidation and violence. He enlisted Anaterea Tamapua (Tamapua) and others to assist him in that task. He also had a prior association with Karimi with whom he was engaged in drug dealing.
The applicant and his girlfriend Aimee Walsh (Walsh) resided in a bedsit at Villawood (which was referred to as "the compound"). A Ray Tuki (Tuki) lived in an adjoining flat and was friendly with the applicant. He participated in some of the offences.
The applicant had leased a shop in Chester Hill (the shop) which was intended to be used to sell a variety of goods, including meat cleavers. A criminal group established by the applicant, the United Brothers or United Brotherhood, operated from the shop.
It was not suggested that the applicant physically participated in the home invasions. The Crown case was that he was guilty of each offence by reason of the application of the principles of joint criminal enterprise or extended joint criminal enterprise. The Crown case was that the applicant had directly or indirectly recruited the gang members, provided prospective members with meat cleavers and other weapons and selected or approved the target premises. The Crown case was that actual participants in the home invasions were selected to demonstrate they were capable of carrying out similar offences in the future.
The issue raised by the ground of appeal can be stated shortly. The applicant asserts that the jury could not be satisfied beyond reasonable doubt that he was a party to any agreement to conduct a home invasion at the residence of Kesley Burgess and Tracey Burgess such that he could be guilty of the offences the subject of counts 6 and 8 by the application of the principles of joint criminal enterprise or extended joint criminal enterprise.

The course of the trial

The trial involved a considerable number of offences other than those the subject of counts 6 and 8. Nonetheless, evidence of the manner in which these offences were planned and to some extent executed is relevant in determining the question in issue in the present case. In this section I will deal with the oral evidence given at the trial. To the extent necessary, reference will be made to exhibits when considering the parties' submissions.

a Ernesto Bertolli

Mr Bertolli was the intended victim of the conspiracy the subject of count 1. It is unnecessary to deal with his evidence in any detail. However, he indicated that he met a person named John (who it was agreed was the applicant) in about 2005. He said that at the time he had about five firearms: a Smith & Wesson.357 revolver, a Desert Eagle, a Beretta 9 millimetre, a Keppeler rifle and a shotgun. He said he showed them to the applicant one evening.

b James Kaerin Stiff

Mr Stiff was the victim of the offence the subject of count 2 of the indictment. He gave evidence of the home invasion, that he was assaulted with a machete and that a person at the invasion had a shotgun.

c Maxine Rogers

Ms Rogers was the victim of the offence the subject of count 5. She stated that she lived at Warwick Farm with her two daughters, aged 11 and 12, and her son. She said that on 1 July 2010 she heard a knock on the door, and that after opening it "these male guys" pushed the door open and asked if there were drugs in the house. She said that one of the males had a knife like a machete knife. She said that person had a knife to her throat and was asking her if there were drugs. She estimated that there were about six men, stating that they went through the house and then again asked about drugs. She said they stole her son's laptop and her mobile phone.

d Manuel Puga

Mr Puga sold the business carried on at the shop to the applicant. He stated that he recalled receiving a message from the applicant asking whether he wanted to get customers for the drug ice, but said he refused and that was it.

e Senior Constable Carl Spiteri

Senior Constable Spiteri, a crime scene officer, attended the shop on 5 July. He took sketches and photographs. He said that at the bottom eastern exterior corner of the eastern roller shutter of the shop, he saw a number of apparent blood stains. He also located a red/brown apparent blood stain on the floor towards the western wall, just south of the counter, and a similar stain between the western wall and the counter. He also noticed a reddish stain halfway up the handle of a purple handled mop.
Senior Constable Spiteri also located two right-handed woven gloves. He stated that he conducted a presumptive test for the presence of blood upon a stain on one of the gloves, which returned a positive result. He said the second glove which he identified had apparent blood staining to the palm area, and he again conducted a presumptive test on that stain which also returned a positive result. He gave evidence of the items he collected and the various swabs which he took. It is unnecessary, having regard to the issues in the case, to deal with this in any detail.

f Detective Senior Constable Kiera Piggott

Detective Senior Constable Piggott gave evidence about a statement she took at Bankstown Hospital on 2 July 2010 from Mr Tomasi Natuba (Natuba). It was common ground that Natuba gave a false statement that he had been attacked at a railway station.

g Senior Constable Joyce

Senior Constable Joyce gave evidence of the execution of a search warrant at a warehouse at Ingleburn occupied by the applicant. A blue bag containing three meat cleavers was seized.

h Mitchell Kearns

Mr Kearns stated that he knew Jacob Burgess from school. He said that he met Jacob's older brother Kesley Burgess through Jacob. He said he lived in the next street over from the Burgess family.
Mr Kearns said that in 2008 he became aware that Jacob Burgess was selling marijuana. He said that from around 2009 he purchased some from him.
He said he also came to know Wahid Karimi at school and became good friends with him. Wahid Karimi was Karimi's cousin. He said he had a mobile phone number for Wahid Karimi and that he gave it to the police at the time he made his statement.
Mr Kearns said that on one occasion whilst he was with Wahid Karimi, he indicated the Burgess house and told him, "This is where I get my pot from". He said that occurred before he became aware of the death of Kesley Burgess.
Mr Kearns said that he knew that Wahid Karimi had an older sister who had a white Toyota Echo motor vehicle. He thought that Wahid Karimi's sister's name was Sadequa. He said he had been in that car with Wahid Karimi when he was driving. He said that also occurred before the death of Kesley Burgess, saying it could have been at least a month before.
Mr Kearns said he had never met any cousins of Wahid Karimi.

i Detective Senior Constable Sharon Smithers

Detective Senior Constable Smithers stated that she was involved in a number of aspects of the investigation the subject of the charges. She stated that she interviewed a person named Mr Andrew Rhodes-Lightfoot. She said that Rhodes-Lightfoot lived in Warwick Farm, next door to Ms Rogers, the victim of the home invasion the subject of count 5. She agreed that his nickname was "Beanie Boy". She said he declined to make a statement.
There was tendered through Detective Senior Constable Smithers selected images of CCTV footage of the Chester Hill Hotel taken on 1 July 2010, and CCTV footage of vehicle movement from just outside that pub. (Exhibits AM, AN, AO). Exhibit AM was footage taken within the pub, excluding the pool room area. Detective Senior Constable Smithers identified Karimi and Tamapua in that footage. She also identified Eliza Brown, Thomas ("Sonny") Byquar, Mir and Shane Kraak (Kraak). It was not in dispute that Eliza Brown was Mir's girlfriend, that Kraak lived with Tamapua in Claymore and that Thomas Byquar participated in the killing of Kesley Burgess.
Detective Senior Constable Smithers also identified Tomasi Natuba (aka "Doonside"), Ray Tuki and Richard Vergara (aka "Ricky" and "Choppy Chan"). Natuba participated in the killing of Kesley Burgess. He was struck by Burgess with a sword and went to hospital. Tuki was a neighbour of the applicant, and Vergara participated in the home invasion of Mr Stiff's home the subject of count 2, during which he struck Mr Stiff with a meat cleaver.
Detective Senior Constable Smithers was then referred to images of the pool room which were Exhibit AN. She identified Natuba, Tamapua, Vergara, Byquar, Kraak, Karimi, Mir and Tuki in those images.
Detective Senior Constable Smithers gave evidence that during the course of the investigation police seized a maroon Toyota Tarago said to be associated with Ramos. Ramos (aka "Dosh") drove the gang to various home invasions in his father's Tarago.
She also stated that the police seized a Toyota Echo registered in the name of Sadequa Karimi. She was shown CCTV footage of vehicle movements outside the Chester Hill Hotel (Exhibit AO) which recorded the Tarago driving past the Chester Hill Hotel towards the applicant's shop at 10.17 pm, and a Tarago and an Echo at 12.04 am on 2 July 2010 travelling past the Chester Hill Hotel also in the direction of the applicant's shop.
Detective Senior Constable Smithers also gave evidence that she had obtained a phone associated with Rhodes-Lightfoot on which Rhodes-Lightfoot had recorded some audio. She stated that there were two audio clips. She recognised one of the voices on the first clip as that of Rhodes-Lightfoot but was not able to recognise the voice of the other person. In the next call she recognised the voices of Rhodes-Lightfoot and Tamapua. She said that the date for that recording was 1 July 2010 at 13:32:50 hours in Greenwich Mean Time which was about 11.32 pm in Australian Eastern Standard Time.
In cross-examination, Detective Senior Constable Smithers stated that Rhodes-Lightfoot had complained to the police in February 2010, concerning an investigation into an allegation that his apartment had been invaded by Tamapua and other persons. She agreed that he also mentioned to her that Tamapua had attempted to invade his house on the evening of the Burgess killing. She agreed that the thrust of the allegation that Rhodes-Lightfoot made to Tamapua in the phone call of 11.32 pm on 1 July was that Tamapua had attempted to invade his house on that day.
Senior Constable Smithers also gave evidence that one of the three meat cleavers seized from the warehouse at Ingleburn contained DNA consistent with that of Kesley Burgess.

j John Joshua Bautista

Bautista gave evidence that he was charged with conspiracy to rob Ernesto Bertolli whilst armed with a dangerous weapon, and with break and enter and stealing a laptop and plastic container in circumstances of special aggravation, being the infliction of grievous bodily harm on Mr Stiff. He pleaded guilty to the latter offence, and the Bertolli offence was placed on a Form 1.
These offences were the same offences as those on count 1 and count 2 against the applicant and his co-accused.
Bautista's sentence was discounted by ten per cent for past assistance and 15 per cent for future assistance, together with a further 25 percent for a guilty plea.
Bautista said that he was introduced to Tamapua by his friend "Edgy". He said this occurred on 29 June 2010, the same day as the commission of the offences the subject of counts 1 and 2. He said that he met Tamapua at Parramatta Station and that Tamapua said to him, "Oh, if you're up to making money, you know, come with us and we'll do houses over". Later that night he went to Villawood and was introduced to the applicant, who told them, "Oh, you know, if you want up to get these guns for us, we'll pay you that amount for the guns". He said that subsequently they went to a house at Lakemba and that "then they told us, 'Just go in there, get the guns and then we'll give you a price for it'". He said they went to the house but did not end up doing it. He said they went back to the car and that "[Tamapua] and Karimi was pissed off because we didn't do the job". He said they returned to Villawood and that they said "Oh, youse have to make it up for us by going to the Ashcroft job to Mr Stiff's house. If youse do this, it's like an initiation kind of thing".
Bautista said that after he first met Tamapua he travelled to Villawood by train. He said he was accompanied by Tamapua, Vergara, MA and CB (CJ) (MA and CB were juveniles at the time whose names were anonymised. CB's nickname was CJ, and for convenience he is referred to throughout this judgment as CJ).
Bautista said that he went to a place at Villawood where he met the applicant for the first time. He said Karimi was also there, and also the person who was dating the applicant. He said that was the first time he had met the applicant.
Bautista said he was introduced to the applicant as "Bishop". He said he was introduced to Karimi as "Trigger". He stated that this was the first time he had met Karimi. He said he was introduced to the applicant and Karimi by Tamapua.
Bautista said he recalled that at that meeting there was discussion about obtaining "a Desert Eagle, a gun, and that's all I can remember". He said it was the applicant who was talking about that.
Bautista said he travelled to Lakemba in the maroon Tarago, which was driven by Ramos. He said that at the time of getting into the car he saw a little rifle, a machete and a pole. He said that Karimi was holding the rifle in a black bag. He said that Vergara took the machete in the car. He said that the people in the car were Tamapua, Karimi, Ramos, MA, Vergara and CJ.
Bautista said that the applicant and his girlfriend drove the car in front of the Tarago and pointed out the house at Lakemba where the robbery was to take place. He said that the Tarago parked a few houses away from the house and Tamapua told them, "Just go in the house, get the firearms and then we will go back to Villawood". He said that he, Vergara, MA and CJ went to the house and tried to get in, but no one was home, so they ended up not doing it. He said that Karimi handed the rifle to Vergara to use as they were going to "do the house". He said he knew the gun was loaded. He said that CJ had the machete.
Bautista said that when they returned to the Tarago, "Tamapua was pissed off, so was Karimi, because we didn't pull off the job and saying 'Bishop was going to get pissed off because we didn't do it'." He said he recalled Tamapua saying, "Why didn't youse do it?" and "If no one's home why didn't you break the door down to go in".
He said that after that they returned to Villawood. He said he remembered the applicant being "pissed off" because they didn't do the job. He said that the applicant and Tamapua were saying that there was another house for them to do, to get the drugs and money. He said that they went to a house in Greenacre or Ashcroft. He said the same persons attended the Ashcroft house. He said that when they arrived, Tamapua pointed out the house and he (Bautista), CJ, MA and Vergara went to the front door and barged their way in to get the drugs, and Vergara swung the machete and hit Mr Stiff on the arm inside the house. He said that after the incident the group returned to Villawood. He said, "We just gave [the applicant] the weed and the laptop and he was saying 'We can sell this off'".
Bautista said he recalled Mr Tamapua saying when they were travelling to Villawood, "If youse wanted to be in the group youse have to do this and youse will get in the group".
It was suggested in cross-examination by counsel for the applicant that in fact the person he perceived to be the leader of the group was Tamapua. He denied that, saying it was the applicant.
He said he also heard the applicant give instructions as to the house where the guns were. He then corrected that, saying that the applicant told Tamapua, and then Tamapua said which house it was.
He subsequently agreed that it was Ramos who told him about the second house.
It was suggested to Bautista that he had lied an enormous number of times to the police and he agreed. He said he did not know whether he had reached a point where he was confused as to what the truth was and what the lies were.
Bautista was asked about his evidence that when he got to Villawood the people there were Karimi, the applicant, some blonde girl, Tamapua and him, and that the other boys came later on. He said that wasn't the truth. He said his evidence that the other boys all arrived together was not the truth, and that it was also a lie that Vergara turned up coincidentally.
He subsequently agreed that he had travelled from Cabramatta with Dosh (Ramos), Vergara, CJ and MA.
He subsequently agreed in cross-examination that when he spoke to the police he was just making up a story, and that that was also what he was doing throughout his evidence in Court.
In cross-examination by counsel for Karimi, Bautista agreed that he had no recollection of hearing the words "Desert Eagle". He said he referred to it in his evidence because it was the first thing that popped into his head and that it was untrue.
He subsequently stated that his evidence about the initiation was untrue. He said that it just popped into his head. He agreed that he mentioned it because the police were suggesting there was some sort of organised group, and he thought that if he talked about initiation it would make it sound more likely.
In re-examination, Bautista affirmed that he had been at Villawood during the night of 29 June.
He also stated it was true that in respect of the second job where Mr Stiff was injured, he went into the house and was looking for drugs and money.
He was again asked who travelled from Cabramatta to Villawood, and he agreed that it was Tamapua, CJ and MA. He then added Vergara.
He said he did not know as at 29 June 2010 that the person he was introduced to as Bishop was John Khoury. He also affirmed his evidence which he gave in chief concerning the identity of the persons who travelled in the Tarago with him to Lakemba and Ashcroft.

k Eliza Brown

Brown said that as at 1 July 2010, she had known Mir and Karimi for a few months. She knew Mir as "Mack" and Karimi as "Scheck". She agreed that on the evening of 1 July 2010 she was at the Chester Hill Hotel with Mack and Scheck.
Brown stated that she recalled that during the car trip to Chester Hill, Mack and Scheck were discussing that Scheck was "part of, like, a gang" and that Mack was going to join them. She said that Mack and Scheck told her that the reason they were going to Chester Hill was to meet other people who were part of the gang. She said to Mack that it was not a good idea, because everything you hear about gangs is never good.
Brown said that after they got to Chester Hill, they had dinner and then went to the shop. She said that at the beginning she waited outside and then Mack told her she could come inside. She said that when she went in three other people were there, but she could not remember their names. She described one of them as a big guy wearing glasses, another as a girl about her age who was engaged to him, and another as a shorter Islander guy.
She stated that a few more boys arrived at the shop later. She described them as "just lots of different guys and some Islanders", saying there were about six or so people.
Brown said that in the back room there was a box with meat cleavers in it.
She said that at the time there were conversations occurring at the shop, the big guy was not the focus of the conversation, but he was the main person that everyone would go to.
She said they then went to the Chester Hill Hotel. When she was there, Scheck pulled her aside and told her that she should never tell anyone what she had seen or heard, because she wouldn't know what they would do to her if she did tell. She said that at the time she did not know anything that was going on.
Brown said that when she left the pub, Mack and Scheck walked her to her car. Mack said he was going to stay with the boys so he could prove worthy to them. She said Scheck also stayed.
Later that night, near midnight or the early hours of the morning, she recalled Mack calling her and asking her to pick him up. She said she picked him up "across the road from the phone shop and the Chester Hill pub". She said the phone shop was the same shop she had talked about earlier. She said that Mack was on his own when she picked him up and was covered in blood. She said she asked him what happened, and he said he did not want to tell her because he did not want to get her involved. However, she said he subsequently told her that he went with a group of people to stop a guy from dealing weed, and they got into a fight "and the guy got cut and some other guy got his shoulder, like, sliced off".
She identified herself, Mack and Scheck in the CCTV footage from the Chester Hill Hotel.
Brown was asked further questions concerning the conversation she had with Mack when she picked him up. She stated that Mack told her they went to the house to stop someone from dealing. She said she asked why it mattered, and he replied that the person wasn't dealing for the person who runs the area.
In cross-examination she said that she understood that the "big guy" to whom she had referred owned the shop. She said he was at the shop the whole time she was there and that he and the 18-year-old girl stayed at the shop after the others left to go to the pub.
Brown was referred to phone calls which took place between the applicant and Walsh during the time she said they were together at the shop. She agreed it was peculiar that they made phone calls to each other whilst they were at the shop. She agreed by reference to the phone records that they showed that Walsh may not have been at Chester Hill.
Brown rejected the suggestion that she did not go to the shop but rather went straight to the pub after eating at a pizza shop.
Brown was referred to her interview with police where she said she did not recall where she was on 1 July. She was referred to the fact that at the interview she was shown a photograph of the shop and was asked, "Have you ever been to this store?" She agreed that she responded, "Maybe, I don't remember. I go to so many places". She said she was sure she had been to the shop, but just did not tell the police the truth at the time, because she was told not to tell them anything about what happened that night, and was scared of what would happen to her if she did tell them. She again affirmed that she went to the shop.
She was referred to the telephone records (Exhibit AK) which showed phone contact at 11.06 pm between her phone and Mir. It was put to her that whoever she was speaking to was not Mir. She stated that was the call from Mir asking her to pick him up. It was suggested to her that the call was not after midnight and she said she could have got the times mixed up. She denied she was making it up.
It was also put to her that the phone records showed that the call came from her phone to Mir's phone. She continued to deny that she made it up.
She was referred to a call from Vergara's phone to her phone which took place at 25 minutes and nine seconds past midnight. She said she had no idea why she had received the phone call. She said she did not know someone by the name of Richard Vergara. She said she could have spoken to Mir during that conversation. She said she had no explanation for the series of calls which took place.
She was also referred to a call she received from Karimi. She was asked whether she had any recollection of a conversation she had with him, and said she was pretty sure that she was talking to Mack then as well.
She agreed she never told the police about this series of phone calls.
It was put to her that she never had any conversation with Mir, and she denied it.
She stated again in cross-examination that she lied when she said she had not been to the shop, saying she was scared because of what Scheck had told her. She stated that she lied to the police when she denied that she assisted Mack.
She also agreed it was a lie when she told the police that after she picked Mack up at Chester Hill, she did not notice any blood on him.
It was next suggested to her that she may well have received a call prompting her to travel back to Chester Hill but that it was not a call from Mir. She rejected this suggestion.
She agreed that she first told the police about going to the shop shortly before the commencement of the trial, in a statement which was effectively her third statement.
In answer to cross-examination by counsel for Mir, it was suggested to her that there was no conversation with Scheck and Mack about Mack going to join a gang.
It was suggested to her that she told "three big important lies" to the police. She agreed that she lied about not being in the store, about not knowing anything about Mack's involvement in a murder, and about Mack not having spoken to her about anything relating to the potential murder of Mr Burgess. She agreed that she told those lies in both her first and second interview.
She further reaffirmed that Scheck threatened her.
In cross-examination by counsel for the applicant, Brown affirmed that she heard "nothing untoward" at the shop or at the pub but said that she interpreted what Scheck said to her as a threat. She agreed that she interpreted it as a pointless threat because she did not have the faintest idea what he was talking about.
She was referred to three telephone calls made from her phone to Deldar Kazemi at around 1.31 am on 2 July. She said she had no idea who Deldar Kazemi was and did not phone them. She said she was pretty sure it was Mack who made the call.

l Tomasi Natuba

Natuba pleaded guilty to the charges of robbery with an offensive weapon against Maxine Rogers and the murder of Kesley Burgess. He also admitted his guilt to the armed robbery of Tracey Burgess and asked for that to be taken into account on his sentence for the murder. He received a total discount of 50 per cent on his sentence, being 25 per cent for the pleas of guilty, 10 per cent for past assistance and 15 per cent for future assistance.
Natuba said that Byquar was his cousin. He said that as the result of telephone calls and text messages between them he travelled to Chester Hill on 1 July 2010. He said he first had contact with Byquar on that day at a pub at Doonside.
Natuba agreed that in the early hours of 2 July he was at Bankstown Hospital and that the police took his phone. He was shown a document entitled "Stored communications of Thomas Byquar", which related to 1 July 2010 and referred to two different phone numbers. He agreed that one of the numbers was the phone number that he had at the time police took possession of the phone, and that he understood the other number related to Byquar.
Natuba said he met Byquar at Chester Hill station. Byquar was with an "Aussie bloke" whose name he could not recall. He said that he, Byquar and the Aussie bloke went to the pub and "met up with other boys". He said there were about five in addition to him, Byquar and the Aussie bloke. He did not know any of them at the time but remembered being introduced to Tera and Ray. He said Tera (Tamapua) was Samoan and Ray (Tuki) was a Kiwi.
Natuba said he went to the pool room and played pool with his cousin. He said that "a couple more boys turned up" and that they went to a shop up the road, where they had a discussion about "doing our jobs and that for the night". He said he did not know any of the additional people who came to the pub but got introduced to "Scheck". He stated that was the only name he remembered.
Natuba said that when he went to the shop with the other boys there was a man and a woman there. He said he got introduced to the man whose name was Bishop. He described him as having glasses, a beard and that he was a "big bloke", probably in his late twenties.
Natuba was asked what happened at the shop. He said, "Everyone was in there, the shop, the doors were closed, there were, yeah, discussions about doing jobs at night". He said he remembered the boys talking about how to get into the group you had to prove yourself, and that they were saying, "Oh, you know, youse are going to have do jobs, like, you know, just robberies and that." He then said it was decided who was going to do the jobs. He said it was decided that he, his cousin and another guy were going to do the robberies that night to prove themselves. He said four knives were pulled out and shown to them as the weapons they were going to use.
He said it was Tera and Scheck who were telling them who were going to do the jobs. He said he could not remember the two people who were at the shop when he arrived there (namely, the applicant and Walsh) taking part in the discussions. He said, however, that "The bloke that was in the shop before, Bishop, he got out the knives for us". He said he did not know where Bishop got them from, but said he showed them the knives and that they knew what they were going to do with them.
He said he then went outside and got into a Tarago. He said the other people in the Tarago were Tera, Scheck, Byquar, Mir, one driver, and one other guy who was already in the car. He said they went to do the first job that night, which was at Warwick Farm.
He said that he, Mir, Byquar and the other bloke he did not know then got out of the car and knocked on the door. He said Byquar went in first and that they all went in after that. He said that one of the boys went straight upstairs, two of them went to the kitchen and that he stayed in the house. He said that everyone had weapons. Natuba said there was a mother and her two daughters there, and that he was keeping an eye on them while the boys were going through the house. He said he was asking the mother, "Where's the drugs? Where's the money?" He said he recalled her replying that it was the next-door neighbour that they were after, and that they had gone to the wrong house. He said they stole a laptop and a phone.
He then said they went to try next door, but that it was "too late because they'd heard all the screaming", so they "got out of there and back to the Tarago". He said that they told Tera it was the wrong house, and that he rang the guy they were supposed to rob and that they were arguing on the phone.
He said that after he got into the Tarago he fell asleep, and the next thing he remembered was that they were in Merrylands, parked along the side of a road, and that Scheck had gotten out of the car and into another car. He said it was a white car, but he did not know what type it was. He said, "They got another car and we were following them and there was a service station across the road and we went in there and they filled it up with petrol". He said he was still in the Tarago. He said both cars went into the service station but that it was only the Tarago that filled up with petrol. He said that Scheck and a person he described as the owner of the car were in the other car. He said that person had not been in the Tarago previously.
Natuba then said that the Tarago followed the white car to Lurnea, and that Scheck came out of the front car and pointed out the house. He said that Scheck was saying, "Go in, grab drugs, money, and the guy could have a shotgun so get that too".
Natuba said that the same four persons who performed the first armed robbery of Maxine Rogers went into the house. He said that Byquar knocked on the door and went in first, and then he went in, and then the other two boys. He said that each of them had the same weapons as they had for the first robbery. He described the robbery in the following terms: "Well Byquar went in first and I went in second and I went in and I turned right and I went up the hallway because I was going to go straight for the gun and I'm coming up the hallway and there was Tracey Burgess there in front of me in the hallway. I was going up and saw a door open at the end and just see someone come out with a machete, or it was like a long knife, come with the knife and he just come straight for me and I was backing out into the living room and as soon as I come out he hit me on the shoulder and I backed off. It was me, Byquar was in the kitchen, and the other two boys were in the house and he had his back to the hall and he was moving across. He moved in front of the entrance to the kitchen, that's where Byquar, from behind, hit him a couple times on the back. Then it was Mir that run up and then hit him a couple of times in the front and he hit the floor and that's when I realised I'd been hit, I could feel the blood coming down my arm and, yeah. He hit the floor and I walked in, I've flipped the coffee table and I saw him on the ground, asked him Where's the drugs, you know, Where's the money? And he said, you know, We don't have any. I hit him once in the leg and then - "
He said that he then left the house and went back to the Tarago, and then Mir came out, and a little while after that the last two boys. He said that the boys had some bags and a Jim Beam tin.
He said that the group then returned to the shop. He said that there were four people in the white car, being Scheck, the owner of the car, Tera and someone else.
He said that he told the boys in the Tarago that he had been hit. He went into the shop and Ray helped him with the wound. He said that Ray had not been out in the Tarago that night.
He said that when he returned to the shop the man who was introduced as Bishop was there, including when he was talking about the injury to his shoulder. He said he went into the back where there was a sink and that Ray helped him clean up the blood.
Natuba said there was another person at the shop he met at the pub but who did not go out with them to the jobs. He said his name was Ricky (Vergara). He said that Ricky helped him out because he had to go to hospital, because he had a big wound which would not stop bleeding. He said they came up with a story for once they got to the hospital "if the coppers showed up". He agreed that before he left the shop to go to hospital there was a discussion about him going there. He said Bishop said that he should not go to Liverpool because it was too close to the area, and that it was better to go to Bankstown.
He said that on 3 July he indicated to the police the Chester Hill Hotel, the shop and the location where the Tarago stopped and met the white car at Merrylands.
Natuba agreed that on 13 July police asked him to look at some photographs as part of an identification procedure. In one photograph he identified Ray, the person who cleaned up his arm. He was then shown a photograph of Karimi. He agreed that he told police that he saw the person in that photograph (Karimi) at "Kesley Burgess' house, but he didn't come in. He waited around the corner". He also agreed that he told police, "He stayed in the car, telling us what to grab inside, telling us that he could have had a shotgun".
Natuba identified a photo of Tamapua and indicated that he was present on the night of the murder but did not go into the premises.
Natuba agreed that when he first spoke to the police at Bankstown Hospital not all that he said was true. In cross-examination by counsel for the applicant, Natuba stated that after he finished work on 1 July, he went to the pub and drank two or three schooners by himself before his cousin called him. He was shown phone records and agreed that the first contact he had on 1 July with his cousin Sonny was a phone call he made to him at 6.04 pm. He was shown a text from Sonny at 6.22 pm which said, "U want 2 recruit 2 united! Dont call txt me!". He was referred to his text "Wats dat" and the response from Sonny at 6.26 pm, "New game cumin up! Conected 2 benditoz n that!". He agreed that "benditoz" was Bandidos, the outlaw motorcycle organisation.
Natuba said he understood that the reference to "new game" in the text meant a "new crew" or "new gang" starting up.
Natuba said he arrived at Chester Hill at about 8.00 pm. He said he met Sonny at the station. He said he could not remember the identity of the person who was with Sonny. He said they went straight from the station to the pub.
Natuba recalled that on the way to the pub, Sonny told him that he was going to introduce him to "some boys and that". He said that at that stage they did not talk about doing any jobs and that he thought they were just going to the pub for drinks. He said he had two or three beers there, and that prior to that he had been drinking in the Doonside Hotel and had bought a couple of bottles of Bundaberg rum with a mixer when he went down to watch footy training. He agreed that he had quite a lot to drink before he got to the pub at Chester Hill, but said he was not really affected when he got there. He said, "I could still kind of, kind of knew what I was doing". Natuba stated he was at the pub for 10 to 15 minutes, during which time he had three schooners and played a game of pool.
So far as his recollection was concerned, it was put to Natuba that after he spoke to the police in July 2010, he did not even remember Tamapua's name. He agreed that Tamapua was one of the persons his cousin introduced him to at the pub, saying that he was the first person he was introduced to. He maintained that no jobs were discussed until they arrived at the shop. However, he subsequently said that he thought there might have been discussions at the pub about doing jobs, which was why they went to the shop. He was asked what sort of jobs they were discussing at the pub and he said he thought it was just break and enters.
Natuba said he could not remember anyone at the pub saying why they were going to the shop but stated that no one said anything about helping the owner set up the shop. He thought that four or five of them arrived at the shop at the same time. He said the persons who arrived included him, Sonny and Tamapua, and that a couple of boys came afterwards, but agreed he had no clear recollection as to who was in the shop at the time. He also agreed that he had no clear recollection of this when he was asked by the police in July 2010.
He stated that when he arrived at the shop, he thought there were four people there, two males and two females, including a tall person of Middle Eastern appearance.
He repeated that he thought he was introduced by Tamapua to Bishop, who was the owner of the shop. However, he agreed that on 2 July 2010 when he spoke to the police he never used the name Bishop to describe anybody. He agreed that he provided racially based descriptions of persons who were there at the time and that it was not until he received the police brief in 2011 that he had started to associate names with people.
Natuba was asked about his evidence in chief to which I have referred at [97] above. He agreed that he knew about jobs before he got to the shop. He was referred to his evidence in chief when he said that when he got to the shop there was a man and a woman there. He agreed that his recollection was there were four people there, two male persons and two female persons. He was referred again to his evidence to which I have referred at [98] above. He said he could not recall who it was who decided who was going to do the jobs. He was referred to his evidence in chief where he said that it was Tera and Scheck who were telling them who was to do the jobs, but he said that in fact he did not have a clear recollection. He agreed that a lot of people were talking and that was why he did not have a clear recollection.
Natuba was then taken to the events of the evening of 1 July after he left the shop in the Tarago. After being asked questions about where people were located in that vehicle, he was asked the following questions and gave the following answers: "Q. What you understood as to how many jobs would happen that night as you jumped into the car outside the shop? A. Just one. Q. Just one? A. Yeah. Q. Were you told where that was going to be? A. No."
He agreed that whilst in the Tarago going to the first job it was Tamapua who was telling him and the other boys what to do, and that Tamapua was "directing traffic". He was asked whether, while they were all in the Tarago, Tamapua had ever used a name to describe who would be in the house, and he said he did not. He was asked if he had ever heard Tamapua use the name "Beanie Boy" and said he had not.
Natuba said that after the invasion the subject of count 5, he and the other persons involved returned to the Tarago and someone told Tamapua that they went to the wrong house. He said that Tamapua was angry, picked up the phone and appeared to be talking to somebody. He said he did not know to whom Tamapua was talking, but agreed he was arguing with the other person. He said he fell asleep during the course of the conversation. He stated that before leaving Warwick Farm and before he went to sleep, he could not recall anybody saying, "Hey, how about we do another job". He said that Tamapua did not say to him and the rest of the boys, "I have an idea. We have another house I have got in mind we can knock over" or words to that effect.
Natuba said he thought it was when the second car came that he knew they were going to do another job. He said, "Somebody told me but I knew from there". He said that someone told him about the second job when they were driving towards that job. He said he was not sure whether it was Tamapua who told him where they were going.
He stated that when the cars arrived at the Lurnea house Scheck was in the white car in front and pointed out the house. He said that Scheck came to talk to them in the Tarago. He said that only Scheck and the driver were in the white car. He stated that Scheck told them to "grab drugs, money" and that there could be a shotgun in the house so to try and get that too. He said that the same boys went to do that job as did the first job. He stated that Tamapua stayed in the Tarago at Lurnea.
Natuba agreed that after he got back to the shop he did not know what happened to the weapons.
Natuba agreed that he signed a statement in a police notebook at the time he was interviewed in hospital on the morning of 2 July. He said that contrary to what he told the police officer, he bought the three bottles of rum and coke before he went to training. He agreed that the truth was that he had four or five schooners of beer at the pub and then drank the three longnecks of rum and coke on the way to training. He agreed that the reason he did not train that particular evening was because he was drunk. He agreed that the balance of the statement recounting how he was injured was in large part untrue. He agreed that what he was doing was blending the truth with lies.
Natuba agreed he next spoke to the police on 2 July when an ERISP was conducted. He agreed that his answer in that interview that he was told to go to the house by Tamapua was correct. He agreed that in some respects he did not tell the truth in that interview because he was trying to protect his cousin Sonny.
It was suggested to Natuba that he did have a knife with him at Doonside, and that when he left Doonside he knew something was going to happen because he had spoken to his cousin Sonny about it, and he agreed. He also agreed that before he left Doonside he knew he was going to become involved in home invasions but said that he did not know it was going to happen that night.
It was put to Natuba that in the answers he provided to the police officer, he provided a description of who told him about the house at Warwick Farm. He agreed that it was definitely the person who was in the front seat of the Tarago, and that that person was in fact Tamapua. It was put to him that Tamapua supplied the address for both jobs. He said, "It was different people for different - for both jobs" and clarified that by saying he was sure it was different people for both jobs.
Natuba was then cross-examined on his ERISP dated 3 July 2010. He agreed that he told the truth in that interview when he said that Sonny spoke to him whilst he was at Doonside and Sonny was at Chester Hill on the evening of the jobs, and told him that there were jobs available that night if he wanted to do them. He agreed he told the police in that interview that when he left the pub with the boys, they were discussing doing those jobs outside the pub. He was referred to his statement in that interview that the "Islander fellow" was doing the talking and identified that person as Tamapua. He was referred to his statement to police that the man who provided him with weapons was the "very large wog" who he saw in the shop.
Natuba was taken through various other questions in the interview. He agreed that what he was describing was that after the first job proved to be a failure and he returned to the van, and after Tamapua had the argument on the phone, Tamapua then said to the "assembled lads", "Do you want to do another job?" He said that was his recollection of events and that shortly after that he went to sleep.
Natuba was then asked about his evidence in the committal proceedings. He agreed, after being referred to that evidence, that in June 2012 he had a clear memory of Tamapua giving "you lads" the option of doing a second job that night.
It was put to him that his clear recollection on 19 June 2012 was that it was Tamapua who pointed out the house in which Kesley Burgess was killed. He agreed that was what he said on 19 June 2012, but said he now thought it was the person in the white car. He agreed that what he said at the committal did not marry up with his understanding of what the police brief said. In cross-examination by counsel for Karimi, Natuba agreed that he did not tell the whole truth to the police. He agreed he was on two good behaviour bonds at the time he got himself involved with his cousin and the other participants.
Natuba agreed that after he knew that Mr Burgess had died, he asked the police what would happen if he was to "roll over", namely, if he became a witness, and they explained it to him. He agreed that the police told him that he would get a significant benefit by pleading guilty, and that he would get a bigger benefit by "rolling over" and giving evidence.
Similar to the approach taken by counsel for the applicant, counsel for Karimi put to Natuba that he was influenced in what he said in his evidence by what was in the police brief.
He agreed that whilst he was in the Tarago he kept nodding off and did not hear everything that was said or see everything that was done. In that context he was referred to inconsistent evidence he gave concerning the number of people in the Tarago.
Natuba agreed that in travelling out to Warwick Farm, he never saw any firearm, and never spoke to anyone about any firearm. He agreed again that Tamapua pointed out the house the subject of the home invasion and the alleyway that they had to run to. He agreed that it was Tamapua who was angry that the wrong house was invaded and who was attempting to fix the situation by making a phone call to find out which was the right house. He agreed that when nothing came of going to the right house, Tamapua said, "Boys, do you want another job", and that the other job turned out to be Mr Burgess' house.
Natuba was referred in cross-examination to the identification procedure of various people he went through about 12 days after his arrest. He agreed that at that time when he identified Tamapua he was in no doubt he was the one who had pointed out the Burgess house. He was referred to his evidence that "He [Tamapua] pointed out the house belonging to Kesley Burgess as the place we were going to rob." He was referred to the fact that he gave the same evidence at the committal proceedings.
He agreed that his evidence in chief was that he saw Scheck pointing out the house. It was put to him he did not have any recollection of that at all, but he stated he knew that someone pointed the house out.
It was pointed out to him that in his interview of 3 July 2012 he stated that the house was pointed out by whoever was in the back because he was just starting to wake up It was put to him that he never saw anyone pointing anything out, and he responded that he did not know. He was asked, "So why lie about saying Scheck pointed out the house from the front car?" and he responded, "I thought he did". It was put to him that he did not see the man who he called Scheck getting into any white car, and he responded that he did see him. It was put to him that on 3 July he told the police that Tera and the driver of the Tarago got into the white car and he agreed. He also agreed he knew that the driver of the Tarago was not Scheck. He was then referred to his answer in that interview that it was the "rat's tail Asian and the Samoan" who got into the white car. He agreed that the Samoan was Tera.
It was then put to him that based on his statement in the interview, whoever got into the white car had come out of the Tarago. It was suggested that if one of them was Tamapua he could not have been in the Tarago when it arrived at the Burgess house. He said he got mixed up.
He was referred to his evidence in the committal proceedings that Tera and Scheck got into the white car, and was asked why in these proceedings it was only Scheck who he claimed got into the white car. He answered, "I don't know".
He stated that he was certain that it was Scheck who told him, "Go in, grab drugs, money, and the guy could have a shotgun so get that too".
In cross-examination by counsel for Mir, Natuba again agreed that when he first started giving information to the police about what happened on 1 July, he had very limited knowledge of people's names. He agreed that he started to adopt names when he read them in the police brief.

m Detective Senior Sergeant Scott Houldin

Detective Senior Sergeant Houldin attended the scene of the home invasion at Warwick Farm and the one which took place at Lurnea at which Mr Burgess was killed. He gave evidence of the seizure of the Tarago on 6 July 2010, stating that Ramos was in the driver's seat.
Detective Senior Sergeant Houldin noted that on 12 July he showed Tamapua a number of photographs. Tamapua identified Ramos and said that he drove the people that murdered Kesley Burgess. He noted that Tamapua also said that the person he identified from the photograph as Mack (Mir) was the person who sliced Mr Burgess' right wrist.
Detective Senior Sergeant Houldin gave evidence that Tamapua was shown a photograph of the applicant. He stated that Tamapua said that on the night of Kesley Burgess' murder the applicant was at the shop and "they basically called him 'the boss'". He said he knew him as "John Bishop" and stated that he was the one "who gave the call to his triggerman, Scheck, to do the Jacob's job".
Detective Senior Sergeant Houldin stated that Jacob was the brother of Kesley Burgess.
Detective Senior Sergeant Houldin gave evidence of further identification procedures which took place with Tamapua on 14 July. Tamapua identified MA as one of the persons he saw on the night of the murder, saying he saw MA in the maroon Tarago at the back of the shop. He said that Tamapua stated that MA ran into the house with the three other males who killed Kesley Burgess.
Detective Senior Sergeant Houldin said that Tamapua identified a photograph of Karimi. Tamapua said he saw him on the night of Kesley Burgess' murder, at the pub, in the car and in the shop. Tamapua stated that he was the person who pointed out the house of Kesley Burgess on the night. He said that Tamapua described him as "John Bishop's right hand man" and said that they called him "the trigger man".
Detective Senior Sergeant Houldin stated that Tamapua also identified a photograph of Vergara ("Choppy Chan"), who he said was at the shop on the evening in question. Tamapua also identified a photograph of Natuba, who he said was the one who sliced Mr Burgess' ankle and got sliced a couple of times on his arm. He stated that Natuba told him, "After Kesley Burgess sliced him he lost it and started chopping into him".
Detective Senior Sergeant Houldin referred to an interview he had with Tamapua at the Long Bay Correctional Centre on 12 July. He stated that his notes recorded Tamapua's answers, using Tamapua's words only and adding nothing of his own. He was referred to one of the questions, "Who do you know this person to be?" and Tamapua's answer, "John Bishop". He was referred to the question he asked, "What did this person do", and the response, "He is the one who gave the call to his triggerman Scheck to do the Jacob's job". He stated that Tamapua signed the document.

n Detective Sergeant Nicolas Sedgwick

Detective Sergeant Sedgwick was an officer who was also involved in the investigation of the murder of Kesley Burgess. He gave evidence concerning the seizure of a certain mobile phone, and the fact that he obtained an intercept warrant for the applicant's phone and Aimee Walsh's phone. He identified calls that had been made by the applicant which had been recorded. Some of these calls were played. To the extent necessary they will be dealt with in dealing with the parties' submissions.
Detective Sergeant Sedgwick gave evidence about footage obtained from CCTV from a service station at Merrylands recorded on 1 July 2010. He said of interest to the police were vehicles which had the same shape or appearance as a maroon Tarago and a white small vehicle.
He was shown photographs taken from the CCTV footage at the BP Service Station at Merrylands which showed a vehicle consistent with the Tarago. The fourth and fifth pages of the photographs also showed the Tarago, whilst the sixth had the Tarago and a small white vehicle near to it with its headlights on. He said that the seventh showed the Tarago and the small white vehicle mostly obscured, whilst the eighth showed the Tarago and the small white vehicle pulling away from its other side. He said the ninth showed the Tarago driving away, and the tenth showed the Tarago following the small white vehicle, having performed a U-turn.
There was tendered through Detective Sergeant Sedgwick a registration certificate for a Toyota Echo motor vehicle registered in the name of Sadequa Karimi. Detective Sergeant Sedgwick said he was able to determine that Sadequa Karimi and Mohammed Karimi were cousins. He also stated that his investigations showed that Abdul Wahid Karimi, Sadequa Karimi and Jacob Burgess attended the same high school.
Detective Sergeant Sedgwick gave evidence that the maroon Tarago associated with Ramos was registered in the name of his father.
Sergeant Sedgwick gave evidence that he recovered Kesley Burgess' phone at the premises occupied by Tamapua wedged under a brick near a fence.
In cross-examination by counsel for the applicant, Detective Sergeant Sedgwick agreed that on 3 July Tamapua used a phone that effectively belonged to Kraak. He agreed that although a mobile phone is linked to an individual, the calls made on it may not be made by that individual. He was asked about a call at 9.28 pm on 1 July 2010 which appeared to be from Kraak to someone called Dean Manning. He agreed that he understood that as of 1 July Kraak was sharing accommodation with Tamapua.
Detective Sergeant Sedgwick was referred to a series of phone calls commencing at 11.11 pm on 1 July between the phone identified with Vergara and Andrew Rhodes-Lightfoot (Beanie Boy). He agreed that those calls predated the Lurnea events.
Detective Sergeant Sedgwick said that to his understanding, Rhodes-Lightfoot was contacted on the night of the invasion at Warwick Farm by Tamapua and that Tamapua, for a want of a better description, taunted Rhodes-Lightfoot. He agreed it appeared that Tamapua was using Vergara's phone throughout the evening, and that Vergara's phone was used to contact Rhodes-Lightfoot on a number of occasions throughout that night. He agreed there were quite lengthy conversations recorded.
He also said that from his review of the telephone calls, Kraak had been contacted by Tamapua between the Warwick Farm home invasion and the second home invasion at Lurnea.
In re-examination, Detective Sergeant Sedgwick stated that the CCTV footage at the Chester Hill Hotel was four minutes slow.

o Tamapua

Tamapua agreed that he was known as Tera. He agreed that he pleaded guilty to the offence of specially aggravated break and enter and steal on 29 June 2010, which included the infliction of grievous bodily harm upon James Stiff. He also agreed that he pleaded guilty to the murder of Kesley Burgess. He also agreed that he pleaded guilty to two offences that related to the incidents the subject of count 9 against the applicant, and that he asked that similar offences to those charged against the applicant and his co-accused on counts 1, 5 and 8 be taken into account on sentence. Tamapua agreed that he received a 50 per cent discount on sentence, made up of 25 per cent for the plea of guilty, 10 per cent for past assistance to the authorities and 15 per cent for future assistance.
Tamapua said that before 29 June 2010, he was protecting a drug dealer named Kevin who was dealing at Villawood. He said he was sitting in Kevin's house and Bishop and Scheck walked into the house and pulled the drug dealer out of the house. He said he told Bishop and Scheck he was protecting the drug dealer and that Bishop told him to piss off.
Tamapua said that Bishop and Scheck were accompanied by Ray (Tuki) who he knew and maybe four other people.
Tamapua said that Bishop asked him for his phone number and that he gave it to Ray. He said that the next day, he was rung by Ray to meet him at Kevin's place, as he was going to take him to a place named "the compound", which was a bedsitter "where Bishop was staying with his missus". He said that the next day Ray met him, and they walked to the Compound and met Bishop and Scheck. He said he took Toby (Kraak) with him. He said that Kraak was living with him at Campbelltown.
Tamapua said that they went out to the back of the Compound. He said that Bishop pulled him to the side and said, "What do you do?" and that he replied, "Oh, I protect drug dealers, but a couple of my boys they do home invasions". He said that Bishop said to him, "Oh, do you want to join?" and that he replied, "Well, is this going to make us, is this going to make good money?" and that Bishop said "Yes", so he joined. He said that after that, Bishop said, "Come out the back and meet the boys" and that he was introduced to Scheck.
He said that the following day, Bishop told him he had a few jobs shutting down drug dealers. He said that Bishop said to them to bring some of their mates the next day and that Harry was going to show them a house in Ashcroft, which was where the job was supposed to happen. The actual identity of Harry was not made clear at the trial. Tamapua said that the next day he brought a couple of his boys down, including MA, CJ and Dosh (Ramos). He said that they travelled from his house in a maroon Tarago driven by Dosh. He subsequently indicated that Ricky (Vergara) was also there.
Tamapua said that when they arrived at the compound, Scheck, Ray, Bishop and Aimee Walsh were there. He said that Bishop brought them to the front of the compound and made a joke, saying, "Oh, we're going to do a job right now" and that he told Scheck to get the .22 calibre rifle. He said that a couple of the boys were a bit nervous because they did not want to do anything at that time. He said that Scheck said, "Here's the gun", and that Bishop said he was only joking but also said, "there's a bloke that's coming down from Ashcroft, to take youse and show you the address in Ashcroft, which is the house you're going to be doing tonight".
Tamapua said that the gun came from the compound.
He said that he and the boys waited outside, and that when Harry, who was a "big Lebanese bloke", got there, Bishop said, "This is the bloke here who's going to be taking you to an address in Ashcroft". Tamapua said that by that time he had the machete already in the Tarago, and that Bishop handed over the gun to Scheck and said, "Harry's going to be taking youse to an address in Ashcroft" so they left.
Tamapua said that the Ashcroft job did not happen on that day, because the guy who owned the house was not in the house. He was reminded that the Ashcroft job the subject of count 2 took place on 29 June and said that he thought the proposed Ashcroft job was the day before.
Tamapua said that the persons travelling in the Tarago on that day were Scheck, CJ, Josh (Bautista), Ricky and Dosh. He said that after they returned to the compound, they were told to come back the next day, which was the day of the Lakemba job. He said he recalled Bishop saying, "I've got a job for you tomorrow". He said that before he left, Bishop asked, "What weapon do you have to use?" and he replied, "I've got a machete in the van". He said that Bishop told him to go and get it and leave it at the compound, so if anything happened they would know where the weapon was, and that it would be a lot easier for the boys to pick it up from Bishop's place.
Tamapua said that the next day he arrived at the compound about 8.00pm. He said he arrived with the same people who were with him the day before, and that the same people were at the compound as on the previous day. He said that Harry was not there.
Tamapua said that he went inside and brought Ricky with him, and that Bishop said, "If youse want money, I've got a job for youse". Bishop said that what he wanted was the Desert Eagle gun, saying that there were other guns with it, but that if they could get it he would pay them the price of the guns. He said that Bishop said this in the presence of Ray, Scheck, Aimee, Ricky and himself.
Tamapua said that Bishop and Aimee told them to follow them to the address. He said, "We hopped in the Tarago, Aimee and Bishop hopped in their green SS Commodore and we followed them to the address".
Tamapua confirmed that he, Scheck, Josh, Dosh, Blackie (MA) and Ricky were in the Tarago, and Aimee and Bishop were in the green Commodore. He said that there was one person in another vehicle in front of Bishop's car. Tamapua said they got to the address and parked next to a petrol station across the road. He stated that Bishop came out of the car and told them that the house was two houses on the right. He said that there were two weapons in the vehicle at the time, which were the machete and the .22. He said that before they left the compound, Bishop had grabbed the .22 from the cupboard. Tamapua said, "He grabbed the .22 with a satchel that had bullets in it, he walked out to the lounge room with it, loaded it, gave it to Scheck and gave Scheck the bag of ammunition with bullets inside". Tamapua said he had grabbed the machete and taken it.
Tamapua said that Ricky, CJ, Josh and MA got out to do the job. He said that they came back and told them that there were four males and a female inside the house and they did not want to do it, and that Scheck told them to go back because Bishop specifically wanted the Desert Eagle from the house. He said they went back again, and then came back and said the house light was turned off and no one was home. He said that Scheck got angry because they did not get the gun. Scheck said, "Get in the car, let's go. We're going to get shot when we get back to the compound because Bishop specifically said to get the Desert Eagle".
He said that when they returned to the compound Bishop said, "Well, because youse didn't do the Lakemba job, youse can make it up by going to do the Ashcroft job". Tamapua said that the Ashcroft job was done the same night as the Lakemba job. He said that that was said in the presence of everyone that was in the van and Aimee and Ray.
Tamapua said that when they got back to the compound the weapons were taken out of the Tarago and into the unit. He said that Scheck had the .22 and Ricky had the machete and carried it to the compound. He said that the machete came with them to Ashcroft.
Tamapua said they drove to the address in Ashcroft, where he pointed out the house which had been shown to them by Harry. He said that they stopped near an alleyway and he said to the boys that the alleyway would take them straight to where the house was, and the boys left. He said that by "the boys", he was referring to CJ, MA, Josh and Ricky. He said that Ricky took the machete, and that he, Scheck and Dosh remained in the vehicle.
Tamapua said that he recalled Scheck telling the boys what was in the house, which was something to do with weed, and that they went and did the job and came back with just a laptop and a container of cannabis.
Tamapua said that when they returned to the compound, Bishop and Aimee were there. He said that after they got out of the van, Scheck lined up his boys and patted them down to make sure no one was hiding anything from the job that was done.
He said Bishop weighed the cannabis and handed it out to the boys to smoke that night. He said that at that stage everyone started leaving, although he and Scheck stayed.
Tamapua said that after the others left the compound, Bishop told him he was planning on shutting some drug dealers down at Liverpool, referring to a motel called Grandstand which was across the road from a horse track at Warwick Farm. Bishop said he knew a few dealers there and asked Tamapua to recruit more boys to shut them down. He said he wanted them shut down so he could put his dealers in there and make his money, and "stuff like that".
Tamapua gave evidence about his first visit to the shop. He said that the day before the murder happened, they went to the compound and Bishop told them to meet him at Chester Hill to help him clean the shop. He said that they all met him at the shop and helped him clean. He said that the persons who were there were his brother, his missus' brother, Ricky and Toby. He said that Bishop and Scheck were there when they arrived at the compound. He said they got to the shop at about 7.30 or 8.00pm that night.
Tamapua said whilst they were cleaning the shop, Bishop got a phone call from his girlfriend saying that "these Lebo blokes are harassing him [sic] at the kebab shop", and so they "all just left everything and ran to the kebab shop". He said that because his missus was pregnant at the time and was also at the kebab shop, "me and Ray … just smashed everyone in the shop, including the shop owner". He said that after that, they all split up and went their own ways and jumped back in cars and took off back to the compound.
Tamapua said that the next morning, he asked Ricky and Toby and his missus to come down with him to the compound. He said they caught the train from Campbelltown to Villawood, but that on the way there he saw Sonny (Byquar) on the other side of the station in Minto and told him to meet him at Cabramatta. He said they got off at Glenfield, and that Toby and Ricky got onto another train and continued going to Cabramatta. He said he and his missus stayed back and waited for Sonny and got the same train as him. He said Sonny said, "I heard stories from Cabramatta that you were doing home invasions and standing over people and stuff like that". He said Sonny asked him, "You making good money?" and that he said "Yeah, do you need money?" Tamapua said he said to Sonny, "Oh, if you want in, I'll introduce you to a few of the boys I know, they'll help you get some money". He said they stopped at Cabramatta, met Toby and Ricky again and all took the train to Villawood. He said he rang Ray to let him know they were going to the compound but that Ray said to meet him at the shop.
Tamapua said that when he reached the shop the roller door was shut. Scheck opened the door and they walked in. He saw Scheck, Mack (Mir), Mack's girlfriend (Eliza Brown) and Aimee. He said that Scheck introduced him to Mack, and he introduced Sonny to Bishop. He said that Bishop asked Sonny, "Do you have any boys and stuff". He said Bishop was telling him about United Brothers and how he wanted to expand it. He said Sonny said, "Yes, I've got boys in Doonside", who were Tomasi's (Natuba) boys. He said Bishop told Sonny to bring a few of them down and that he was going to put them through a test that night as an initiation for the boys.
Tamapua said they then continued cleaning the shop. He said Bishop brought out the butcher's knives and said, "Look at this". He then said, "There's plenty more from where that came from". Tamapua said he replied, "What do you mean?" He said he was shown a box that was already there which was full of butcher's knives. He said that Scheck then said, "Let's go to the pub, my shout".
Tamapua said they went to the Chester Hill pub. He said they played some pokies and had a few drinks and went over to the pool area. He said that Ray was trying to find them, as he did not know where they were. Tamapua said he told him they were at the pool area, and that Ray then walked in and he said to him, "Get the car ready" and "Ring Dosh". He said he told Ricky to get a hold of Dosh and to tell him to come down. He then said that Ray called Scheck and they walked outside and spoke about something. He said he could not hear what they were saying, so he "got the shits" and "grabbed the boys and went back to the shop". He said that by that stage Natuba had joined them. Tamapua said that when he got back to the shop, he confronted Bishop about how Ray took Scheck to one side and spoke one on one. He said Bishop replied that it would be sorted out when Ray and Scheck got back. Tamapua said that when they returned, he said to Scheck in the presence of Ray and Bishop, "Yeah, I told youse, if I'm going to be joining youse, youse have to be up front with us and youse have to be honest with us". He said Bishop told Scheck and Ray off. He was then asked these questions and gave these answers: "Q. What happened then? A. And then we all just sat around and then Scheck turned around to Bishop and said 'do you want us to do the Jacob job tonight?' And Bishop said 'yes'. And Scheck turned around to the boys and goes, 'I want to take you to a house where there's a couple of - ice, drugs, and weapon'. And I said to him, 'I got a drug dealer as well. His name is Beanie Boy, he lives in Warwick Farm'. And that was the jobs that was done that night. Q. You say that there was talk between Scheck and Bishop about a Jacob job? A. Yes. Q. Had you heard anything about the Jacob job prior to it being mentioned in the shop at this time? A. Like before we - … Q. And you say you raised a job yourself, being Beanie Boy? A. Yes, because I knew this Beanie Boy. Back then he was dealing drugs and I knew he was - and plus I had a grudge against him. I wanted him to feel the pain I had inside me so. Q. There were conversations you've told us about which you've taken up to a time where you raised your job? A. Yes. Q. What happened then? A. Me, Scheck and Bishop decided who was going to run in the houses and we decided that it was going to be Tomasi, Sonny, [MA] and Mack because they were the three new blokes. It was pretty much initiation for all three of them. Q. Who were the three new blokes? A. Mack, Sonny and Tomasi. Q. New blokes, Blackie, or [MA], he'd been in the-- A. Blackie was the one that done the Ashcroft job with Dosh and Ricky. Q. When you say 'we decided', can you tell us what happened there? What conversation took place between you, Scheck and Bishop about deciding who's doing it? A. I turned to Bishop and I said 'do you reckon we should put these guys for initiation for the Jacob job and the Beanie job?' And he agreed, he goes, 'yes'. 'We want to see them in action, see if like they've got balls to do these types of jobs'."
He said that Bishop then gave butcher's knives and gloves to Mack, Sonny, Tomasi and Blackie. He said after they had been given out they left in the maroon Tarago driven by Dosh. He said the passengers in the Tarago were himself, Scheck, Mack, Tomasi and Sonny. He said they went straight to his job which was the Beanie Boy job in Warwick Farm. He said he knew the location.
Tamapua said that when they got there, he said to Dosh, "Drive past and I'll just point out to the boys where the house is". He said they drove past the house. He said that Mack, Tomasi and Blackie got out of the Tarago and he showed them an alleyway which led straight to where he showed them the house, and they walked from the alleyway and did the job. Tamapua said that when they came back they said there was nothing in there, "only an Islander family". He told them they went to the wrong house. He stated he ended up ringing Beanie Boy and had a hostile conversation with him. It is unnecessary to set out the details of the conversation.
Tamapua then gave an account of what occurred subsequently: "Q. What happened then. You were in the vehicle, in the Tarago? A. Yeah, that's when Scheck turns around and says 'Let's go to Merrylands' and pick up his cousin, someone in Merrylands. Q. Did you drive to Merrylands? A. Yes. Q. What happened when you drove to Merrylands? A. We enter the street, and I don't know what street's called, but we parked at a street and looked over to my right and seen a little white car and I seen a bloke walking towards us and at that time Scheck was still on the phone. I said in my head he is talking to him. So he walked over and he hopped out - Scheck hopped out of the car and told me to hop in the white car with him. So I jumped out of the maroon car and Dosh turns around and said 'oh, I have to go to the petrol station and fill up'. They went to the petrol station and filled up and me and Scheck and his cousin I just met hopped in the white - Toyota Yaris or something, white little car."
Tamapua said that Scheck referred to the man in the white car as his cousin. He then went on to give the following evidence: "Q. What happened then? A. So, we hopped in the car and Scheck goes, 'Go to the petrol station and meet the boys'. So we drove over to the petrol station and met the boys in the maroon Tarago and Scheck goes, 'Follow us' and the boys in the maroon Tarago followed us to the address in Lurnea. Q. So, you are in the white car, is that right? A. Yes. Q. So, who was driving that car? A. Scheck's cousin and Scheck was in the passenger side, I was behind him in the back seat. Q. When you say Scheck was in the passenger side, you talking front-- A. Front passenger seat, yes. Q. You then said you drove to Lurnea, is that right? A. Yes. Q. So, you are in the white car and travelling to Lurnea? A. Yes. Q. Did you see where the Tarago was? A. It was behind us. Q. What happened at Lurnea? A. On the way there I started - I leaned back and relaxing and when we got there I heard Scheck goes, 'That's the house there' and looked over. All I seen was just cars in front of the house, so I didn't really know which house it was. He just goes, 'That's the house there' and I looked over and just cars there. And he was going to park there - Scheck's cousin was going to park there, Scheck goes, 'don't park here, park around the next street'. We turned right next street and turned left, just at the left we parked right there. And Scheck got out of the car and went over to the maroon Tarago and explained to them what to do."
Tamapua stated that when he arrived at Lurnea, he, Scheck and his cousin were in the Yaris (the Echo) and that Scheck said, "That's the house there" and told his cousin to go down the street more. He said that the Tarago was behind them, and that both vehicles parked and Scheck got out of the car and walked towards the maroon Tarago. Tamapua said that he stayed in the car with Scheck's cousin. He said that subsequently Mack got in the car with blood on his clothing and face, and that he heard the Tarago "flying past" them. He said that Scheck's cousin "quickly took off in the car".
Tamapua said that they ended up going back to the shop in Chester Hill. He said that Scheck told him to ring the boys in the Tarago and see where they were. He said that when they got back to the shop, Mack ran straight to the back, took off his clothes and chucked the butcher knife in the sink. He said that when they arrived at the shop his girlfriend was there along with Aimee, Ricky, Toby and Bishop.
Tamapua said that the boys walked in a couple of minutes after that. He said that they knocked on the roller door because the roller door was shut. He said that after they opened the door Dosh was the first one to walk in. He said that Dosh had an Aldi bag with three meat cleavers inside it. He said he then saw Tomasi walk in, who said "He got me". He said that Ray took off his jacket and that as he took it off, "blood was pissing out and we tried to tape it". Tamapua said that the wound was deep and that he said to Tomasi, "Take you to hospital" and that Bishop said, "Don't take him anywhere near the house, take him to Bankstown away from the area".
He stated that after Dosh and Blackie took Tomasi to the hospital, Scheck said, "The job's done" and Bishop then asked, "What happened?" Tamapua said that Sonny said, "I went to chop him" and that "he hit his foot - like missed him and got himself in the foot".
Tamapua then stated that Bishop said, "We have to pay the bloke that's injured" and that "He gets the most money". Tamapua said they all "put in a couple of bucks here and there" and that Bishop said to Sonny, "Give this to your cousin for what happened to him".
Tamapua then described going back to the compound with a person called Wally, who he described as being "higher than Bishop". He said that he sat down and that Wally said, "You must be ready". Tamapua asked, "What do you mean?" He said Wally replied, "These boys must be ready for the big jobs". He asked Wally what he meant, and Wally replied, "Just stuff to do with money, extortion, kidnapping and stuff like that".
He said that after that he, his "missus", Ricky, Blackie, Sonny and Toby went back to his home.
Tamapua was asked whether he knew either Jacob Burgess or Kesley Burgess, in an exchange as follows: "Q. All right. Now as at July of 2010 did you know either Jacob Burgess or Kesley Burgess? A. I seen them around Liverpool when I was at court, just before I met these co-accused I committed offences with. That's about it. Q. All right. So, well, when you say you seen them, are you talking about both of them? A. No, just Jacob, the young fellow. Q. All right. Did you know where he lived at the time? A. No. Q. So as at 1 July 2010 did you know where he lived? A. No. Q. All right. When it was raised about the Jacob job, first raised, before you went to the house? A. Yes? Q. Did you realise it related to a house that Jacob Burgess lived at? A. I didn't know it was a bloke that I had seen in Liverpool at that time."
In cross-examination by counsel for the applicant, Tamapua agreed that he lied when he told police he had no involvement in the Miller pools incident the subject of count 9.
Tamapua was asked about his contact with Kevin, the drug dealer who he said he was protecting (see [167] above). He denied he was a standover man. He said, "I got to protect him and him paying us", referring to himself, Toby and Ricky.
He agreed that Toby and Ricky were core members of his crew.
Tamapua was asked a number of questions about other robberies he was involved with in which he did not actively participate but remained in the car.
Tamapua declined to answer a series of questions involving a home invasion with a Mr Wally Maraache on the ground that it might incriminate him. He also refused to answer questions concerning his relationship with a Mr Chand on the same basis.
Tamapua agreed that he recalled Ricky (Vergara) telling him about a home invasion at St Andrews which went wrong. The following exchange then occurred: "Q. And it was shortly after the job at St Andrews went wrong you decided to team up with CJ and Ricky; is that right? A. No, to team up with Ricky. Q. With Ricky? A. To team up with Ricky. Q. And so the core of your new crew was you, Ricky and Toby; was that correct? A. Yes. Q. And of course you were all, at that stage I'd suggest, experienced in home invasions, correct? A. Not myself. Q. Not yourself? A. Yes. Q. You were new to the game, were you? A. No, I've never ran in the house. Q. I understand that; you've never run into a house, have you? A. That's correct. Q. Throughout your criminal career in 2010, the only thing you ever did was sit in the car; is that right? A. Wouldn't call it 'career'; but made money, yes. Q. Short career? A. Not even career. I wouldn't call it a career. Q. All you did was sit in the car, correct? A. Yes. Q. And send other people to do your bidding, correct? A. Yes."
Tamapua had previously agreed that Toby (Kraak) was a close friend of his.
Tamapua reiterated his evidence that at the first meeting he had with the applicant at the compound, he told him that he protected drug dealers and that a couple of his boys did home invasions. He also repeated that Bishop asked him to join United Brothers, describing it as a "new crew". He said it was the next day when Bishop told him he wanted to shut down all the drug dealers in Liverpool. He said at that stage Bishop said to him, "Just make sure you're there just in case something goes down", stating he understood that as meaning that if someone tried to do something wrong to the applicant, Tamapua and his group would "take care of it". Tamapua said to him, "Just pay me $50 a day", saying that he assumed that if he got into "those guys' group", he would have made more by whatever he (Bishop) was going to give them. He repeated that there was no mention of jobs the first night that he was there.
Tamapua said that Bishop did not say that the jobs he had in mind for him were "shutting down drug dealers", but that he said he had dealers in Liverpool he wanted to "take over", "meaning he wants to shut down the Liverpool, people who was dealing in Liverpool so he can take over".
Tamapua acknowledged that in his evidence in chief he missed a day, as it was actually on the second day when he met Bishop that he was asked to turn up with some of his mates. He explained that the mistake occurred as he gave that evidence on the first day of his evidence, and he was really nervous, so he skipped the part when he turned up on the day after the introduction. He said it was on the second day that he was asked to bring his mates and he rang Dosh (Ramos) asking him to bring the boys down. He said that was the bit he missed on the first day of his evidence. He then corrected himself and said it was not Dosh he rang but Ricky. He agreed, however, that Dosh was one of his crew.
He agreed he knew who was going to turn up, being Blackie (MA), CJ, Ricky (Vergara) and Josh (Bautista). He said those people had been members of his crew for a number of weeks.
Tamapua was taken again to the differences in his evidence as to what occurred at his first meeting with Bishop. He agreed that what he said on the first day of giving evidence was wrong because nerves got to him.
Tamapua was cross-examined on evidence he gave at a committal hearing of a Mr Vaivela. He stated that Mr Vaivela was his cousin. He agreed that he made a statement to the police implicating Mr Vaivela in an armed robbery, and that when he gave evidence at the committal, he denied the truth of that evidence. He said that what he told the police was the truth and that he knowingly gave false evidence at the committal for the purpose of protecting a member of his family. He agreed that he was prepared to lie under oath for his family, but not for himself or anyone else, adding that he had pleaded guilty to his offences. He was then asked further questions about the Lakemba job.
Tamapua was asked some questions concerning a Wally Maraache, who was involved in a home invasion at St Andrews in May 2010. He said he could not remember where Mr Maraache was living at the time, but then immediately agreed that he was living at Tamapua's house.
Tamapua was asked if there were a large number of knives on display at the shop on the night of the Burgess killing. He denied that meat cleavers were on display at that time but agreed that there was one box of meat cleavers in the shop. He denied that he borrowed and distributed them amongst his "fellows". Tamapua was asked about his contact with Sonny, to which I have referred at [191] above. He said he was keen to get Sonny's attention because he had not seen him for so long and said that he was not seeking to recruit him. He said that the recruitment occurred when he met him at Glenfield.
He was referred to his evidence which I have summarised at [192] above. He agreed that he did not actually tell Sonny to get Tomasi to bring the boys down from Doonside or to have a think about some bodies to recruit. It was put to him that it was not the case that he was the man who "recruited Sonny and his boys" and he responded "No". He was then asked, "Including Tomasi?" and he again responded "No". The answer is ambiguous, but the succeeding questions made it clear that he was denying that it included Tomasi. In those subsequent questions he basically reiterated what he had said in chief.
He was referred to his evidence that at the beginning of his interview with the police on 4 July 2010 he told some lies. He agreed that his evidence was that he started telling the truth after he confessed to knowing about the gun in the car, and that everything he told the police after his confession of knowing about the gun was the truth. He said that he lied to the police in saying that he had no knowledge of the gun, but that when the police told him they had intercepted phone calls between him and Sonny he decided to tell the truth because he knew they had something on him.
He was asked about his evidence to which I have referred at [194] above. He agreed that the weapon that was being referred to in that conversation was the shotgun or "the shotty". He agreed that he was aware at that stage that there was going to be a shotgun at the house at which the Jacob job was to take place. He stated that he was aware of that because he heard Scheck tell the boys, and that was the first time the shotgun was mentioned.
He agreed that he eventually travelled to Lurnea in the Yaris with Scheck. He said that Scheck did not have the gun with him and agreed that it was not in the Tarago. He was then asked these questions concerning the Lurnea job: "Q. … When you went to Lurnea you knew that the gun, that is the gun that was, according to you, the prize possession of Mr Bishop and Scheck, was neither in the Yaris nor in the Tarago, correct? A. That is correct. Q. What was your job when you went to Lurnea? A. Nothing. It wasn't my job. Q. Wasn't your job to look after your boys? A. Well how can I look after them if I was in the Yaris and they were in the Tarago? Q. Mr Tamapua are you suggesting that your job was only restricted to what vehicle you were in? A. Well when we got told we were going to do their job I had nothing to say in that job, it was all Scheck's job so whatever Scheck says to do that is what was done. I just hopped in the vehicle because Scheck told me to hop in the vehicle with him. Q. So who was directing the boys in the Tarago? A. Scheck. Q. But he was in the Yaris? A. No he was directing the boys from Merrylands where we picked up his cousin where we hopped in his car, they followed us to Lurnea, me and Scheck and his cousin was in the Yaris and the boys in the Tarago followed us behind the Yaris. Q. Yes? A. Then when we got to Lurnea Scheck jumped out of the car and went to the Tarago and me and his cousin stayed in the Yaris. Q. When Scheck went to the Tarago and you stayed in the Yaris you have no idea what Scheck said to the boys do you? A. That is correct. Q. So once you were in the Yaris your job of protecting your boys no longer applied, is that right? A. That is right. Q. Before you went to Warwick Farm to Beanie Boy's place? A. Yes. Q. You knew that there was no gun in the Tarago, correct? A. Yes. Q. But you knew you were going to do two jobs, correct? A. Yes. Q. One of which involved a house where there was a shotgun, correct? A. Yes. Q. Did you not say, bearing in mind that your principal concern was the welfare of your boys, 'Listen Bishop, listen Scheck, you better take a weapon, you better take a gun because they've got a gun, shouldn't we have one?'? A. No. … Q. Just take this a step at a time Mr Tamapua; you knew your boys were going to go into a house where there was a weapon, a gun, correct? A. That is correct. Q. You didn't for one moment say 'listen guys I think you better take your own gun with you'? A. No. Q. How was that looking after the welfare of your boys? A. I'm not going to hold my boys' hand everywhere they go, if that is what you are trying to say. They were old enough to know that there was a gun in the house and they were old enough to know if they wanted weapons well take a gun. I'm not going to make every decision for my boys. It's their actions, whatever happens to them it is their fault."
He then agreed that he was in charge of the Beanie Boy job. He said that the individuals selected to do that job were selected at the shop, stating that he selected them to do the Warwick Farm job, not the Lurnea job. He was then asked about his evidence concerning the selection of the persons to do the jobs to which I have referred at [194] above and agreed that he was fundamental in deciding who was going to do either job. He said, however, that it was none of his business who went to the Lurnea job because he did not know where the house was and it was not his job.
Tamapua was referred to his evidence that after the failed invasion at Warwick Farm he ended up ringing Beanie Boy and having a hostile conversation with him (see [196] above). He was referred to telephone records and agreed that the first time he rang Beanie Boy was at 11:11 pm. He was shown the records of the various phone calls made to Rhodes-Lightfoot that night and agreed that he was tormenting him. He agreed that at 11.19 pm he rang him back and spoke to him for eight minutes. He said he had not tormented him enough. He agreed that was why he rang him back at 11.30 pm. He then gave these answers: "Q. For 146 seconds? A. I just wanted him to tell me the truth where he was so I could go to him. Q. Well didn't you have other fish to fry at 23:30? A. What do you mean 'other fish to fry'? Q. Weren't you heading towards Lurnea at that stage? A. No. Q. You weren't? A. We were driving around Warwick Farm at that stage looking for him. Q. What, at half past 11 at night? A. Yeah, if I was coming after you, I'm not going home until I find you. Q. Then at 23:33 you're still looking for him, are you? A. Yes. Q. Driving around the Warwick Farm area, trying to find him? A. Yes. … Q. When you realised the Warwick Farm job messed up, is it then that Scheck says to you, 'Okay, let's go off to the Jacob job?' A. No. Q. When does that happen? A. When I finally gave up on looking for Beanie Boy, I just turned around and I said, 'what are we doing now?' And that's when Scheck said, 'drive to Merrylands' to Dosh. Q. So there was no mention at that stage of the Jacob job? A. Not until we got to Merrylands. Q. But you knew that the Jacob job wasn't at Merrylands, didn't you? A. That's right. Q. Well didn't you say, 'hang about, why are we going to Merrylands when we've got the Jacob job to do?'? A. I'm not going to question Scheck. Whatever decision he wants to make, that's where we're going. Q. So off to Merrylands you go. When do you know the Jacob job's at Lurnea? A. At the shop. Q. I beg your pardon? A. At the shop."
Tamapua subsequently stated that he added the Beanie Boy job to the Jacob job. It was suggested to him that he supplied the meat cleavers to "the boys" and he denied this. He also denied that by the time he and his boys left the shop to go to the Beanie Boy and Jacob jobs, Bishop was not in the shop.
It was then suggested to him that the day after he met Bishop at Kevin the drug dealer's house, Bishop asked for some protection from him. He agreed. He also agreed that he was happy to offer him protection because he was going to get paid for it. Part of that protection was to put together some of his boys, who would come and assist him in protecting Bishop. It was put to him in respect of the Lakemba job that he and Bishop drove past the house together in daylight, and that he was with Bishop on that occasion because he was protecting him. He disagreed with these propositions.
It was suggested to him that he got the idea for the Lakemba job after Bishop told him that there were "some amazing guns" in the premises. He said that was a lie. He denied that the Lakemba job was his idea.
It was also put to him that the contents of the Ashcroft job did not go to Bishop but went to him and he denied it. He said that if it had been his job he would have taken the items back to his house at Claymore. In that context, he was asked questions concerning the fact that the Burgess phone was found at his house: "Q. Is that the reason the Burgess phone turned up at your place? A. No, the boys must have grabbed it in the van because everything was brought out from the Tarago. Q. It ended up at your place? A. Of course, because the boys that done the job was at my place. Q. I suggest to you the reason you were trying to get rid of it-- A. Why would I get rid of it? I gave it back to Blackie. … Q. You were saying you weren't trying to get rid of the phone? A. I didn't say I weren't trying to get rid of the phone. It was handed to me by Blackie and he said to me 'look at this phone'. I scrolled down the pictures. I seen the bloke with the gun and Rebel flag and I said 'F this, I'm not looking at this any more. I gave it back to Blackie and for some reason it ended up in Toby's possession on the Miller pools incident. Q. Are you suggesting in fact that phone, you didn't tell Toby to lose that phone, to hide it? A. I said to him 'do whatever you want with it, hide it, sell it, do whatever you want with it', so really, it is not in my hand. Q. You see the fact is the phone, Mr Burgess' phone ended up at your place, didn't it? A. Yes. Q. You said you had the option of taking stolen goods either to the compound or yours, if it was your job you would take it to your place? A. Just the phone, are you trying to say just the phone we took, there was other stuff taken from the Burgess house too, it didn't end up at my house, just the phone. Q. The other stuff taken was in fact a steel can or tin, is that right? A. Yes. Q. That had some marijuana? A. Yes. Q. You remember that clearly being taken from the Burgess household? A. Well it didn't come out of Warwick Farm house. Q. You remember it coming from the Burgess household, is that correct? A. Yes. Q. That is as clear as day to you? A. Yes."
He was then asked about who was at the Chester Hill Hotel with him on the evening of 1 July and he said Ricky, Toby, Tomasi, Sonny and Scheck. He agreed that Dosh, Blackie, Ricky, Tomasi, Sonny and Mack were all his boys and that he was in control of them. It was suggested to him that the Beanie Boy job and the Lurnea job were discussed at the pub and not at the shop. He denied this. It was also suggested to him that the only time these jobs were discussed was in the privacy of the snooker room of the Chester Hill Hotel and he also denied this.
He also denied that it was his and not Bishop's suggestion to use the meat cleavers.
Tamapua was then taken to his interview of 12 July 2010. He was taken to his identification of a photograph of Bishop and his answer to the question whether he knew that person, to which he responded, "John Bishop. He is the one who gave the call to his triggerman Scheck to do the Jacobs job". It was suggested that he knew about the Jacob job because he planned it and because he knew Jacob.
In relation to his interview of 4 July 2010, he agreed that his statement in the interview that he did not know Scheck's name but only knew he was described as "triggerman" was a lie, as was his statement that he had seen him "here and there" but had not really spoken to him. He then volunteered that the whole of his first statement was a lie, until he "decided just to give up, just to tell the truth". He agreed that in the interview he initially tried to distance himself from Vergara.
Tamapua denied that the United Brotherhood was an invention.
Tamapua denied the suggestion that the .22 was his weapon and that he showed it to Bishop and invited him to handle it.
Tamapua was taken back to his interview of 4 July. He was referred to that portion where the police officer said, "We've had dealings before and I stick to my word and we will help your family". He said that every statement he made to the police from that time was the truth.
Tamapua admitted that he lied to the police with respect to the Miller pools incident (count 9), in that when the car he was in was stopped by the police he told "the boys" to tell lies and not to reveal that they were going to the pools to give Sonny a hand and that there were weapons in the car. He agreed that he was trying to satisfy the police that he knew nothing about the weapons in the car. He admitted that he told the police a series of other lies in relation to this incident, and particularly that he did not know there was a machete in the car. He was referred to photographs he was shown, including one of a sawn-off rifle. In his interview with the police he said he had "never seen that before", which he agreed was a lie. He was then referred to this question asked of him in the police interview and his answer: "Q452. I'll tell you that this was located in the rear of the vehicle that you were in. It was in a blue backpack on the floor behind the driver's seat. Can you tell me anything about this weapon at all? A. I swear on my son's life anything, I've never seen that."
He agreed that that was a lie, saying he regretted using his son's name to lie. He also agreed that he lied when he told the police that if he knew what the weapon was going to be used for, he would have told them.
These lies were told in the interview with the police before the point in the interview where Tamapua, according to his evidence, decided to tell the truth. He stated at one stage in the interview that he was worried about his son's safety. He said that was not a lie. He was then referred to his answer that the guys were "big, big fuckin' people", and it was put to him that he was going on to make up an "even more elaborate story" about the people he was dealing with. He responded, "When you find out one of the boy's connections knows the Bandidos, wouldn't you be scared?"
In the context of his interview with the police in relation to the Miller pools incident, he told the police that "the boss" was a John Bishop. It was put to him that he just "threw that name in out of nowhere" to put the police off the scent. He denied it. He referred to his statement to the police that he went to the Miller pools because Sonny was screaming, "Help, Tera please come down, I'm in the pools, I'm going to get this and that" and that Sonny told him they were going to kill him.
Tamapua was referred to his statement in the police interview that the United Brothers had 400 members in gaol. He said that was what he was told and denied that he made it up. He stated that Bishop was trying to impress him by saying how many members they had in their group. He was referred to his statement that the United Brothers had "spread like roaches". It was put to him that he was making this up and he denied it.
He then said that there were two periods in the interview where he told the truth. He said, referring to the portion of the interview in which he was asked questions and told lies, that he had not "given them anything about the jobs of Burgess and Warwick Farm, Lakemba and Ashcroft yet". He was then referred to answers he gave that "these people" (the United Brothers) killed people, that "they've burnt a couple of houses with people in it" and they "take them to the bush and they've shot them a couple of times". It was put to him that that was "just a pack of rubbish" he was telling the police and he agreed, saying that he was starting to get to the point where he just admitted to everything. He said he told the police all that rubbish to make those guys sound dangerous, which they were.
He was then referred to his statement to the police that Mr Burgess worked for the Rebels.
It was then put to him that he was suggesting to the police that the Burgess job had something to do with the rivalry between the Rebels and the Bandidos. He said he assumed that was what it was for. He was then asked the following questions by reference to answers he gave in the police interview: "Q 'Q800. Is that how they get in? What happened that night? A. The trigger man is John Bishop. Q801. Yeah. A. He does the killing, understand? Q802. Yeah. A. John Bishop's' - words missing - 'he takes it.' Now just pausing there. The trigger man, the trigger man isn't John Bishop, is he? A. No. Q. Well why did you say, 'The trigger man is John Bishop'? A. I got mixed up that day. Q. You got mixed up? A. Well there was so many things, it was the first day I got arrested. So many things running through my mind. Q. Absolutely. 'Q803. Mmm. A. He gathers his boys, he goes down, youse know what the rest happened.' Now that's a reference to Lurnea, isn't it? A. Yes. Q. What you're saying there is that John Bishop gathered his boys and John Bishop and his boys went down to Lurnea, that's what you're saying isn't it? A. That's what it says, yes. Q. That's just rubbish isn't it? A. Yes. Q. 'Q804. Who was there that night? A. (No audible reply). Q805. So you were there that night? A. (No audible reply). Q806. So how do you know what happened that night? A. I know he was, I know, I know exactly he was supposed to do it.' That again is a reference to John Bishop, isn't it? A. Well, it doesn't say his name there so I can't remember who I was referring to. Q. You've just been referring to John Bishop being the trigger man, correct? A. I just answered your question. John Bishop wasn't the trigger man. Q. You just made reference at 803 to him gathering his boys and him going down? A. And I just said to you that was bullshit. Q. And then at 806: 'Q806. So how do you know what happened that night? A. I know he was, I know, I know exactly he was supposed to do it.' That was rubbish as well, wasn't it? A. Yes. Q. 'Q807. He was supposed to do it? A. But I'm giving information youse got to give me something.' What did you mean by that? A. What do you reckon it means? Q. I'm asking you. What do you-- A. You know exactly what it means so why are you asking me? HIS HONOUR Q. Mr Tamapua, just answer the question please? A. It means give me something, like money or whatever they can offer. Q. 'Q808. I can't give you anything in an interview, I'm going, this is what I'm going to do Tera, listen to me for a second. I'm going to suspend the interview for a minute. I'm going to go and get you some tissues and so you can just have a break for a minute.' Again you're crying, is that right? A. Of course. Q. Well that's all fake isn't it? You're just making that up. You're just crying-- A. You can't say - if you were sitting in my position you wouldn't be standing there going oh, ask me anything you want. It would be running in your head: What about my family? What about this danger I'm putting my family in? That's what was running through my head. I'm not sitting there crying because I want to tell bullshit. I was sitting there crying because I'm putting my family in danger. Plus I'm giving all these boys up and myself. I'm going away for a long time so what else do you want me to do? Q. I'm suggesting to you you're crying merely as a put on, a try on? A. No. I'm crying because I'm not going to see my son for a long time. Do you understand? Q. 'Q809. I will sort her out right now, give me a minute.' There's a reference to whether or not you could call your wife of [sic] your missus as you describe it. 'Q809. I will sort her out right now, give me a minute, I'm going to suspend the interview. I'm just going to go? A. If youse want information guarantee something for me at least.' So you're trying there to do a deal, is that right? A. Yes. Q. To get yourself released is; that right? A. Yes. Q. So the next step is, I suggest, you're going to make up some elaborate story; is that right? A. No."
Tamapua then told the police in the interview that he came forward because Jacob Burgess was a mate of his. He gave this evidence: "Q. 'Q824. OK. A. I was going to come forward, I was going to come forward and tell youse because as soon as I see my mate's face on the news I was going to come forward. Q825. And who's your mate? A. Jacob.' That was a reference to Jacob Burgess. Wasn't it? A. Yes. Q. 'Q826. Jacob. And when you say Jacob, is that Jacob Burgess? A. (No audible reply). Q827. OK. Do you want to talk about Jacob Burgess or are we going to talk about last night and clear up a couple of things about that? A. Yeah. Q828. And then we'll move on to Jacob? A. Yes. Q829. Is that all right are you? A. Yes.' Pausing there. Am I right in thinking or understanding that you were telling the police that you were a friend of Jacob Burgess? A. Yes, but I wasn't. Q. Why would you tell them that? A. Because I've known him through court. I've seen him through Liverpool cause I hang around in Liverpool. Q. You said that you saw him once at Liverpool Court? A. No, I seen him around and at Liverpool Court. Q. You've seen around as well as at Liverpool Court? A. That's what I said. Q. Mr Tamapua, why would you suggest to the police that you were a personal friend of Jacob Burgess? A. Just to make myself feel good."
He was then asked some questions concerning his statement to the police that the United Brotherhood showed new members everything, and the fact that he told the police that included "bazookas, grenades, guns, this, that". He agreed he exaggerated with the bazookas and grenades as he was trying to give himself "a good name". He was then asked some questions about him and Jacob Burgess being good mates: "Q. A bit like you and Jacob Burgess were good mates, the same way it made you feel good there? A. No, we are not good mates, we are not even mates. Q. Are you sure about that? A. Yes. Q. Because, if you were good mates with Jacob Burgess that would suggest you knew where he lived? A. No. Q. If he was a good mate of yours, you wouldn't know where he lived? A. I just said he is not a good mate or a mate. Q. You told the police he was, didn't you? A. I lied about that, about him being my mate. Q. But you said that to the police more than once? A. Yes. Q. So the second time you said it, that was a lie as well? A. Yes. Q. Why did you lie about that, the second time? A. Because I just wanted them to feel like I'm doing a good thing by saying, 'he's my mate' and I'm willing to, you know, tell them the truth. Q. So you were trying to influence the police to look favourably upon you, is that right? A. Yes. Q. Have you got page 79 in your first ERISP? A. Yes. Q. You can see there we dealt with question 928, your answer with the bazookas et cetera, yes? A. Yes. Q. Question 929, the question was: 'Q. And where's that at, John's house? A. No, he gets, bring down in Suburu, a black Suburu. Q. Yeah? A. In the back of the boot. Q. Mmm-mmm? A. And whoever's joint. Q. Mmm-mmm? A. They stand behind that and they open the boot and they start explaining what's going to happen if this and that, if you start talking this and that, this is going to come to you, this is going to blow you up, this, that's, this is why I'm so scared.' That was all rubbish, wasn't it? A. Yes. Q. So, as at the top of page 80, question 932, we haven't got to that part of the record of interview where you tell the police the entire truth, is that right? A. Well, at that time I was pretty much everywhere in my head, so I pretty much just said what is written right there. Q. You were making it up as you went along? A. Pretty much, yes."
Tamapua admitted that he lied when he told the police that the boys were "forced" to do the job at Ashcroft. He agreed that he told the police that there was a job at Ashcroft where Harry was present and stated that was a mistake. He agreed that Bishop was not very happy about the result of the Ashcroft job. He was again asked and stated it was a lie that he knew Jacob Burgess.
Tamapua was cross-examined without objection concerning a comment that Detective Cragg made during the course of the interview that "I know you know the Burgess boys". He responded that he did not know why she said it, because he did not know the Burgess boys. He said he did not know why he did not tell Detective Cragg that. It was put to him that he knew them but he denied it. It was then suggested to him that if he knew them, there was a strong likelihood that he knew where they lived. He stated that he did not even know where they lived.
Tamapua was asked about some answers he gave to the police concerning the reason he went to Beanie Boy's house. He told the police he did not know he was going to Lurnea, and that he went to Beanie Boy's house because a man named William reported to John (Bishop) that Beanie was stealing ice and pounds of weed and Bishop told him to shut Beanie Boy down. He agreed in his evidence that he was lying because he wanted to distance himself from the Warwick Farm home invasion. He admitted that "Beanie's job" was not Bishop's but was his.
Tamapua was referred to the following questions and answers in his police interview: "Q1603. Yeah. A. They picked me up there. As soon as I hopped in Bishop's turned around and goes, Did you hear the good news, and I said, What, he goes, The guy is dead. Q1604. Mmm. A. And I'm just, my heart just dropped like. Q1605. You know the Burgess boys-- A. Yes. Q1606 --don't you? And how do you know the Burgess boys? A. Through Azletts. Q1607. Through the Azletts, yeah. A. Yeah. Q1608. And so you've known them for quite some time then haven't you? A. Yeah, quite some time. …. Q1610. Yeah. But you know who they are-- A. Yeah. Q1611 --and you know that they live-- 15 A. As soon as I seen Jacob on the news-- Q1612. Mmm Mmm. A. --I've dropped, my face just dropped like, that's my mate-- Q1613. Mmm. A. --that these guys-- Q1614. Mmm."
It was put to him that once again he was claiming not only knowledge of Jacob Burgess but claiming to be his mate and he agreed. He said he did so to make his story sound good.
Tamapua was cross-examined on his statement in his second police interview of 22 July 2010. In that context he gave these two answers to the police at the interview: "Q. … Who is (deleted)? A. That's the one I'm really scared of, because he, when I first met him he told me knows Uncle Sam, like King Cross boys, he used to roll with them, and his brother was the sergeant at arms with Bandidos. His name is, they call him (deleted), they caught, he came down at the shop on Wednesday, I think Wednesday night, he came down, when we first opened the shop and Ricky seen the sergeant of arms of Bandidos in that shop. I've never seen him, but Ricky said he has seen him there. So that's why I'm worried about this bloke, (deleted). Q. Ah hmm. A. Like, John, John is, the main thing he, because he's in the Bandidos, the main thing was, his role is the money, he's the one that does the frauds. Like he's got a key where he can go to the rich flats, like, you know, those big flats, nice brand new flats, and they use that key to get into people's mail box and they look for Westpac, Westpac statements, that's the main thing they go for, Westpac statements. Every Westpac statement you can pull 10 grand out of it, and the most I've seen him pull out was 50 out of this guy's, he was working for Westpac and he pulled out 50 out of his bank. That's how he got his cars, the green Holden SS he's got, the BMW convertible he's got and the Subaru STI, brand new one."
It was put to Tamapua that he made this story up and he denied it. He insisted that Bishop was undertaking computer fraud.
Tamapua ultimately agreed that he had known Bishop for less than a week at the time he was arrested.
He was referred to his third police interview of 11 August 2010. After being referred to some questions in that interview, he agreed that as at 11 August 2010 he was not quite sure what the United Brotherhood organisation was called. He insisted during the course of being asked questions concerning what he said at that interview that Bishop was not a small-time drug dealer, as he would not have joined him if that were the case.
Tamapua was referred to a series of answers he gave during the course of his police interview of 11 August 2010 concerning the events of the evening of 1 July. It should be noted that the answers that he gave to the police were consistent with the evidence which he gave in chief, with the exception that he added in that interview that Scheck's cousin confirmed that Jacob had a shotgun. He then agreed he had been drinking that night but said that he was not drunk. He was referred in that context to his answer in the police interview that he was "pretty drunk" at the Chester Hill Hotel. He agreed that he told police that when he got drunk he tended to lose control if someone pissed him off.
Tamapua was referred to his statement in his interview that Sonny had smuggled a handbag into the van from the Burgess household which was taken back to his house. He agreed that his evidence was that all property taken from the jobs was surrendered to Bishop. He was asked whether the reason that the bag came back to his house was because he was the one who was orchestrating the jobs. He denied that.
He was asked about an answer he gave to Detective Cragg about what occurred when they returned to the compound after the Burgess murder: "A. … And we followed that back to the compound and we sat down and Walid's turned around to Bishop and said, These boys look like they're ready for the big jobs and I've looked and I've, yeah, like the big money he said, like the big, big job, meaning big money so I asked him what job was one, he said, There's one for 150 thousand, there's one for 1 million, big bag."
It was ultimately put to him after reference to a number of other questions and answers in the police interview that he was creating a story for the police. It was not, however, precisely put to him that the answers he gave concerning the "big jobs" were lies.
Tamapua was referred to the fact that it was only in his third interview of 11 August that he mentioned that Bishop had a black pistol. He denied he made that up. It was put to him that Bishop never asked him to leave the machete at Villawood and he denied that. It was put to him that Bishop did not say anything to him about the Burgess killing and he denied that. It was also put to him that he never told the police the truth in any of his interviews. He denied that.
Tamapua was again referred to the evidence he gave before a magistrate at Campbelltown Local Court in committal proceedings in respect of an armed robbery charge against his cousin. He agreed that in those proceedings he denied that his cousin was involved in an armed robbery. He said that what he told the police to the contrary was truthful, but that when they played the tape of that in Court he decided to deny it, because he could not look at his cousin's face and go against him.
Tamapua was then cross-examined by counsel for Karimi.
Tamapua agreed that when he was 15, he robbed and assaulted a young Asian boy near Cabramatta High School. He agreed that he was put on probation as a result. He also admitted that he committed other offences when he was 15 and a domestic violence offence in December 2009. He agreed that the offence of perjury arising out of the committal proceedings for his cousin occurred after his arrest in July 2010.
Tamapua agreed that in his interview of 4 July he told police that 15 Lebanese people with guns arrived at Kevin's house, that being the time he first met Bishop. He agreed that was untrue. He agreed that in his second interview he said there were at least six or seven Lebanese people with Bishop, and that there was no mention of guns in that interview.
It was suggested to him that before he met up with Bishop and Scheck, he was accustomed to supplying his personal machete, knives, replica pistols, sawn-off .303 and an assortment of other weapons to his "boys". He agreed. However, he stated that the person who had a firearm on the day he met with Scheck and Bishop was Scheck.
It was put to Tamapua that he was the person who told his crew to do the Lakemba job and he denied it. It was also suggested to him that Scheck was not present when there was any conversation about a Desert Eagle or other guns and paying the price for the guns. He also denied that. It was also put to him that Scheck was not in the car at the Lakemba job, and he said that he was, and that Scheck gave the gun to Ricky.
Tamapua was again asked about his evidence that he, Scheck and Bishop decided who was going to run into the houses. It was put to him that that was not true because according to what he told the police, he was the one to set up an initiation. He said that was for the Warwick Farm job and agreed that he was the one who decided what was going to happen at Warwick Farm. It was put to Tamapua that Scheck took no part in the conversation, and he said that Scheck turned to Bishop and asked, "Do you want us to do the Jacob job?" He agreed that Scheck never said anything about initiations. He agreed that there was no input from Scheck in relation to the Beanie Boy job but that Bishop gave the "green light" to do it. He denied that the fact that he may have been drunk that night affected his recollection but agreed that he was confused about who he sent in to do the Beanie Boy job. He said that when the police recorded that he said in his interview that the white car was at the Beanie Boy job, the police must have been confused. It was put to him that he did not see a Toyota Yaris that night, and he said that he did and that he was in it with Scheck. He denied that he pointed out Burgess' house.
It was put to Tamapua that during the time he was in the cells, Scheck asked him, "Did you know the one that is dead?" and that he said "Yeah", and that Scheck then asked him "Yeah, is he your mate?" and he said "Huh?" and Scheck asked "Is he your mate?" and he replied "No. Why?" He said he must have said "yes" because he had seen his brother on the news.
Tamapua was referred to his evidence that the Burgess mobile phone was given to him when he got back to the house. He denied that was untrue. He was referred to his earlier evidence where he stated, "There was a handbag and a Jim Beam case, like Jim Beam, and a few cannabis and stuff like that. And there was a mobile phone which I had". However, notwithstanding that answer, he maintained that he did not see the mobile phone in the shop. He was asked why he lied to the police when he said he saw the phone coming out of the handbag which was stolen from the Burgess house. He said he did not know why he needed to tell that lie.
Later in the cross-examination he admitted contrary to his early evidence that he was involved in drug dealing.
He was asked further in cross-examination by counsel for Mir about lies that he told the police. He agreed again that early in his first interview what he told the police was all lies, and that even after he made a conscious decision to start telling the truth, there were points during the course of subsequent questions when he would decide to tell a lie and then would go back to telling the truth when it suited him. He agreed that he was in control in the sense that he could determine when to tell the truth or when it suited him to tell a lie. It was put to him in that context that in an unguarded moment during the telephone intercept when he was speaking to Karimi on 2 July, he told the truth when he said he did not know who Mack was. He responded to this by saying, "I just met him that night. Of course I'm going to ask him, 'Who's that?'". It was not disputed, however, that Tamapua met Mack at the Chester Hill Hotel.
In re-examination, he was referred to the proposition put to him in cross-examination that the fact he left Scheck out as a participant in the Ashcroft job in his police interview of August 2010 was inconsistent with his evidence at the trial. It was pointed out to him that later in that interview he said Scheck was there.

p Detective Leading Senior Constable Russell Watson

Detective Leading Senior Constable Watson was attached to the Fingerprint Section at Police Headquarters at Parramatta. There was tendered through him evidence of the fingerprints of various persons involved in the incidents the subject of the charges. He stated that there were no prints identified at the house in Lurnea which belonged to any person who had been charged by the police for what happened at Lurnea. He also identified prints taken from the shop which were consistent with those of Walsh, Tuki, Vergara, Karimi and the applicant.
He gave evidence that on 7 July 2010 he examined the maroon Toyota Tarago. He identified the fingerprints of MA and Ramos on the Tarago. He was also referred to a Jim Beam tin which was seized at the shop, on which he had identified the thumbprints of the deceased and Karimi, and the fingerprint of the applicant.

q Senior Constable Matthew Campbell

Senior Constable Campbell gave evidence of various forensic examinations undertaken at the crime scene at Lurnea. He also gave evidence of an examination he undertook at the shop on the morning of 6 July 2010, and an examination of the maroon Tarago which took place on 9 July. He gave evidence that 12 swabs for the purpose of DNA investigation were taken from the Tarago. He also gave evidence that he took further swabs from the Toyota Echo.

r Witness A

Witness A said that as at early July 2010 she had been in a relationship with Tamapua for about five years. She said she was living at Claymore with Tamapua, her son and Kraak.
Witness A said she recalled being picked up from her mother's house by Tamapua at about 2.00 am on the morning of 30 June. She said that Dosh (Ramos) was driving the car and that Blackie (MA) and CJ were in the vehicle as well. She described the van as a maroon Tarago.
Witness A said that later that day, she and Tamapua got on the train and saw Sonny (Byquar) at Ingleburn or Minto. She said that Tamapua told him to come to Cabramatta, she and Tamapua jumped off the train at Glenfield, Sonny came to Glenfield and they all went to Cabramatta.
Witness A said that when they got to Cabramatta she went to her mother's place and then met Tamapua and Kraak at Villawood. She stated that they ended up at Chester Hill. She said that she met Aimee (Walsh) at the shop, who asked her to go with her to collect cleaning materials.
Witness A said that Tamapua introduced Aimee to her as "Bishop's missus Aimee". She said that the introduction took place before she went into the shop. She said that after they were introduced, she and Aimee went to buy the cleaning supplies and walked past the kebab shop. She then referred to a fight, which was the incident which took place at the kebab shop to which I have referred at [190] above. She said that "a whole bunch" of boys came down. She said she did not see everyone, but that Bishop, Scheck (Karimi), Mack (Mir), Tera, Toby (Kraak), Ricky (Vergara) and Sonny (Byquar) were all there. She said that they were all in the fight and all ran out of the kebab shop and ran back down.
Witness A said that they then went back to the compound. She said she travelled back in Aimee's car, a green Commodore. She said that Tamapua was in the car with them whilst Bishop was in Wally's car.
Witness A said that when they arrived at the compound "there was a bonfire thing they were doing", and that Tamapua, her brother, Bishop, and Aimee all went back to the shop. She said she stayed at the compound and that when the others returned, they told her that the police were at the shop and that her brother had been arrested. She said that everyone was talking and laughing and that "Aimee went to the toilet, came near the hallway cupboard, brought out a gun and they started to play with the gun". She described the gun as "like the country western guns. It was white, white and silver".
She was asked who she was referring to when she said that "everyone was laughing and playing around with the gun", and she said she was referring to Scheck, Wally, Bishop, Tamapua, herself, Toby, Sonny, Aimee and Mack. She said she did not go to the shop at all that night.
She said that Dosh (Ramos) later drove them home in the Tarago.
Witness A was then referred to the events of 1 July 2010. She said that they went to the shop on the afternoon of 1 July. She said that Tamapua told her to help Aimee clean. She said she went to the shop with Tamapua, Ricky, Toby and Sonny. She said that when they arrived, Bishop, Scheck and Mack were there.
Witness A said that she and Aimee went to get petrol for Wally's car. She said that when they returned to the shop the only persons there were Bishop and Ricky. She then said that "they came back from the pub". She said that Tamapua was drunk and that she, Aimee and Ricky then left because Aimee "had to get weed or something for Bishop from the compound". She said that by the time she got back to the shop everyone else had left.
Witness A said that before she, Aimee and Ricky left the shop for the compound she heard a conversation about "jobs". She stated that Tamapua was talking about "doing a house in Warwick Farm" and Scheck was talking about a house in Lurnea. She said she recalled that it was said that there was a job in Lurnea and a job in Warwick Farm. She was asked whether anyone said anything further about what the jobs were, and she said that there was supposed to be "coke, ice and 15 grand". She said that was what Scheck was saying to Bishop. She said she recalled Bishop saying that he needed the money.
Witness A volunteered that the gun was not at the shop but was at the compound. She said that there were "all types of knives" at the shop.
She said that when she, Aimee and Ricky returned to the shop only Bishop was there, but that "about 10 minutes later everybody rocked back up and that's when we seen the blood and everything". When she said "everyone", she said she was referring to Tamapua, Toby, Scheck, Mack and Tomasi. She said that Tomasi had a stab wound in his shoulder. She said she recalled that there was talk about having to take Tomasi to Bankstown Hospital "because he got jumped and stabbed" and that "nobody could go to Liverpool Hospital, it was too suss". She said that after that, Dosh and Ricky took Tomasi to Bankstown Hospital, and then they came back.
Witness A said whilst she was up the shop there was a Jim Beam tin and a school laptop. She said that Bishop picked it up. She said that Aimee saw an ID and cut it up. She said that the ID had a picture of an old man. She said that Wally came over, and that Wally and Bishop were standing next to each other. She said that Tamapua was standing on the other side with Scheck and Mack. She said that everyone was told to lay low and keep their mouths shut.
She stated that it was Wally who said that everybody had to lay low.
She was then asked what happened next, and she said she was scared. She recalled that they all jumped into cars. She said that Bishop went into Wally's car while she, Tamapua, Aimee and Ricky went in the green car and the rest went through the back of the shop into Dosh's van. She said that everyone went to the compound but that they all ended up going home five minutes later.
Witness A was asked about the contents of the Jim Beam tin. She said she thought that there were two sticks of weed and a little bit of money in it. She said she saw that after Bishop opened the tin.
Witness A said that the next day she went to her mother's house, and Tamapua rang her and told her to meet him at Villawood. She said that she arrived at Villawood Station at about 6.30 or 7.00 pm that night. She said that she met Tamapua and Kraak at the station and they went to the compound. She said that when they arrived, Scheck, Mack, Bishop, Tamapua, Toby, Sonny and Aimee were there. She said that Bishop looked on the laptop and typed in for the news, and that that was when they saw that Burgess had died. She said that Bishop and Wally, who she stated was also there, told them they had to "shut up" and that nobody was to talk about it.
Witness A said that in the early hours of the morning on the day Tamapua was arrested he got a phone call saying that "Sonny got jumped at PCYC at Miller". She said that he then left but that at some stage later "some guy calling himself John, John", kept calling her phone. She stated she had no idea who that was. She said that he kept saying, "Tera's been arrested, Tera's been arrested". She said she rang Liverpool Police Station and found out that he had been arrested.
Witness A stated that Tamapua used her phone a lot. She said that he only got a new phone two days earlier, but that it got taken from him in custody. She stated that Bishop gave him that phone two days before he got arrested. Before that they only had one phone.
In cross-examination by counsel for the applicant, Witness A stated that she did not have a good recollection of the events leading up to the Lurnea incident anymore.
Witness A agreed that she made her statement to the police on 11 July 2010. She said that most of the statement was accurate. However, she agreed that she told one lie about Bishop threatening her. She agreed that she told that lie because she wanted to have Bishop arrested. It was put to her that that was because Tamapua had told her that Bishop was dangerous, but she said it was not just that, as she had seen him with guns and his best friend, Wally, told her that they drove around with guns in the car. She said that she was scared and that she was still scared. She said that Wally also told her that he did time in gaol for murder and manslaughter. However, her subsequent evidence on this topic did not make it clear whether in giving this evidence she was referring to Bishop or to Wally. In that context she gave this evidence: "A. I don't remember anything of that. All I remember, one night we were all in the compound and Wally was talking. He was saying that he did time in gaol for manslaughter and murder. He was saying that he had guns in the back of his car and he used to drive around with them. Q. This was Wally telling you? A. Yes, and telling he was friends with Bishop and Bishop wasn't easy, he was scary too."
Witness A said that she did not know about Tamapua's criminal history until about two weeks before the Lurnea murder. She said she became aware when the Department of Community Services were making inquiries about the welfare of her child. She also stated that she found out about Kraak's involvement in criminal activity on the same day.
She subsequently stated that she knew Tamapua was involved in criminal activities back in May, saying that if she told him to stop she got bashed. She agreed that she was frightened of Tamapua. She also agreed that by May or June 2010 she knew that virtually everybody who came to her house was involved in criminal activities, stating that if she had said anything, they would all watch her get bashed by Tamapua.
It was put to Witness A that she had been speaking to Tamapua about the events which had occurred and she denied it. She also denied that after Tamapua was arrested she telephoned Kraak to warn him that the house was going to be raided. She stated that when Tamapua got arrested, she was "hanging around the police station back and forwards for about 24 hours or something". She said that she did not know anything about a raid until she went to her mother's house and her younger brother had told her mother that when he was there the police had raided the house. She denied that she ever had a discussion with anybody about getting rid of a phone. However, she admitted that she had a discussion with Kraak about him hiding a phone, stating that he hid a phone behind the back fence.
She was asked about her description of the gun she saw at the compound (see [284] above). It was put to her there was no such gun and she rejected this, saying she was "not blind".
It was put to Witness A that she did not know who went to Lurnea because she was not there at the time those who went there left the shop. She agreed that anything she knew about what happened at Lurnea was because of what she was told. She stated that Sonny told her what happened when they got back to the house at Claymore early in the morning. She said that all Tamapua basically said was that it "went wrong". She then gave the following evidence: "Q. When was that? A. That was the same as Sonny, like that night when we got back home. Q. And was that the night that you realised, or the morning that you realised that there was a phone in your house that didn't belong? A. I didn't know about the phone until after Tera got arrested. I didn't know about no phone until Tera got arrested. Q. And that was when Toby told you? A. Yeah. Q. And did Toby tell you where the phone was from? A. No. He just told me he'd found it, but I didn't know where he'd found it from. Q. Your clear or distinct memory in that five to ten minutes before you went off to the compound with Aimee - this is when you were at the shop? A. Yes. Q. And the boys returned from the pub? A. Yes. Q. In that five to ten minutes your clear memory is that the word 'Lurnea' was used, was it? A. Tera was talking about a job in Warwick Farm and Scheck was talking about a job in Lurnea. Q. Your clear memory was that the word 'Lurnea' was used; is that right? A. Yes. Q. Couldn't have been wrong about that? A. No. Q. When you told or spoke to the police on 11 July 2010 you were aware of a job being discussed in relation to Lurnea, correct? A. Yes. Q. And a job being discussed in relation to Warwick Farm, correct? A. Yes. Q. And the Warwick Farm job was a job which you say Tera raised, correct? A. Yes. Q. And when did you first tell the police about the Warwick Farm job? A. Not too sure if I even did mention it. Q. I beg-- A. As soon as Tera got arrested and got to speak to the detective, that was it, I told them everything I knew about Kesley. But I don't even remember if I did say anything about the Warwick Farm job or not. Q. Well assuming that you didn't ever tell the police about the Warwick Farm job, why did you tell the police about the Warwick Farm [sic] job? A. I was thinking about a man that just lost his life, that's all I cared about at the time and that's still all I care about now. Q. So you weren't covering up for Tamapua? A. No, I told him straight: He gets what he deserves."
Witness A was cross-examined about the calls to which I have referred at [297] above (the John John calls). In that context she gave this evidence: "Q. Something happens which leads you to ring Liverpool Police Station; is that right? A. Yes. Q. What was it that happened? A. Something happened where Sonny got into a fight at Liverpool/Miller PCYC and then this 'John John' guy is calling Tera. He left and then 'John John' called me and said, 'Tera's been locked up, Tera's been locked up.' So I called Liverpool Police Station and they said yeah, he was arrested. Q. And that was the last time you heard from 'John John'? A. Yep, he never called back. Q. He never called back? A. No. Q. Of course, he called you, that is, 'John John' called you on your phone the one ending in 185? A. Yes. Q. You then called Liverpool Police Station; is that right? A. Yep. Q. Because you had heard from 'John John' that Tera had been locked up? A. Yep. … Q. At that stage, you were unaware why he'd been locked up? A. No, I didn't know. … Q. You rang Liverpool police for a particular reason? A. Just to find out if it was true. It wasn't the first time I've had a prank. I've had a couple of pranks before saying Tera's been locked up, so I always ended up calling the police station and just asking them. … Q. When you rang, you were told by somebody at Liverpool Police Station that Mr Tamapua was in custody? A. Yep. Q. And when you found out he was in custody, were you also told that Mr Tuki or Ray was in custody? A. Yes. Q. And you passed that information on? A. Kayla found that out for herself. I passed my phone over to Kayla because she asked about her own boyfriend. I didn't know his details, it's got nothing to do with me. Q. You and Kayla then did what? A. I tried to make some phone calls to see if I could get a lift to the station or at least to Liverpool Police Station or train station. Couldn't get no-one, it was about three something in the morning. We walked from Claymore down to Campbelltown train station, sat there and waited for a train to Liverpool. … Q. What time did you leave Liverpool Police Station? A. First, I went about seven in the morning, came back because I wanted to go tell my mum Tera was arrested. Come back about nine, left again at 12, come back. I was back and forwards all that day. Q. So when you left Liverpool Police Station for the first time on 4 July, where did you go? A. I went to my mum's. … Q. Then you came back to Liverpool Police Station about what time? A. About nine."
It was put to her that while she was at the police station she had a telephone conversation with Kraak. A transcript of the conversation was given to her and she agreed she said, "I'm at the cop shop. Oh, um, I've just been told my house is going to get raided and I have said that there's just me and Tera". She said she could not remember saying that. It was also suggested to her by reference to the phone conversation that she said, "Do you want to get some clothes and that and go see if you can stay at Tim's for a couple of days 'cause I'm going to get raided". She agreed she must have said it but said she just did not remember. She stated that no police officer ever said to her that the house was going to get raided. She said she did not know anything but that she was just saying that so he would go. She then said she remembered telling him that the house was going to get raided, but it was a lie because she did not find out until her brother told her that the house had actually been raided.
She was also referred to her statement in that phone conversation where she said, "Get that phone out". She said she did not remember why she said that. She said she did not know of any phone being brought back from the Burgess house. She said all she knew was "the laptop, the tin car thing and the two sticks and the photo ID". She agreed she was going to be Tamapua's support person but found out that was not allowed. She agreed that the plan was to go as a support person so she could find out what was going on. It was also put to her that she was then going to tell Kraak what was going on and she denied that.
Witness A was next referred to her statement in the phone conversation to Kraak, "And that's all I know but, yeah, fuck, I will message you on Facebook as soon as because Tera wants me as a support person so I will message you on Facebook when I'm out of the thing, out of the interview with them, and I'll let you know what's going on then". She said that was a lie. She was then referred to Kraak's inquiry, "What's the actual charge?" and her reply, "Don't know yet. They won't tell me. It's too serious".
Witness A was referred to an SMS message she sent to Kraak on the morning of 4 July 2010, several hours after she deleted him from her Facebook account. She agreed that the message said, "The detective just came and spoke to me and said she is gonna tell me what his charges are after she speaks to Tera but she said it's real serious". She was asked why she was sending such a message to a man with whom she was trying to disassociate herself, and she gave the following reply: "A. I didn't know if Tera was going to get out. I don't remember why I sent him the message, but all I remember is I thought Tera was going to get out that day so I had to care about who Tera cares about. I thought he was getting out. I didn't know what the charges were. I thought he was going to get bail, so I had to care about who Tera cares about."
She was asked about a text message she sent to Kraak on the afternoon of 4 July. The message was in the following terms: "Cop shop still but don't come and get clothes and go to Tim's 'cause they are asking about you to me and I said you moved out. I don't know where because DoCS already know as well and I want everything to lay low because the cops have been watching my house for a couple of weeks and watching all of us."
She was then asked these questions about the message and gave the following answers: "Q. Right. That's a message that you sent? A. Yes. Q. A man who you deleted from your Facebook account because he meant nothing to you? A. Yes, because I seen Tera at the window of the police station upstairs when he was talking and he was going like that (indicated) spelling out Toby's name, so I had to do something. Q. You were standing outside Liverpool Police Station? A. Because I was having a cigarette. Q. When you looked up and saw Mr Tamapua standing at the window signalling to you, is that right? A. Yes. Q. And he was spelling out Toby's name, is that-- A. Yes, he just said 'T-o-b-y' and that was it, with his fingers. Q. With his fingers? A. Yes. Q. How did he do that? A. He went 'T-o-b-y' (witness indicated). I don't know how he did it. Q. What floor was this on? What floor was it on? A. I was downstairs, he was upstairs at the police station. Q. I appreciate that. What floor was he on? A. I think it's level 1."
She agreed that having regard to that evidence, the text she sent to Kraak was sent at the request of Tamapua.
Witness A agreed that on 4 July she told the police that Kraak had moved out of the Claymore residence and that that was a lie.
Witness A stated that on the first night she went to the compound when the group was standing around the bonfire, she did not remember what was discussed. She stated that everyone was "just laughing and talking about the fight at the kebab shop". She could not remember any discussion about jobs or preparation for jobs.
Witness A said that she had never seen Tamapua with a machete. She stated that on the evening of 6 May 2013 (the day prior) she spoke to Tamapua on the telephone and asked him where the machete was from, and he said he kept it on him 24/7. She gave this evidence: Q. You have never seen him with a machete? A. No. I asked him about that yesterday when I finished here. Q. You asked him about that yesterday when you finished here? A. Yeah. You can check the phone records but I said to him "where was this machete" and he told me he kept it on him 24/7. You can check the phone calls, it says it has been recorded. You can check. Q. I am just going to have to take this slowly, ma'am, I'm sorry. You heard prior to yesterday or alternatively yesterday that Mr Tamapua kept a machete with him 24/7. Is that what you said? A. Yes. Q. Where did you hear that from? A. Tera yesterday on the phone because yesterday I got asked about a machete and I didn't know and when I spoke to him when I got out of Court yesterday I said to him "where's this machete from" and he told me it was his and he kept it on him 24/7. I didn't know until yesterday. Q. Who told you about the machete which gave rise to you asking Mr Tamapua? A. I got asked yesterday questions by the Crown. Q. So you contacted Mr Tamapua yesterday? A. No, he called me from the gaol after I left here. Q. To discuss aspects of this case, is that right? A. No. He called to find out how it was all going and he said did I tell the truth, I said: "Yes", and then he said: "Well, what happened" and I said: "Nothing." I said: "Well, where did this machete come from", and I was yelling at him and I was stressed out.
Witness A was taken to that portion of her evidence which I have summarised at [283] above. She agreed she was mistaken when she said that Bishop went back to the compound in Wally's car on the night of the fight at the kebab shop but that rather, it was the night of the home invasion.
Witness A was asked further questions about what happened to the proceeds of the Lurnea home invasion. She was reminded of what she told the police in her interview of 11 July 2010 to the following effect: "'Tera, Aimee, John' and there is a name that's been deleted - 'and I stayed in the shop. John picked up the Jim Beam can container and the laptop and Aimee picked all the other stuff they had got from the home invasion in a plastic bag. She took it out the front and put in the back of the green Commodore that she drives in the boot. As I left I saw that all that was in the cabinet was a sushi knife, some nail files, a set of binoculars that I put in there and there was nothing else in the cabinet.'"
She agreed that the laptop and the Jim Beam tin did not go back to her place and said she did not know if the Jim Beam tin ever left the shop. It was put to her that Bishop did not touch the laptop, but she said he did and that she did not know what happened to it.
Witness A was referred to the evidence which she had given that she had not spoken to Tamapua about the events in question: see [303] above. She stated that since he had been in gaol, they had spoken about the case but not about their evidence.
Witness A was asked about the telephone call she had with Kraak concerning the hidden phone to which I have referred at [308] above. It was put to her that she was less than keen to accept the fact that she had said, "And get that phone out, the phone that you had last night", because she was trying to hide something. She denied that, saying that she honestly could not remember saying those words. It was put to her that that was not a truthful answer and she denied that.
She was also asked again about her evidence concerning the signal she received from Tamapua whilst she was outside the Liverpool Police Station (see [312] above). She was also asked about a series of SMS messages between her and Kraak to which I have referred at [310] above. She was then cross-examined on the following statement she made to the police on 11 July: "Q. In your statement to the police on 11 July, you said at paragraph 26: 'When we got there, to Chester Hill, I went into the shop. It's a small shop, it was really dirty, there was dirt and dust everywhere, no shelves or anything, boxes and cigarette butts on the floor.' Remember saying that? A. Yes. Q. : 'There was two desk/display cabinets at the back of the store and a cash register and computer. Aimee said, 'Lucky the cops didn't get the drugs', and John said, 'Look in your bag'. Aimee grabbed like, a fake Guess bag, it had Gs on it, and was very dark brown, almost black and made of canvas. She grabbed it from the top of the glass display thing and opened it. I looked in and saw a great wad of $50 and $100 notes. I reckon there was about $8,000 there.' Remember saying that to the police? A. I remember giving my statement, I don't remember everything I said to the police but. Q. I read on: 'There was also a big bag of pot (cannabis). I would say about four or 5 ounces.' Remember saying that? A. Yes. Q. And 4 or 5 ounces of pot you say you saw, did you? A. Yeah. Q. Is that right? A. I don't know how much it was, I had a guess. I don't know how pot is. To me, an ounce is probably that big (indicated), I don't know. Q. You told the police you saw 4 or 5 ounces of pot?? A. That was my guess. Q. This is the person who was telling the police the truth; is that right? A. Yes. Q. This is also the person that said in her evidence at p 2375, line 25, 'Yeah but I don't deal with drugs, I don't even know how much a stick weighs of weed.' Is that right? A. Yes, I don't know. I had a guess when I was doing my statement with the police, I had a guess with the weed. I don't know how big is what."
Witness A was then referred to the evidence which she gave in chief concerning the Warwick Farm job. She said she could not remember if she told the police about that job. It was suggested to her that Tamapua did not mention anything about Warwick Farm at the shop. She agreed, but said it was spoken about in front of the shop. She stated she did not recall whether she was first told about it by Sonny when they returned to the Claymore house. The following passage of cross-examination then occurred: "Q. Are you sure that it wasn't a situation that Lurnea was mentioned to you by Mr Tamapua back at Claymore? A. No. Q. Are you sure it wasn't the situation that Sonny mentioned to you, Lurnea, back at Claymore? A. No. Q. Are you sure of that, are you? A. Yes. Q. Not so sure about Warwick Farm? A. I'm not too sure about Warwick Farm. But I never heard about Lurnea until after it happened. Q. Say that again? A. I never heard of that properly until after it happened. Q. You never heard about Lurnea until-- A. Never heard of it properly until after it happened. Q. You never heard of it properly until after it happened. A couple of days after Mr Burgess's unfortunate death, you went to Villawood; correct? A. Yes. Q. To meet up with Tamapua and the boys? A. Yes. Q. It's the situation that the principal reason that you went to Villawood on that occasion was to help Aimee's father move house, wasn't it? A. Yes. Q. And in fact, there was no discussion whatsoever about the demise of Mr Burgess on that occasion, was there? A. Yes, there was and that he had passed away. Q. I suggest to you that was something discussed between you and Mr Tamapua back at Claymore? A. No it wasn't. Q. You say in your evidence that at some stage at the shop, when you were talking with Aimee and avoiding the boys, and in particular Mr Tamapua, that Scheck mentioned ice and coke and $15,000? A. Yes. Q. I'm going to suggest to you that was never mentioned? A. It was mentioned. Q. You have a clear memory of hearing that, despite the fact that you were spending most of your time with Aimee, were you? A. Me and Aimee were in the front part of the shop when they got back from the pub. Q. I'm going to suggest to you it was never said? A. I know it was said. Q. And I'm going to suggest to you that the man Bishop, who you said, said to Scheck, 'Go off and do - I need some money' or words to that effect? A. Not, 'Go off and do it.' It was, 'I need some money.' Q. I'm going to suggest to you he never said that? A. It was said. Q. Because this is the same man was it, who you say you saw his girlfriend with a bag with a large amount of money in it the day before; is that right? A. Yes. Q. I'm going to suggest to you no words of that nature were ever said? A. It was said. Q. It's the situation that you've created that conversation subsequent to getting Mr Tamapua's brief, isn't it? A. No. Q. It's not a situation that you're making that up? A. No."
Witness A was cross-examined by counsel for Karimi. She gave the following answers: "Q. And apart from the occasion that you described of seeing him through a window, did you get to see him at all over the next few days? A. After the police had finished questioning him - questioning him. Q. Yes. A. Then they made me go in and speak to him for five minutes and then that's when he's told me his charge. Q. Is that the same day that were you waiting there from early in the morning or did you have to come back another day? A. I can't remember if he was held for 24 hours or 48 hours but it was at the end of the police questioning that I got to speak to him. Q. And in terms of being able to get in to question him, were you waiting at the police station or did you get a phone call from police officer like Michelle Cragg? A. What do you mean? Q. To come and see him, how did you get to come in and see him? A. To come in and see him? No, I was downstairs and she said 'You can go in for five minutes but it can't be for long.' Q. And that could have been the next day, you just don't remember? A. Yeah, I don't remember how long he was held for. Q. And did that was at Liverpool Police Station? A. Yes. Q. Did you get an opportunity to see him at any other police station? A. No."
Witness A agreed that she saw Tamapua at the correctional facility six times in July 2010, the first visit being on 17 July, and 10 times in August. She also agreed she saw him seven times in September, 13 times in October, 10 times in November and nine times in December. She agreed that Tamapua asked her a few times whether he should plead guilty or not guilty and she said it was up to him. She was referred to her evidence that following the birth of her daughter she realised that Tamapua really did not care for her and the children, but she said she kept going to see him because he told her he could go through court and get DoCS to take her kids to visit him. She stated that DoCS had closed her case when Tamapua went to gaol and that she wanted it to stay that way. She agreed that she visited Tamapua in gaol a number of times in February, March and April 2011 even though she was terrified of him. She agreed that she put in $100 a fortnight for his food in gaol. She agreed that she was so frightened of Tamapua and his ability to affect things outside the prison that she was prepared to lie about painting a rosy picture of her existence with him.
Witness A was referred in cross-examination to the evidence she gave in chief concerning the circumstances in which she was told about the death of the deceased (see [296] above). She was referred in particular to her evidence that she did not remember who said anything about the person dying. She denied that in giving that answer she was protecting someone.
She was then referred to her statement in the police interview in which she said that after Tera said, "the guy they chopped died", she was very shocked and started to cry. She agreed that in those circumstances it was Tamapua who had told her of the death of the deceased. She again denied that she was protecting Tamapua when she said she did not remember who told her. She was referred to her evidence that Bishop looked on the laptop and typed in the news and that that was when they saw he died (see [296] above). She agreed that in her police statement there was no mention of anyone looking on Google or of Bishop typing on the laptop for the news and announcing that Kesley Burgess had passed away. She said that in fact this did happen. She agreed that in the same paragraph she told a lie about being threatened by Mr Bishop. She was then asked the following questions and gave the following answers: "Q. The lie that you told about Mr Bishop in paragraph 65 was a very carefully constructed one, wasn't it? A. What do you mean by that, sorry? Q. Well, the lie about Mr Bishop threatening you in an unpleasant way involved you describing a conversation that never took place, isn't that right? A. Yes. Q. And that particularly was to serve a purpose of your own and not for the purpose of being truthful in providing information to the police, isn't that right? A. Yes. I was scared."
Witness A was asked further questions concerning her failure to tell the police about the Warwick Farm job. She said that she could not remember what it was that Tamapua had said about a house at Warwick Farm, but she said she thought it had drugs and money in it. It was first put to her that she did not hear any such conversation and she denied it. It was next put to her, somewhat inconsistently, that she deliberately left out Tamapua talking about Warwick Farm and she also denied that, saying it was a mistake.
Witness A again was referred to her statement in a phone call to Kraak where she said, "Get things organised now before it does happen". She repeated her evidence that she did not know that she was really going to get raided but that she was just lying to him. She also agreed that she told Kraak to "get the tattoo gun". She was asked, if it was "merely a tattoo gun, why was there a concern to get it out of the house in anticipation of the raid?" She responded that she did not know whether she could lose her kids over a tattoo gun or not. She denied that it was code and that she was trying to clean up evidence that might relate to what Tamapua had been doing in the previous week.
Witness A was then referred to a telephone call she had with Tamapua at 5.05 pm on 3 July 2010. She was referred to his statement, "Don't talk too much, don't talk too much on the phone", and she agreed that she understood that he did not want her to say very much on the telephone or to say too much about her movements or his. She said she did not know at that time that Mr Burgess had died. She was then cross-examined on a telephone conversation which took place between her and Tamapua at 4.09 pm on 3 July 2010. The cross-examination was as follows: "Q. Do you recognise your voice? A. Yes. Q. And that of Mr Tamapua? A. Yes. Q. Is it fair to say that in that phone call you're flustered? A. Yes, I was walking. Q. And the first thing that you wanted to tell Mr Tamapua was that 'it's gone'; isn't that right, page 1? A. Yes. Q. What is gone? A. I don't remember. Q. What about the blade on the machete, cleaned the blood? A. Sorry? Q. The blood on the machete, is that supposed to be clean? A. I didn't even know about any machete. Q. So, 'It's gone, everything's clean, babe' doesn't refer for example, to the blood on the machete? A. No. Q. Do you mean to say you had no idea in the many years that you lived with Mr Tamapua, including the comings and goings, that he had a large machete or knife contained in a sheath which he referred to as his girl? A. I don't know about that. Q. When you say 'it's gone', think back. What were you telling him was gone? A. I honestly can't remember. Q. Well was it a stash of drugs or weed, perhaps? A. No, I don't have that kind of stuff. The only time drugs were in my house was when Tera was smoking. … Q. 'It's gone', was it a reference to a gun? A. No. … Q. It's not a case that any sign of blood from the Kesley Burgess-- A. No. Q. --job was cleaned up? A. No, I wouldn't touch something like that. Q. It's not a case of clothing, for example, from the Kesley Burgess job had been got rid of; nothing like that? A. No."
Witness A was also cross-examined by counsel for Mir on that telephone conversation. She denied that she did not want to say what she was referring to because she was participating in the removal of evidence of a crime. She agreed it was purely coincidental that she had the conversation with Kraak about the house being raided and then the house was raided within two days. She denied that she knew the phone was incriminating evidence.
She was also asked about the conversation she had with Tamapua on the evening of the 33rd day of the trial (see [316] above). It was put to her, and was conceded by the Crown, that up to that time there was no mention of a machete during the course of her evidence. It was suggested to her that what she said about the machete was "a complete figment of her imagination … combined with gross dishonesty". It was also suggested to her that the fact that she had had this conversation proved that she was lying when she said that she had not discussed the evidence with Tamapua. It was ultimately put to her that the reality was that when she told the Court that she did not discuss or had not discussed her evidence with Tamapua, that simply was not true. She responded that she did not discuss evidence.
She was referred to her evidence that when the boys left the shop on the evening of 1 July, she, Aimee and Ricky were at the compound (see [288] above). In that context, she was also referred to the following statement she made to the police concerning Ricky: "I'm pretty sure he went to Lurnea with the boys because they left the shop at the same time and came back at the same time." It was put to her that that was precisely the truth, and she reiterated that Ricky went with Aimee and her to the compound and that she got "mixed up". It was then put to her and she denied that Tamapua was controlling the evidence that she was giving in Court. She said that Tamapua told her she had to tell the truth. She denied that Tamapua wanted Ricky to be "taken out of the picture" in regard to the home invasion that occurred at Lurnea. She agreed that what she told the police concerning Ricky's involvement was totally inconsistent with the evidence she gave at the trial.
In re-examination, Witness A was asked a number of questions concerning the statement she made to the police on 11 July. She was referred to her cross-examination on par (45) of that statement and that it was put to her that she left out the Warwick Farm job as one of the jobs contemplated to protect Tamapua. She was referred in that context to par (44) of her statement, in which she told police that whilst at the shop Tamapua said to Bishop, "This is my boy Tomasi". She said she did not know Tomasi.
She was referred to the fact that the statement went on to say, "Scheck then talked to John", and she agreed that she mentioned Lurnea after that. She agreed she had actually put Tamapua in "at least in introducing Tomasi to John".
She was then referred to the cross-examination which I have summarised at [323] above, and in particular to the fact that it was put to her that her evidence that Scheck mentioned ice and coke and $15,000 and that Bishop said "I need some money" was a story she created subsequent to getting Tamapua's brief. In that context, she was referred to par (45) of her police statement and the following examination took place: "Q. This is the statement, if you look at the front page, made by you on 11 July 2010? A. Yes. Q. So seven days after the arrest of Mr Tamapua? A. Yes. Q. And in that statement, if you go to paragraph 45. Do you have paragraph 45? A. Yep. Q. This is what was touched on when you were asked questions, also by Mr Wasilenia, about you had left out the Warwick Farm or whether you had deliberately done that to protect Tera. In any event, you told police in this statement on 11 July 2010, seven days after the arrest of Mr Tamapua at paragraph 45 that Scheck then started talking to John. 'He said, 'I'm gunna go and get some coke' but could only hear part of the conversation because they were a bit away from me and I was concentrating on what I was doing. Scheck said, 'I'm gunna do a job in Lurnea. I'm not going to lie to you, there is ice and coke and 15 grand at Lurnea'. John said, 'good go, I could do with some money'", and you heard Tomasi say 'I'm up for anything', is that right? A. Yes. Q. So, as far as whether you had, in seven days, it's been suggested you made that up, or the evidence you are giving in this court you made up from reading some brief of evidence given to Mr Tamapua, you deny that's the case, is that the situation? A. What do you mean? Q. You say you didn't make it up? A. I didn't make it up. Q. I show you MFI 130. You were taken to these custody records. I just want to make sure it was accurate in the transcript. Your first visit. You have told us about when Mr Tamapua was being interviewed you only managed to see them [sic] for about five minutes, is that right? A. Yes. Q. And your first visit to Mr Tamapua once he was taken into Corrective Services custody is not until 17 July 2010, is that right? A. Yes."

s Shane Kraak

Kraak gave evidence that he had been sentenced for armed robberies not related to the incidents involving the applicant. He had received a 10 per cent discount for future assistance in relation to evidence in respect of the matters charged against the applicant and his co-accused.
Kraak said that he had known Tamapua from about January 2010 and lived with him at Claymore. He said he met Ricky (Vergara) on about 27 or 28 June 2010.
Kraak gave evidence that he knew Tamapua gave "sort of protection" to a man named Kevin. He said he had been to Kevin's unit at Villawood where drugs were sold.
Kraak said he recalled that on one occasion he and Tamapua went to Kevin's house, and Kevin was having what looked like an argument with a few other people. He said that at one point, Tamapua "went over there because he thought, maybe they were trying to rip Kev off or something along those lines".
He said that at a later date he was introduced to those people as Wally, Scheck and Bishop. He then said that occurred on the same day but at a later time.
Kraak said that he next saw those people at a bedsitter in Villawood. He said he was with Tamapua, Witness A and Ricky but was not sure who else was there. He said they were sitting out in the back of the complex and there was a wheelbarrow with a fire going in it. Kraak said that he recalled Bishop asking, "What do youse do?" and that Tamapua responded, "I do protection" and he responded, "I do armed robberies".
Kraak was asked when the next occasion was that he saw those people. He stated that he could not recall dates but that he had seen them on multiple occasions, both at that location and at a shop at Chester Hill. He said that his next recollection of speaking to them was at the shop at Chester Hill. He said, "We … were basically helping pack shelves and stuff like that. And then we went to Chester Hill Tavern with members of the group. There was some drinking, they were playing poker machines, stuff like that, just hanging out at the pub". He said he had travelled to the shop by train with Tera, Witness A, a male by the name of Sonny (Byquar) and Ricky. He said that when they arrived at the shop, Bishop and Bishop's girlfriend were at the shop, as were Scheck and Ray (Tuki). He said that he, Tera, Ricky (who came later), Scheck, Ray, Sonny and another male went to the pub. He said that subsequently, he and Sonny picked up Tomasi (Natuba) at the train station and went back to the pub with him.
Kraak said the group left the pub and went back to the shop. He gave the following evidence as to what occurred: "Q. Once you're back at the shop after the pub, what happened then? A. Everyone was pretty loud, boisterous, and the groups of people just, because we were all pretty much meeting and that, they wanted to go and do some earns, like go rip off some people-- Q. Who do you recall speaking and who was present? A. There was multiple people speaking at the time. Tera was present, myself, Ricky, Scheck, Bishop, [Witness A], Mack, another male, a black haired female. It was quite crowded in there. … Q. So tell us what you recall being said? A. I remember Scheck saying that the newer people to the group had to prove themselves so we had to go do home invasion or something along those lines to prove ourselves. Q. Who did he say that to? A. He was saying it to myself, Ricky - you know, just indicating towards the people that were joining that group. Q. Anything else you recall being said? A. I cannot recall, you know, exactly who said what. Q. After that was said, do you recall saying anything to anyone at that time? A. I remember saying something along the lines of that I didn't have to prove myself to anybody. Q. Who were you talking to? A. I was directing that towards Scheck. … Q. What's the next thing you recall happening? A. After this point I remember getting a drink from the fridge. Q. Where was the fridge? A. Located at the front of the shop. Then there was - Tera was trying to organise a van to come and pick up the boys to go do some home invasions. Q. How did you know that? A. Because he asked Ricky and I was talking with Ricky at the time, 'can you get us a ride?' Q. So that's what Tera said; is that right? A. Along those lines, yes. Q. What happened then? A. Ricky got on the phone, made a couple of calls and he said to Tera that Dosh was on the way. Q. What's the next thing you recall? A. At this point there was - they were organising - Bishop and Tera were organising on who was to go and do the actual jobs along with Scheck. Q. To do that, did you hear them say things? A. I did hear certain conversations. Q. Again, doing the best you can to recall, if you could tell us who was talking and, as his Honour has said, like if you were in the shop now, the words that were used when they spoke? A. I can't remember exactly 100% which words were used. But Scheck suggested that I go and Tera said something, I can't exactly recall what he said, but Bishop said 'no, he's all right, Tera said that he's good'. Q. Anything else you recall being said? A. No, I can't really remember. Q. As to any arrangement as to who would go, did you hear anything said about who would be going? A. I can't recall exactly who said, who, you know, who had the final say on who went. But I'm assuming - I can't assume, you know what I mean. Q. I'm not asking you to assume. Did you hear any words said as to who was going? A. I know Tera, Tera went with Scheck, Dosh was the driver, then we had Mack and then the other male that I can't remember his name that was with Mack, we had Sonny and then Doonside [Natuba] as well. Q. Before anyone left, did you see any weapons at all in the place? A. Yes. Before they left, Bishop went out to the back of the shop and got some meat cleavers, there was four of them, and he brought them out to the front of the shop. At that point I grabbed one of the meat cleavers, you know, having a look at it, you know, quite a large meat clever, quite heavy, looked to be brand new, very sharp. At this point he gave them to Ray and Ray, from memory, handed them out to the people."
Kraak said that Bishop gave meat cleavers to Ray who gave one to Sonny and one to Doonside (Natuba). He said that he did not know to whom else they were given as he had taken one of them and was looking at it. He said that after he had had a look at it, he believed he passed it to Tera. He then gave evidence of the following discussions: "Q. Okay, all right. And what happened then? A. From there there was discussions on, oh, previous to that there had been a discussion on who would go, and it was then decided by Tera and Bishop on actually who left to go do the job. Q. Right. And, well, I think you told us that before the break, is that right, who was? A. Oh, I cannot - I think so, yeah. Q. Who was it that you heard being said that they would go and do the job? A. Oh, Tera and Bishop were the ones who said who was going to do the job. Q. What names did you-- A. It was, Scheck was in the car, Tera was in the car, Dosh was in the car. The people that would actually be doing the job were Sonny, Doonside, Mack, and another male, I don't really recall his name. … Q. All right. Now, as far as what was to be done, as at this night had you heard of a name of Beanie Boy? A. Yes. Q. Did you know Beanie Boy? A. Yes. Q. All right. Did you hear his name mentioned that night? A. Yes. Q. Where were you when you heard his name mentioned? A. I was with Tera. Q. Whereabouts? A. In the shop. Q. All right. And in relation to what you're saying now, about discussions about persons going out, when was it mentioned, when did you hear Tera mention Beanie Boy? A. It was mentioned - he was suggesting one place and Scheck was suggesting another place. Between the two of us, he said to me, he goes, 'What about Beanie?', and I said, 'Well, it's your call'. Q. Who said that to you? A. Tera. Q. All right. And was there any other people with you at the time Tera said that to you? A. Oh, there was quite a number of people in the shop. Q. Okay. Now, you said something about Scheck and another job. What did you hear Scheck saying? A. All I remember Scheck saying was, 'I have another address to do'. Q. Okay, all right. A. There was no, I didn't really hear any details to do with the job. That's all I heard. Q. Okay. Well, at the time he said that, did you see who he was talking to? A. No. No, I don't recall. Q. Okay. Now, in relation to the person Beanie Boy, did you do anything in relation to Beanie Boy? A. Yes."
Kraak said that after this conversation he saw Dosh, Scheck, Tamapua, Sonny, Doonside, Mack and another person leaving the shop. He said they got into a maroon coloured van.
Kraak stated that whilst he was at the shop, Tamapua rang his phone asking for William's phone number. Kraak had previously given evidence that William was a person who had supplied him and Tamapua with Beanie Boy's address. Kraak gave evidence that when the men who had left the shop returned, they opened up the roller door. He said that he remembered Tamapua coming in first and that did not seem too happy. He said that after that the rest of the boys came in in a group. He noticed that Mack was covered in a large amount of blood and that Doonside had a large amount of blood on him as well. He said that someone started talking but that he got a bit distracted when he saw all the blood on Mack and Doonside. He said everyone that who was in the Tarago came back to the shop.
Kraak said that Bishop said Doonside was losing a lot of blood and should be taken to Bankstown Hospital. He said that Bishop's girlfriend took a bag around and that anyone who had bloodied clothing was to put it inside the bag. He said that Mack took his clothes off and put them in the bag.
He said that after Doonside had been taken to hospital, a few of them got into the van. He said that Dosh was driving, Scheck was in the passenger seat and Mack, Ricky and himself and possibly someone else were there. He said that whilst they were on the trip, they were scrolling through the phone which had been taken from the Burgess' address. He said that Sonny had the phone when he first saw it.
Kraak said that Dosh drove him, Sonny and Ricky to the house at Claymore that he shared with Tamapua and Witness A. He said that Tamapua and Witness A returned early in the morning.
Kraak said he thought that the next morning he, Sonny and Ricky went to "Kev's" and from there to the compound. He said that Tamapua was somewhere else with Bishop, his girlfriend and Witness A, but he was not sure exactly where. He said that when they got inside the compound Wally asked for all their mobile phones. He said that Wally had arrived when they were there but had left before Bishop arrived back with Witness A, Tera and Bishop's girlfriend. He said that Bishop's girlfriend was driving. He said that Ray and Scheck came as well but that he did not see how they got there.
Kraak said that they were talking out the front and saying that Burgess had died, and that it was on the news. He said that Wally originally informed him, and that when Tamapua arrived he informed him as well.
Kraak said that one time when he was at the compound (although he could not remember the date), Bishop had a towel wrapped up on a couple of shelves, and he opened the towel and showed him two firearms inside it. He said that one looked like a sawn-off bolt action and the other one like a nickel-plated pistol.
Kraak was then referred to his evidence about the phone. He gave this evidence as to its disposal: "Q. Apart from seeing it in the Claymore premises, did you do anything else in relation to that phone? A. Yes, I received a call saying that the police were going to later raid the house, and was asked to clean the house up. I then persisted to grab that phone and I put it - walked out the backyard, there was a sock beside the clothesline, I put the phone inside the sock and went and stuck it underneath the palings of the neighbour's fence. Q. At some time, did you inform police of where you had put the phone? A. Yes. Q. Where was this place in relation to where you were staying at Claymore, that you put the phone? A. Straight out the back gate, turned left about 3 feet, and it was underneath one of the palings at ground level."
Kraak was referred to the fact that he described Scheck as Bishop's "right-hand man". He said that when they were first introduced to Bishop, Scheck was one of the people who came over, patted him down and searched him and that he seemed to hold favour with Bishop. He said that occurred on the night when there was the wheelbarrow with the fire in it.
Kraak gave evidence that at a time prior to the incidents of 1 July he and Tamapua had invaded Beanie Boy's home.
Kraak gave evidence about a series of robberies in which he was involved in April with Tamapua and various other people. He agreed that Tamapua would either provide locations, or someone else would give him the information and he would pass it on to the group. He said that the planning virtually all the time involved Tamapua driving to the site of the proposed home invasion with his selected crew and telling the people who were to go into the house, whilst he sat in the car awaiting the results.
Kraak thought that he may have seen Tamapua in possession of a large machete.
Kraak agreed that he was living at Claymore the day Tamapua was arrested and that there was a phone in the house which was brought there by either Sonny or Ricky. He agreed he knew that the phone belonged to the deceased. He repeated his evidence that he became aware of this on the way back from the shop at Chester Hill. He repeated that he took the phone from the lounge room, put it in a sock and placed it by the neighbour's fence underneath a paling. He said that Witness A told him to do that. He agreed he knew that the phone would be very incriminating.
Kraak was asked about the SMS he sent to Witness A on 4 July which stated, "He has not sold a thing" and her reply which stated, "And he said he has heaps of customers. Fuckin lies. Man I'm over lies". He agreed that he understood this to be in relation to the sale of drugs. It should be noted that Witness A said she had no involvement with drugs (see her evidence which I have extracted at [330] above).
Kraak was asked about the following evidence he gave at the committal proceedings: "Q. This fellow in your statement of 20 July you make a reference at paragraph 26 to Beanie Boy and you make a reference to a fellow by the name of William who was a Fijian. Remember that? A. Yes. Q. You say this: 'William is mates with Beanie Boy. A dealer in the Warwick Farm area. William had previously given us information about Beanie Boy dealing drugs and how he does it. Beanie Boy's house was one of the addresses that the crew was going to do a home invasion at. Tera was going to direct the boys to Beanie Boy's place and Scheck was directing the boys to a second address but I did not hear what that address was at the time'. I ask you this, are you saying there that there were two home invasions planned for that evening. Is that what you are saying? A. Yes. Q. You knew about those prior to anybody leaving Chester Hill address, is that what you are saying? A. Yes. Q. Are you saying, are you, that both these home invasions were discussed at the pub? A. At the pub and I think they were vaguely discussed at the shop. Q. Vaguely discussed but the principal discussions were at the pub, is that correct? A. As far as I can recall, yes."
It was put to him that the discussions referred to in that evidence were done at the pub and he stated that he could recall some conversations at the pub and some at the shop as well. He agreed that his recollection of events on that particular evening were at best hazy.
Kraak was referred to what he said to the police in his statement of 15 July 2010 concerning his first visit to the shop. In that statement he said that Bishop said, "There are some big jobs coming up with debt collecting" and that he (Bishop) "began to talk some figures like $200,000, $750,000 and a couple of $50,000 jobs".
Kraak agreed that as far as he recalled that was accurate.
Kraak stated that the first time he went to the shop he believed that they were going there to "set up some stuff". He denied that was the day of the murder. He agreed that on the evening of the Burgess killing a number of people left the shop in the Tarago and that he knew they were off to do a home invasion. He agreed that later that evening he was on the phone to Tera in respect of the whereabouts of Beanie Boy, and that as far as he was aware Tamapua was ringing him to confirm an address. He agreed that Tamapua had raised with him the possibility of doing a job on Beanie Boy.
Kraak was referred to his statement to the police of 20 July 2010 in which he stated that on the day of 1 July he was travelling on the train with Tera, Ricky and Sonny to Bishop's shop at Chester Hill. He was also referred to his statement that Sonny was making a number of calls on his mobile phone, trying to recruit additional boys for the job that was planned for that evening. Kraak said that the latter comment was a hindsight comment.
It was put to him that he knew when he was on the train going to Chester Hill that a job was going to happen that night, and he responded, "I knew they were planning to do something, but multiple times jobs had been planned and never ever happened".
Kraak was asked when he was first heard the name United Brotherhood. He said he could not exactly recall but that it was Tamapua who told him. It was put to him that Tamapua said no such thing and he disagreed with that proposition.
Kraak was asked about evidence he gave about calling William (Fiji). He agreed that Fiji was an associate of his, and also of Tamapua and Beanie Boy. He was referred to his evidence that he was present at the shop when he discussed with Tamapua a raid on Beanie Boy's house, and he agreed that subsequently, "a group of fellows hopped into the red Tarago driven by Dosh" and drove to Beanie Boy's house.
He was asked in that context whether he had regular contact with Fiji during that period of time. He said that he spoke to him a couple of times. He agreed that he contacted him to obtain Beanie Boy's address.
Kraak said he did not recall any discussion between him and Tamapua as to Beanie Boy being a target whilst he was on the train between Cabramatta and Chester Hill. He agreed that there were discussions with Tamapua and Sonny concerning various "rorts" but said that these were not necessarily going to happen that night.
It was put to Kraak that he never saw a silver or nickel-plated pistol at the compound and that he was making it up. He denied that.
It was also put to Kraak that he had no clear recollection of when he first saw the meat cleavers, and he stated that he first saw them at the shop. It was also put to him that he had no idea who handed them out, and he stated that he believed it was Ray and that Bishop gave them to Ray. He agreed that "pretty sure" meant less than 99 per cent sure.
It was then suggested to him that from time to time during the evening when he was present at the shop, Bishop would leave the shop to go off and get various product, and he said he did not recall that occurring. He agreed that once again he could not be 100 per cent sure.
He was then asked again whether he was sure that the discussions on the train and at the pub did not include the location of both the jobs (the Warwick Farm and Lurnea jobs). He said he was 100 per cent positive. He agreed that if the Lurnea job was discussed on the train he would have been present when it was discussed and that would tie him to the job. However, he said that he was willing to bet his life that the Lurnea job was not discussed on the train.
It was put to him that the Burgess job was Tamapua's job and he denied it. He stated that he had no idea why he hid the phone. He said that Witness A rang him up and told him to clean the house. He said that at that time he could have just thrown it in the bin but that he had "some sort of brain snap" and decided it that was a good idea to hide the phone. He rejected the proposition that both jobs on the night in question were Tamapua's jobs.
Kraak stated that when Witness A was asking him to "clean the house" he assumed she was asking him to "get away anything that could be incriminating". He agreed that she did not specify any particular object except for the phone.
He agreed that on 4 July he received a message from Witness A which said, "OK, just don't come to the cop shop. Lay low and I'll keep you dated [sic]". He said he understood from that that Witness A not only wanted him out of the house but effectively out of sight, and that she would tell him what was happening at the police station.
Kraak was referred to that part of a telephone call with his brother of 5 July in which he said, "My mate Tera, that I live with, looks like he's going to get 45 years". He was asked whether Tera was "still very much his mate" and he wanted to protect him, and he denied it. He was referred to his statement to his brother that Tamapua was up for two counts of conspiracy to murder, one count of murder and two counts of home invasion, and said he was making it up. He said that during the course of the conversation he was "probably stoned" and had had "very little sleep", so what he was saying did not really make much sense. He was referred to his statement to his brother that "the one that got stabbed last week" got cut up with "meat cleavers and axes and machetes". He said that was "shit talk". He said that all he ever saw was meat cleavers and that he never saw axes or machetes.
Kraak was also referred to a statement to his brother where he said, "Nah, he got cut up pretty bad. Well put it this way, they decapitated his fuckin' left wrist more or less, you know, it was only held on by a piece of skin about 2 cms big. They nearly decapitated both his fuckin' feet". He said that he made that up, including the detail about the "piece of skin 2 cms big". He stated that he vaguely remembered Natuba "saying that he spun around and swung blindly and hit the bloke in the ankle". He denied that what he said to his brother was a result of his direct knowledge.
Kraak was asked about a further telephone conversation with his brother on 5 July 2010. He said that he did not really know if he had his wits about him during that telephone conversation. He was referred to his statements in the telephone conversation that with "a bit of luck this other dickhead fuckin' gets rid of this shit for me" and "and then fuckin' I can just take the money off him". He agreed that he was talking about drugs that he was waiting for CJ to sell, and that CJ was going to give the money back to Bishop who he got the drugs off. He said he was going to leave CJ with his share of the money but that he was going to take Bishop's money off him.
Kraak was referred to the time when the group went back to the shop from the pub. He agreed that there were multiple conversations going on and stated that he was paying attention to some of them but not to others. He agreed that he took part in one conversation regarding the home invasions. He was then asked these questions and gave the following answers: "Q. You told the police off the record that it was Tera who planned the robberies that night, didn't you? A. Tera was one of the people, yes. Q. I am putting to you that what you actually said to the police was Tera was the one who planned the robberies that night? A. I cannot recall 100 percent. Q. But if you did say that, that was you telling the police that Tera was responsible for planning, isn't that right? A. He had an input into planning them, yes. Q. You didn't tell the police off the record that anyone else planned them other than Tera? A. I cannot recall the exact conversation. I am assuming I did, yes. Q. I put to you that the only person that you refer to as planning those robberies was Tera. Just answer that yes or no? A. I can't recall."
Kraak was referred to the fact that after the police interview on 5 July he was interviewed by two other police officers in an interview room, who told him that they were investigating two armed robberies. It was put to him that he saw this off the record chat as an opportunity to provide information about other crimes and persons to improve his position on sentence. He stated, "To an extent, yes". It was put to him that in that conversation he told the police officers specifically that Tera planned the robberies that night. He said he could not recall, but that had he done so it would have been true, as Tera was one of the persons planning the robberies. It was then put to him that he did not at any stage hear Scheck say, "I have another address to do". He responded, "I cannot say for his exact words but I do recall him saying I think it wasn't an address, I think it was 'I have another job to do'. I cannot recall the exact words".
It was suggested to Kraak that Tamapua owed a bolt-action firearm and he stated that to his knowledge, Tamapua did not own any firearms.
Kraak was referred to his statement of 20 July about the events that occurred on the night of the Burgess home invasion. It was pointed out to him that the statement made no mention of Scheck being there when the participants in that invasion returned to the shop. He stated that he saw Scheck coming into the shop from out the front. He denied that he deliberately painted others as having committed various acts or said various things in an endeavour to hide precisely what he was doing.
In cross-examination by counsel for Mir, Kraak agreed that he was in the same prison as Tamapua but said that there was a non-association order on them so they would only bump into each other if there was an officer walking one of them to the clinic "or something along those lines". He agreed that between 1 July and 5 July when the arrest took place he had contact with Tamapua, but described it as "very minimal". He agreed that they had an opportunity to discuss precisely what they might say about the events if they were ever asked questions about them. Kraak was referred again in cross-examination to the call with his brother on 4 July 2010. In that context he was asked these questions and gave the following answers: "Q. I just want to put a few propositions to you arising out of these statements. Firstly, when you say 'that cunt died yesterday', the way in which you referred to Mr Burgess illustrates that around that time, as we were talking earlier, you were a person lacking empathy and sensitivity to the feelings and sensibilities of other people; do you agree? A. Yes. Q. And when you say, 'I am blessed' you felt relief at that stage that you had not been arrested in relation to the death of Mr Burgess, didn't you? A. No. Q. See, you've used this term 'I was talking shit'. What I want to suggest to you is that you've been talking shit to the jury in this trial about your explanations for what you said in these telephone intercepts. That's when you've been talking shit, isn't it? A. No. Q. You then go on, and this has been read to you before by Mr Wasilenia, on page 4 where you say: 'They got one, one boy, fuckin', I know they questioned him and he didn't roll or anything so that was good. The other boy, I'm waiting on someone now. I wanted to put a person in there, I wanted to put someone in there with him.' It's quite obvious, would you agree, that what you were talking about there is you wanted someone to go in and be in a position to talk to whoever it was that was with the police to make sure that they didn't spill the beans on what happened concerning the death of Kesley Burgess; isn't that right? A. No, I was just talking shit. Q. Well, look, there's still time for you to stop talking shit, all right-- A. I'm not talking shit now. Q. There is still time for you to fess up and to say that what you were saying there means exactly what it says: You wanted to put a person in there to try and influence what was taking place between one of your mates and the police that they were with. Isn't that the case? A. No, it's not the case. Q. See, what I suggest to you is that you will sit there and lie till you're blue in the face and refuse to tell this jury the truth about what you were talking about? A. I'm telling them the truth now."
It was also put to him that if he believed it was in the interest of his self-preservation, he would be prepared to frame someone to escape culpability for murder. He responded that if circumstances arose where he had actually killed somebody, "hypothetically, which I never have, yes, I would do that". He denied that in his conversation with his brother he was making admissions that he was in fact involved in the murder of Kesley Burgess.
He was subsequently asked these questions and gave the following answers: "Q. You see what I am suggesting is that it would not be something outside the realms of what you and others such as Tera and Ricky and others who were involved in the events on the 1 July 2010, it would not be out of character for a group of you after the events of that night to put your heads together and agree on a certain interpretation or version of what took place during the home invasion of Kesley Burgess? A. There was no discussion on putting a story together on what took place on the night of Kesley Burgess's murder. … Q. You see what do you say to the proposition that you, along with others in your group very shortly after the 1 July in order to protect yourself and possibly Ricky, have agreed to implicate the person you know as Mack in this crime involving the death of Kesley Burgess, even though you are aware that he is an innocent man? A. Completely not true."

t John Unasa

Mr Unasa gave evidence that in July 2010 he was known as "John John". He affirmed that he was charged by police in relation to the Miller pools incident and with concealing information relating to the murder of the deceased. Mr Unasa gave evidence that on 3 July he met with Sonny, who had asked him "to come and join a group". He said that he, Sonny and another person whose name he thought was Ricky went to some flats in Villawood.
He said that at Villawood he met Tera and John. He described John as "apparently … the ringleader".
He recalled that at the time the news was on and that it was about a murder in Lurnea. He said that they were discussing it among themselves but that he could not recall anything said during the discussion.
Mr Unasa said that he was there "to do initiation". He said that he "had to do some kind of job to actually join the group". He said that he thought the job he had to do was a house invasion and that once he had done that he would be initiated into the group, which he was told by John and Sonny was called United Brotherhood.
Mr Unasa said that the job which he had referred to was meant to take place that day but that it did not go through. He recalled either John or Tera saying that they did not want to follow through with another job.
Mr Unasa said that he then went to the Miller pools to take part in a cultural function. He said that he did not recall making any phone calls whilst he was there, although he said he received one call.
In cross-examination, he agreed that he may have known John's (the applicant's) name because of what the police told him. He stated that John did not strike him as "the ringleader type" at first but agreed that Tamapua did.
He agreed that he told the police that Tamapua was the one talking about the home invasions and that the people there at Villawood, according to his observation, appeared to be very scared of Tamapua. He said that that included John.
In re-examination, he was referred to his interview with the police on 1 December 2010 and questions about the name of the group. He was referred to his answer that it was John and Tera who told him the name United, and also to the fact that previously in his statement he had told the police that Sonny had referred to the group as United Brotherhood.
He also stated by reference to the police interview that the people at Villawood were listening to John, and that Tera was only there to explain the group to him. Refreshing his memory from the police interview, he said that "everyone listened to him" (John), and that it was "like they were scared, except for Tera".

u Kaerin Stiff

Mr Stiff gave evidence of the home invasion which took place at his father's property on 29 June 2010. He gave evidence that the assailants were armed with a machete and what appeared to be a small handgun.
In cross-examination he was referred to the fact that he told the police that "an Asian guy" was holding a silver coloured pistol in his right hand.

v Detective Inspector Neil Hallinan

Detective Inspector Hallinan gave evidence over objection of an interview he had with Kraak on the night of 5 July 2010. He said that he recorded what Kraak told him in his notebook and he read out a number of entries. The first was "Tera - locked up the other night. Didn't go into the house. Planned the robberies". The second was "Scheck, Afghan friend of No 4, was inside car but did not go in house. Scheck knew victim. Told group that he had ice and pot at the house. Group discussed a drug rip".

w Jacob Burgess

Mr Burgess was the brother of the deceased. He gave evidence that in July 2010 he sold pot to old friends from time to time.
He said that on the night of 1 July he left the family home towards midnight and soon after received a call from the deceased's girlfriend saying his brother was dying. He returned to the house.
Mr Burgess stated that he had never seen Tamapua before seeing him in court for his sentencing proceedings. He said that he did not know Natuba, Ramos, Byquar or MA.
In cross-examination he was referred to his statement to the police of 3 July 2010 where he said, "Both Kesley and I are well known in the Lurnea area because the people we associate with or who we grew up with". Mr Burgess said that he had a large group of friends, having worked at the Crossroads Hotel for two years where his brother also worked.
Mr Burgess agreed that his brother Kesley formed an association with the head of security at the Crossroads Hotel whilst he was working there. It was put to him that the head of security was associated with the Rebels, and he denied that. He said that the Rebels used to come to the pub. He accepted that the deceased had a problem with one Rebel member over an alleged debt.

x Sergeant Andrew Sweeney

Sergeant Sweeney gave evidence concerning his investigation of the Warwick Farm home invasion and his subsequent interview with Natuba.
He said that he interviewed Natuba on 3 July 2010 and conducted a "drive-around" with him. Natuba pointed out the Chester Hill Hotel and then the shop. Natuba subsequently directed him to Union Street, Merrylands and then to Hassel Street, Merrylands and a BP Service Station. He confirmed that the pub identified by Natuba was the one from which CCTV footage was obtained.
Sergeant Sweeney confirmed that the BP Service Station was the location where the police obtained CCTV footage in relation to the Toyota Echo.
Sergeant Sweeney said that he attended the shop on 5 July and seized a black handled silver blade machete with a serrated edge.

y Mhorag Elizabeth Campbell

Ms Campbell gave certain DNA evidence. She stated that DNA consistent with that of Kesley Burgess was located on the Jim Beam tin found in the shop.

z Detective Senior Constable Daniel Schiavello

Detective Senior Constable Schiavello was referred to his statement in which he said that he commenced inquiries to identify the white vehicle that Tamapua had said was used in the commission of the offence. He noted that Tamapua told the police that the white vehicle belonged to Karimi's cousin. He stated that he conducted checks of Karimi's relatives and found that his cousin Sadequa Karimi of Merrylands owned a white Toyota Echo which matched the vehicle located on CCTV footage from the BP at Merrylands.

aa Detective Senior Constable Wayne Reeder

Detective Senior Constable Reeder gave evidence of his role in the investigations into the home invasions. Of some relevance to the present proceedings was the fact that on 29 September he executed a search warrant at a factory unit in Ingleburn. He stated that a number of items were seized during the execution of the warrant, and that during its execution he took possession of factory unit keys belonging to the applicant. He was shown photographs of what took place during the execution of the warrant and identified an officer looking at a box containing some mobile phones.
He was then referred to a photograph which showed that other officer, Detective Joyce, bringing out a bag, towel and three meat cleavers.
He also stated that Detective Joyce located a black Nokia N Series phone which was in a black Prada bag. He stated that a download was performed on the phone. On the phone were photographs of the applicant and Aimee Walsh and a photograph which showed a white laptop. He stated that the laptop was located during the search.

ba Detective Senior Constable Michelle Cragg

Detective Senior Constable Cragg gave evidence that she prepared a statement dated 11 August 2010 and signed on 18 October 2010. She agreed that it was commenced on 11 August and completed on 18 October. She was shown a copy of it and was allowed to read from it without objection.
Detective Senior Constable Cragg's statement dealt first with her involvement in the investigation into the Miller pools incident. She stated that in the early morning of 4 July, she told Tamapua that he was under arrest for conspiracy to murder and firearm offences and gave him a warning. She stated that later that morning she commenced an interview with Tamapua.
Detective Senior Constable Cragg also gave evidence of her involvement in the search of the shop on 8 July 2010 at which a number of meat cleavers were located. It is unnecessary to deal further with this search.
Detective Senior Constable Cragg confirmed that Witness A spoke briefly to her on 4 July concerning the arrest of Tamapua. She stated that Witness A did not ask to be present whilst the interview with Tamapua was taking place.
Detective Senior Constable Cragg agreed that in his interview of 4 July Tamapua told her that if he was in a position to provide information, he would do so. Another portion of the interview with Tamapua was played back to Detective Senior Constable Cragg, and she agreed that at that particular point Tamapua asked if he could be put together with Witness A. She was asked whether at that point Witness A had spoken to him and she said no.
She was asked whether she took steps during the course of the interview to give Tamapua and Witness A some private time together and she said she did not. She denied that she accommodated Tamapua's request to see Witness A.
She agreed that in the interview Tamapua said that Jacob Burgess was his mate. She said she had no reason to doubt him when he said he knew the Burgess boys. She agreed that Tamapua said that he knew the Burgess boys through a family called the Azletts, a family well-known to the police. She said that she had no reason to doubt that Tamapua knew the Burgess boys through the Azletts.

The defence case

The applicant gave evidence. He described himself as "an importer selling stuff on eBay".
The applicant admitted that when he moved to Villawood, he started dealing drugs just to "make money on the side". He said that as of June 2010 he had been dealing drugs for "probably only a month or so". He said that he sold ice and marijuana.
He said that one of his regular customers was Kevin.
So far as the shop was concerned, the applicant said that the previous proprietor, a Mr Manuel Puga, asked him if he wanted to come in and be in partnership with him. He said that about two weeks after that in early June 2010 he decided he wanted to take over the whole place by himself.
The applicant said that prior to taking over the shop he had never met Tamapua. He said he was introduced to him by Ray (Tuki) down at Kev's house. He said that took place about four or five days before the kebab shop incident at Chester Hill.
The applicant said that Ray did not say anything to him about Tamapua. He said, however, that after they left Kev's house, "Tamapua and his little mates came over to Tuki's house and that's where the bonfire at the back was actually happening". The applicant said that he was at Kev's place that particular day to give him "more products", and that "there was a little bit of shortage on the money" and that they "just went down there to sort it out". He said that the persons who went down to "sort it out" were him, Karimi and Tuki. He said that Kev ended up outside and they started talking, and Tamapua came up and thought they were "standing over him". The applicant said that they were not, but were "just having a friendly chat" and then his mate Wally "rocked up and that was it".
The applicant said that thereafter Tamapua and his mates Toby (Kraak) and Ricky (Vergara) turned up at the compound.
He said that at some stage he had a conversation with Tamapua which was "basically about Kev, about how he was coming back short on money". He said that Tamapua stated, "He's one of my guys. If you want, I can look after everything with him and offer you protection at the same time". The applicant said he indicated to Tamapua that he would accept his offer.
The applicant was then asked questions about the circumstances leading to the incident the subject of count 1. He agreed that he was aware that Mr Bertolli kept guns at his premises, although he said that he had not seen Mr Bertolli for a number of years.
The applicant said that on the day after their first meeting, Tamapua again came to see him accompanied by Ricky. He said that nothing was really discussed at all. He said, however, that on that evening he drove to Lakemba to source drugs in the company of Tamapua, Ray, Ricky and Aimee. He said that as they were driving to a servo near Mr Bertolli's house, he pointed out the house and said he had had a good relationship with him and that he (Mr Bertolli) was going to take him to a shooting range and that he (the applicant) was going to get a licence. He said he described the weapons that Mr Bertolli had as being a Desert Eagle and a Beretta "and that was it".
He said that he then picked up his drugs and they went back home. He said that when they got back to his house Tamapua asked if he could supply ice to him to sell.
The applicant said that he recalled an occasion shortly after becoming associated with Tamapua and after he went to Lakemba where a group of Tamapua's friends came to his house. He described it as "a normal thing" and that they came to Ray's and were all sitting out the back having a bonfire. He said that he did not recall meeting Bautista at all. He said that he only saw a red or maroon vehicle outside his place once.
He was asked if he recalled a time when Tamapua and his friends returned to Villawood in a vehicle later in the evening. He said that he was not outside but was in the house. He said that they never directly came to the house, but that they sat out the back around the bonfire like every night. He said that all the neighbours "gather around together at night and they walk through the back".
He said that he recalled that one evening he saw one of the boys in the possession of a machete, stating that it was probably three or four days after he first met Tamapua but that he was not sure. He said that the machete was in Ricky's hands.
The applicant said that he recalled someone saying they had "slashed" somebody but did not ask questions.
He was asked whether during that night he discussed with Tamapua anything about what he had been doing or where he had been, and he said that he did not.
He said that he next saw Tamapua the next day, as he was coming over every day uninvited. He denied going anywhere with him on that occasion.
The applicant thought that the kebab shop incident was a different day altogether to the incident in relation to the man with the slashed arm.
The applicant was shown a photograph of a firearm and stated that Tamapua brought it around to his place. He said that it was probably two or three days after he first met him. He said that Tamapua wanted to try and sell it. He was asked if he ever touched the weapon and he said, "Yes, I did. I thought it was the funniest thing I've ever seen".
The applicant was asked whether he kept any weapons at Villawood at any time up until 4 July 2010, and he said no.
The applicant was asked about the circumstances leading up to the incident at the kebab shop. He said that by that time he had actually got the key for the shop, and that they were cleaning it out and he needed some cleaning products. He said that he sent Aimee to get the products, and that "all of a sudden someone got a phone call and the boys ran up and I followed, and I got introduced to [Witness A] as I was going up there". He said that he was introduced to Witness A as "Tera's missus". He said that as they were walking up a guy walked out who was all bloody. He said that "Tamapua and all that came running back out and they had gone". He said that he went back to the shop with Aimee, Witness A and Wally Eldridge.
The applicant said that they all got arrested and were taken to Bankstown Police Station. He said that he stayed there for about four hours and was released without charge. He said that Karimi was with him when he was arrested.
The applicant said that he saw Tamapua at the shop the next day, saying that he turned up with his "regular boys", referring to Ricky, Toby and Witness A. He said that nothing was discussed between him and Tamapua at that stage.
He said that at some stage Karimi went down to the pub with the other men. He said that he stayed at the shop with Aimee who then went to Villawood and came back. He said he did not know why Karimi and the boys went to the pub.
The applicant said that he recalled Sonny arriving at the shop later that evening after the others had left for the pub. He said that at some stage, Karimi and the others returned from the pub to his shop. He said that he thought Sonny was with them, although he was not too sure. He said that there was another person with them who he subsequently learned was Natuba. He said that he had never seen Sonny or Natuba before that evening.
The applicant said that at some stage in the evening he discussed meat cleavers with Witness A, because she told him that her father was a butcher and wanted to have a look at one. He said that after Witness A and a few others looked at the meat cleaver, it was put back into the display cabinet.
The applicant said that he remained in the shop for a little bit and then went to Woolworths, which was about a five or ten minute walk away. He said that this occurred after the boys had returned from the pub. He stated that at that stage there were a number of people in the shop, including Tamapua, Natuba, Ricky, Toby, Aimee, Witness A and Sonny. He said that he could not recall the rest.
He was asked whether prior to leaving Woolworths there was any discussion between him and Tamapua about jobs. He said no. He also said that there was no discussion about an address at Warwick Farm or any discussion about Beanie Boy. He said that he had never heard of Beanie Boy prior to this matter. He also said that he had never heard of somebody called Jacob and that there was no discussion of an address at Lurnea.
The applicant said that at the time he left the shop to go to Woolworths his friend Wally was not there, although he arrived later that night. He said that when he left for Woolworths, he did not see a red or maroon Tarago.
He said that when he returned to the shop, Aimee, Witness A, Ricky, Toby and Ray were there. He said that he did not ask where the other persons had gone and that he was not curious about it.
The applicant said that a few hours, later there was a knock on the shutter and after it was opened Tamapua, Natuba, Sonny and Dosh walked in. He could not remember the rest of the people that walked in. He said that a person called Tower was there. It should be noted that Tower was described as Fijian but was not otherwise identified.
The applicant said that when they walked in there was a lot of commotion, yelling and screaming. He said that the persons who were yelling and screaming were Tamapua and he thought Natuba and Sonny. He observed that Natuba had a "pretty big gash" on his left shoulder.
The applicant said he asked what happened. He said that Tamapua said they "got jumped" and that another person said they were at a train station and "got slashed". He thought that was either Natuba or Sonny. He said that he did not ask any specific questions because he did not want to know anymore.
The applicant said that he told them to get Natuba to hospital because he was bleeding pretty badly. He said that Natuba left with Ricky and he assumed that they were on their way to the hospital.
The applicant said that he observed Tuki cleaning three meat cleavers. He said that he asked Tuki what he was doing with the meat cleavers and did not get a response.
The applicant stated that at the time Natuba went to the hospital, he observed other items in the shop which did not belong there. These items included a bag and a Jim Beam tin.
He said that after Natuba and Vergara left for the hospital, everyone else left except for Witness A, Tamapua and Ray.
The applicant said that sometime after the return of the boys he "freaked out" and went outside and called Wally Eldridge. He said that he freaked out because he had never seen anything like it in his life and it disturbed him. He said that he asked Wally to come to the shop and that he had a discussion with him. He was asked if he thought about ringing the police and he said no, responding, "Look at these blokes, they're capable of doing anything. I mean, if they slashed a guy's arm and sat there laughing about it, they know where my house is, they know where the shop is".
The applicant said that when they left the shop, Kraak grabbed the bag and took it with him and "the rest of them all just went out the front".
The applicant said that when he got back to his house at Villawood, Tamapua, Witness A, Ray, Aimee and Wally were there. He said that he did not really discuss the events of the evening with Tamapua but just told him, "Look, I don't want youse back here anymore. You know, my shop. I don't want no dramas, no trouble". He stated that he regarded Tamapua as a "very fearful person".
He said that shortly after Tamapua and Witness A went home. He said he thought Dosh came and picked them up.
He was asked when he next saw Tamapua and said that it would not have been the next day but the day after. He said that he would have seen him at Claymore, because he went there to pick Tamapua up so he could help Aimee's father who was moving house. He said that they did not discuss anything about the events of the previous two nights.
The applicant said that he heard about the death of the deceased after he had picked Tamapua up from Claymore. He said that he heard it through the radio news. He said that Tamapua said that that was the place where "the boys ran in" and they "actually didn't get jumped", and that that was where Natuba got the gash on his shoulder. He said that was the first time he had heard anything about it.
The applicant agreed that he did not go to the police. He said that was because Tamapua "went off his head" and said in front of everyone, "If anyone goes to the police, they know what's going to happen to them".
The applicant said that he did not see Tamapua after that day.
The applicant said that he had two contacts in respect of his drug dealing. One was a Mr Morris at Hoxton Park and the other was Kevin. He said that he recalled asking Karimi to go and deliver some drugs for him and that he understood that was the evening Karimi was arrested. He said that that evening he was at Villawood and that Tamapua, Wally, Sonny and John John were there. He said that he did not recall what Tamapua was discussing with John John. He said that John John only stayed at his place for about five minutes. He said that everyone then left except for Wally and him.
The applicant denied that he was ever in possession of a silver pearl-handled pistol.
The applicant said that after Karimi got arrested the shop at Chester Hill continued to trade successfully for a month and a half. He agreed that at some stage he left that shop and went to a factory outlet in Ingleburn. He said that that was because they "outgrew the shop straight away".
The applicant denied that he knew anything about the job at Mr Bertolli's property in Lakemba. He denied that he knew about the Ashcroft job or the Warwick Farm job. He denied that he asked Tamapua to do any jobs for him that night. He denied that he ever asked Tamapua to close down drug dealers in the Liverpool area or that he knew anything about the Lurnea job before Tamapua left his premises. He also denied that he counselled Tamapua upon his return from the Lurnea job or that he split the rewards of the job at the shop.
In cross-examination by the Crown, the applicant denied ever showing Tamapua a Beretta firearm.
The applicant stated that it was on 3 or 4 July that he became aware that the deceased had died. He said that Tamapua was talking about it at Villawood. He agreed that if Tamapua was arrested in the early hours of 4 July it must have been on 3 July.
The applicant said that he did not know straight away that the killing was connected with the persons who had come to his shop. However, he agreed that Tamapua made it quite clear.
The applicant said that he had known Karimi for maybe six months. He stated that it could have been since 2009. He stated after he moved to Villawood, Karimi was not a friend but more of a "come past".
The applicant agreed that Karimi and Tuki were there when he met Tamapua at Kevin's residence. He agreed that he was having an issue with Kevin because he had not "paid up" (presumably for drugs) but denied that Karimi was there for any particular purpose. He said that Tuki was Kevin's friend.
The applicant agreed that on the night of 1 July, Karimi went to the pub with the others. He said he also recalled Karimi coming back from the pub. He agreed that it was possible that Karimi was one of the persons who came back to the shop when Tamapua returned at about the time he saw Natuba with the injured shoulder.
The applicant denied that he had ever met Mir.
The applicant was asked about his drug dealing and said he remembered having a conversation with Tamapua where Tamapua asked him if he did coke. He said he responded that he had not done that for about six months.
The applicant agreed that he saw Tuki cleaning three meat cleavers at the shop on the night of 1 July and that he moved them to Ingleburn about a month and a half later. He stated that the meat cleavers were still at the shop when the police conducted a search of the premises.
The applicant agreed that in June 2010 he was looking to expand his drug business. He was referred again to the occasion when he was at Kevin's place with Karimi and Tuki talking to Kevin and agreed that it seemed like Tamapua reacted as if he assumed that he (the applicant) was "standing over" Kevin. He agreed that Kevin owed him money for drugs at the time. He said that Wally Eldridge was also there.
The applicant agreed that although he was not impressed by him, Tamapua commenced providing protection for him. He said that there was never any talk about money or anything but that Tamapua said "he would look after Kev with what I was doing and that's the arrangement we came to". He then said that he was not introduced to Tamapua at Kevin's property but rather on the same night when Ray brought him over. He said that Ray and Tamapua were friends.
The applicant denied that Tamapua said to him, "I protect drug dealers but a couple of my boys do home invasions". He denied that Kraak said in front of him that Tamapua collected debts and that he (Kraak) did home invasions. He denied that there were any discussions about the jobs they did. He said that Tamapua just seemed to turn up all the time to the compound uninvited.
He denied that there was an occasion at the compound when he said to Tamapua that he had a job which involved getting a gun and shooting somebody. He denied that Karimi brought out a sawn-off .22 rifle. He also denied that he was storing any rifle in his unit.
The applicant agreed that Karimi had a contact number for him and that he had a contact number for Karimi. He agreed that he and Tuki also had each other's contact number. So far as Tamapua was concerned, he said that he thought that Tamapua had his contact number but did not think he had his. He said that if he needed him (Tamapua), Ray was his (the applicant's) next door neighbour. He denied that he ever gave Tamapua a phone.
The applicant also denied that there were discussions with Tamapua that if the gun came out it would be Karimi who would take the gun. The applicant denied he knew that Karimi was named "Trigger". He was referred to Bautista's evidence that he was introduced to Karimi as "Trigger" by Tamapua and responded that if Tamapua wanted "to make up names", that was Tamapua, not him. He said he never saw Karimi with a firearm.
The applicant said that he had never heard of United Brotherhood.
The applicant was referred to a series of calls he made the day before the Ashcroft job including a call to Tuki, a call to the Tamapua/Witness A phone and a call to Karimi's phone. He denied that he was "gathering the troops together". He also denied that the calls showed he was "keeping an eye on" the Ashcroft job which was intended to take place on 28 June.
The applicant agreed that he knew a person called Harry. He agreed that he met with Harry at Villawood (the compound) the day before the Ashcroft invasion that resulted in Mr Stiff being injured. It was suggested to him that on 28 June to his knowledge Harry had taken Tamapua and other persons to the Ashcroft location for the purpose of committing a home invasion.
The applicant was then asked about the events of 29 June. He agreed that Tamapua and other persons associated with him were at the compound that night and that Karimi was also there. The applicant was referred to the evidence of Bautista and Tamapua that he travelled in the car in front of them in a green Commodore on 29 June and pointed out Bertolli's house to them: see at [44], [179]-[180] above. He denied that he did this. However, he said that they "all went for a drive together" on a different day when he said, "I used to go out with a girl and her uncle lives there". He said that the persons who were there that day included Tamapua and Karimi. It was put to him that the cell tower records showed that he was in the location of Bertolli's residence, and he then said he was in the area because he had to go and pick up something at the servo. He was asked whether the others "just went for a drive out behind you", and he said "Yes, they always do" and that they sat around in the Tarago while he was at the servo.
The applicant denied that he was involved in some planning for the Ashcroft job. He denied that he told Tamapua and Bautista that as the Lakemba (Bertolli) job did not take place they had to do the Ashcroft job. He also denied that he was involved in providing the firearm to Karimi to take on the Lakemba job. He denied that he had any interest in getting the Desert Eagle firearm.
The applicant was referred to a series of further phone calls and SMS messages in which he was involved on the night of 29 June and the early morning of 30 June. These included a call from Karimi, some 23 minutes before he got a call from Tuki advising him of a person coming with a chopped arm, calls from Tower, further calls from Tuki and a text message from Harry. He stated that it was just coincidence that Karimi called him before Tuki called advising him of a person coming in with a chopped arm. He said that the phone calls were not for the purpose of Tuki keeping him updated from the hospital as to what occurred. It was put to him that he would be interested in finding out whether there would be police attending the hospital in respect of Mr Stiff, and he said that he had no involvement, so it would not bother him if the police were there or they weren't. He was shown his phone contact records and agreed that his contacts included Harry, Scheck and a Leyla Home, the niece of Mr Bertolli.
The applicant was then referred to the events of 30 June. He agreed that he went to the kebab shop as the result of a phone call, where he met Witness A. He agreed that there were a number of people at the shop including Tamapua, himself and "Wazza", who he described as another mate. He was asked whether there was any purpose for those people being at the shop and he said, "No not really, besides the fact that they were there just to help". He said that they were not there at his invitation but that Ray "obviously called them up". He said that he was not going to have those people in the type of shop that he had, and that there was "not much trust there".
The applicant was then cross-examined on the events of 1 July. He agreed that Tamapua came to the shop that evening, saying that to his memory he "just turned up". He said that he was at the shop to clean and set up. He was referred to his evidence that at that stage Aimee, Ray and Mohammed (Karimi) were helping him. He was also referred to where he said that Tamapua turned up with "his regular boys" Ricky, Toby, Witness A. He was referred to a telephone call between him and Tamapua which took place earlier in the afternoon, and it was put to him that it was not the truth that Tamapua "just turned up". He denied that he ever told Tamapua to come over and said that he "wouldn't have a clue" what they were talking about in that telephone call.
With prevarication, the applicant admitted that by 1 July he was aware that Tamapua and his associates had been involved in serious criminal activity on 29 June. It was suggested to him in that context that Tamapua was not a person he would want around.
He said that as at 1 July he was not aware of a person called Mir or Mack, nor did he remember Eliza Brown coming into the shop. He said that anyone could have been in his shop at that time.
It was put to him that on that evening, Tamapua introduced him to Sonny (Byquar) and he denied it. He said that he met Sonny that night but was not introduced to him. He agreed that Sonny was "just a bloke hanging around the shop".
It was put to the applicant that at Villawood he told Tamapua that he was planning on shutting down drug dealers in the Liverpool area and told him about the Grandstand Hotel, and he denied it. He also denied that he wanted to shut them down that so his dealers could make money. He denied that he said to Sonny in the shop before anyone went to the pub, "Do you have any boys and stuff?" He also denied that he told them about the United Brotherhood or that Sonny said to him, "I've got boys in Doonside".
He repeated his evidence that he did not recall Sonny being in the shop, stating that he did not have any conversations with him.
The applicant was referred to a text message sent by Sonny to Natuba at 6.22 pm, which read, "U want 2 recruit 2 united! Dont call txt me!". He denied that was in response to his request to Sonny to recruit more people to help shut down dealers in the Liverpool area.
He was referred to a further text by Sonny at 6.26 pm, which read, "New game cumin up! Conected 2 benditoz n that!". He denied that he had been telling people that there was some connection with the Bandidos. He agreed, however, that Natuba ended up in his shop shortly after Sonny sent those messages, although he denied that he knew it was as a result of those messages. He stated that apparently Tamapua called them and told them to come to his shop.
It was put to him that there was a time when people were going to the shop after they first went off to the pub, and that Karimi and Mir came to his shop and then left with Tuki to go to the pub. He responded, "Could have been, I don't recall". He agreed, however, that around 9.00 pm only he, Aimee and Witness A were at the shop. He said he did not know whether Ray had been at the shop and that he had not been paying attention to him. He said that he did not recall Ray going back to the pub with Karimi and Mir but agreed that it could have happened.
The applicant was referred to the CCTV footage from the Chester Hill Hotel that showed that around 9.45 pm Karimi, Tuki and Mir left the pub. He was also referred to a call from one of his phones at 9.45 pm to a phone used by Karimi. He was asked whether he gave a call for them to come back to the shop and he said he did not recall what the phone call was about. He stated that he did not recall Tamapua being upset with Karimi and Tuki when he returned to the shop.
It was then put to him that on arrival back from the pub he took part in planning for two jobs that were to take place that night and he denied it. It was suggested to him that there were discussions in which the Warwick Farm job and the Jacob job were raised.
The applicant said that he was only there for about five minutes after the group came back from the pub before he went to Woolworths. He said that in that time there was no conversation as to what they were doing there, saying he "didn't even hear anything". He said that Tamapua was there with them and volunteered that he was a "pretty intimidating bloke", although he then said that he did not say Tamapua was intimidating him.
The applicant was asked at what stage he took out meat cleavers in the presence of some of those people, and he said he could not remember the stage and that it was only to put them on display. He could not recall whether that was before they went to the pub or after they came back from the pub. He agreed that he showed a knife to Witness A and that some of the boys passed it around. He denied that the boys who were going to do the job grabbed one meat cleaver each or that they were picked up and people went off to do the jobs. The following questions were then put him: "Q. Mr Khoury, what I suggest to you is that at the shop, after people came back from the pub, Mr Tamapua complained about the behaviour of - complained to you about the behaviour of Ray Tuki and Karimi? A. No. Q. That he said, 'If I'm going to be joining youse, youse have to be up front with us, youse have to be honest with us'. Is that what Mr Tamapua said to you? A. No. Q. And that you then had words with Mr Karimi and Mr Tuki; is that what happened? A. No. Q. That Mr Karimi said to you, 'Do you want us to do the Jacob job tonight?' Did you hear him say that? A. No. Q. And you said yes, I suggest? A. No. Q. That Mr Karimi said to persons that he would take them to a house where there's ice, drugs and weapons? A. No. Q. And at about that time Mr Tamapua said, 'I've got a drug dealer as well. His name is Beanie Boy and he lives in Warwick Farm'? A. No. Q. Did you hear that being said? A. No. Q. And that you agreed that that job could be done as well? A. No. Q. And between you, Mr Tamapua and Mr Karimi you decided who was to go into the houses, who would run into the houses that night. Did you take part in that? A. No, I didn't. Q. And it was agreed that three new boys would go in, being Tomasi, Sonny and Mack would be three of the four that go in; is that what happened? A. No. Q. As an initiation for those three? A. No. Q. And that [WA] would also go in. Were you a party to such an agreement? A. Not at all. Q. And at one point in these discussions with Mr Tamapua Tamapua said to you, 'Do you reckon we should put these guys for initiation for the Jacob job and Beanie job?', and you agreed? A. No. Q. That you said, 'We want to see them in action, see if they're - they've got the balls to do these type of jobs'? A. No such conversation ever took place. Q. I suggest that after such conversation, shortly after that the meat cleavers were distributed to those doing the job? A. Not that I'm aware of."
The applicant repeated his evidence that he had no knowledge of the arrival of Ramos with the Tarago before he went to Woolworths and that after he came back from Woolworths the people had already gone. He said that he could not recall how long he was away from the shop when he went to Woolworths. He clarified his evidence by saying that he went to the complex where Woolworths was but went to "a little Asian shop" there. He said that he could not recall the name of the Asian shop. He said the complex was not closed if Woolworths was closed.
The applicant stated that he could not recall Kraak being on the phone on his return discussing something about Beanie Boy. He said that he was not paying attention.
The applicant was referred again to his evidence in chief as to what occurred when the boys returned to the shop. He agreed there was a discussion about Natuba going to hospital and agreed that he suggested he should go to Bankstown Hospital. He denied that that was because Liverpool Hospital was close to Lurnea. He also denied that he asked for people to contribute money to be sent to Natuba and that a cloth was put out for money to be collected and given to Sonny to take to his cousin.
He was referred to his evidence that he saw the Jim Beam tin in the shop. He agreed that he touched it but said he did not open it and did not see what was in it. He agreed that he also saw a female's handbag. He said that he did not see it until the end of the night.
The applicant was referred to the question asked of him in chief as to whether when he and Tamapua returned to his house they discussed the events of the evening and his response, "No not really. I just told him look, I don't want youse back here anymore. You know, my shop, I don't want no dramas, no trouble". He said that he was scared of Tamapua and that that was why he had Wally with him. The applicant agreed that notwithstanding what he observed in the shop, which he said "freaked [him] out", he facilitated Tamapua going back to his bedsitter at Villawood. He said that the purpose of taking him there was that he had no transport and he did not want him to stick around the shop. Ultimately, he said that he took him back because his (Tamapua's) missus was pregnant. It was put to him that that was not true, and he denied it.
The applicant agreed that the next occasion he saw Tamapua was when he picked him up at Claymore. He agreed that Karimi was in the car and that the purpose of Tamapua coming to his place at Villawood was to help Aimee's stepfather move. He said that was the case even though he was fearful of Tamapua and had been trying to get him not to hang around him.
He also agreed that he might have had a bit more contact with Tamapua prior to the occasion when he picked him up at Claymore. He said, however, that he could not recall spending time with Tamapua on the night of 2 July.
The applicant was referred to a conversation between Tamapua and Karimi at 7.43 pm on 2 July where Karimi said to Tamapua that "the older brother said not to go to the shop because he doesn't want us to hang out there anymore" because his parents were there.
He said that he did not recall giving any instructions to Karimi to tell Tamapua not to come to the shop at Chester Hill. He was asked whether his parents came to the shop, and he said no and agreed that the conversation did not make sense.
It was suggested to the applicant that he never said to Tamapua at Villawood that he no longer wanted him to hang around the shop or at his unit, and he said he did.
The applicant was taken to a call between him, Ricky, Dosh (Ramos), Tamapua, MA and himself. He agreed that he could have been with Tamapua when the call took place and that Tamapua put him on the phone. He agreed that the call included talk about drugs and that MA was asking to come around and pick up some more. He stated that that was through Tamapua, and that everything that was arranged with Tamapua's boys was through Tamapua. The applicant agreed that he was a drug dealer and the source of the ice. It was suggested to him and he agreed that the person he was talking to was one of the persons who had returned to the shop when Natuba was there with his injured shoulder and the meat cleavers were being washed up. He agreed that he was talking to one of the very people he had described as having freaked him out and in respect of whose activities he said he had never seen anything like it in his life.
It was suggested to him in that context that his evidence about telling Tamapua he did not want him around was a lie.
He was then taken to another call at 11.20 pm on 2 July between him, Karimi and Tamapua. He agreed that Tamapua put him on the phone and that it followed that he was still with Tamapua at 11.20 pm that night. He again denied that Karimi was one of his "trusted persons". He agreed that he said in the conversation, "Yeah, is Mack with you", but continued to deny that he knew who Mack was.
He was referred to his statement in the telephone conversation where he asked, "Have you gotten rid of anything?" and said he was talking about ice. He was then referred to that part of the telephone conversation where Karimi said, "I'll probably come and see you, yeah, if the job", and his response, "Alright, no worries". He was also referred to Karimi's question, "Have you got anything in mind?" and his response, "No, not yet, bro".
He was asked whether that conversation referred to shutting down drug dealers and taking over the territory and he denied it. He said he could not remember what he was talking about.
It was again put to him in that context that his evidence that he did not want Tamapua hanging around with him was false and he said he probably got it mixed up. He agreed that he did not seem overly concerned about being with Tamapua on those calls.
The applicant acknowledged that he was with Tamapua at the time of those calls. He also agreed that at 7.43 pm Karimi told Tamapua that the older brother said not to go to the shop.
The applicant agreed after being referred to calls between him and Tamapua in the early hours of 3 July that at that stage, he was still getting on well with Tamapua and discussing drugs. It was put to him again that it was not true that he had told Tamapua to keep away from him, and he said he did at some stage but that he did not exactly recall when.
It was put to the applicant that when the group returned to the shop after the home invasions, he was well aware of what items came from the jobs. He denied it. He denied that he was aware there was a school type laptop computer and that the Jim Beam tin contained cannabis. He also denied that he was aware that there was a driver's licence from the job which Aimee cut up. He said that he did not see it at all. He said that he could not recall Wally saying, "Lay low and keep your mouths shut".
He agreed that on 3 July 2010 there was some discussion with John John about the murder. It was put to him that John John was told that he would have to do an initiation, being a job, and that if he did the job he could join the group. He said that he did not recall that. He denied that he was part of that conversation. He said that he did not recall the group being referred to as United Brotherhood.
The applicant agreed that he made arrangements for Karimi to deliver drugs to Hoxton Park on 3 July 2010. He agreed that the arrangement was made at Villawood.
The applicant was also referred to a telephone call between Tamapua and Tuki on 3 July concerning the Miller pools incident. In that conversation Tuki said, "Miller pools, what's the matter", and Tuki replied, "What do you mean, bro, fuckin' didn't Bishop tell you or fuckin' Scheck tell you". He was referred to the fact that Tuki also stated, "Yeah, yeah I'm heading back to the compound now to pick up something and I'm coming to get you straight away", and to the fact that shortly before that call he received a phone call from Tuki. He denied that his conversation with Tuki was about picking up a firearm, saying that he never had a firearm at Villawood.
He was then referred to a telephone conversation at 12.11 am when Karimi phoned Byquar. He was referred to the fact that the record showed that the Karimi phone was at Villawood, and it was put to him that that was consistent with Karimi being with him at Villawood. He said that it may have been, but that he did not know.
He was referred to a portion of that telephone conversation when he got on the phone and said, "Sonny what's going on?" and to the fact that Sonny said, "You know the boy, the boy that came today, you know one of, one of the boys that came today, John John", and his response "Yeah, yeah". It was put to him that he understood what the phone call was about, and he responded that he was not really paying attention. He was then referred to the statement by Sonny, "They are trying to jump him outside. We want to kill those cunts outside, bro, we want to kill them". He said that he did not pay attention to that bit. He was then referred to Sonny's further statement, "So, we will, soon as you get here bro, we're just going to kill the cunts", and his response "Alright". It was put to him that he was happy to sanction the killing and he stated that he did not agree to it. He that said "Alright" was not an agreement. He was then referred to his statement, "No worries. It's all ready to rock and roll", and he said he did not know what that meant, saying it had nothing to do with "we want to kill the cunts" and nothing to do with Scheck (Karimi) being armed up with a firearm.
The applicant was then referred to a subsequent part of the conversation where Sonny said, "Yeah, I'm sweet, I'm sweet. I'm fuckin', I'm ready to fuckin' kill these cunts, bro" and his response, "Yeah, alright no worries. That's all good". He was also referred to Sonny's further comments, "We want to slash a, fuckin' going to kill him, bro" and "call me as soon as you get here", and his response, "Yeah, yeah they're all getting off too". He said that he did not know what was meant by "all getting off too". He denied it meant that Tuki, Vergara and Karimi were coming to the compound and it was all ready to go.
He was referred to the fact that his phone subsequently contacted Tamapua whilst he (the applicant) was near Miller. He agreed that Tamapua was not dropping off drugs for him and said that he could not recall his purpose when he was at Busby (near Miller) to contact Tamapua.
It was suggested to him that he was going to be near the location where everything was to take place and he said that was not at all correct.
He was then referred to a telephone call at 1.25 am on 4 July between him and Sonny Byquar. He agreed that he stated, "They should have been there ages ago. What's going on?". He agreed that he subsequently stated, "What do you mean, brother, all the boys, Tera and that all fuckin' rang me up half an hour ago from Miller". He disagreed he was keeping in contact with them to find out where they were.
It was also suggested to the applicant that the shop he said he went to on the night of 1 July in fact closed at 8.00 pm and he stated that he did not know if that was the shop.
In re-examination, the applicant stated that he continued to deal with Tamapua and his associates because he did not want them to know that he was scared of them or make them think he was going to the police.
It was admitted at the conclusion of the applicant's evidence that on 1 July 2010, all retail shops in the Chester Hill shopping centre other than the Woolworths would be closed by 8.00 pm. On Thursday 1 July 2010 Woolworths closed at 10.00 pm.

a The applicant

Senior counsel for the applicant submitted that the Crown case was put on the basis of extended joint criminal enterprise, the relevant agreement being an agreement to do what was described as the Jacob job with the foresight of the deliberate infliction of grievous bodily harm. He submitted that the sole question on the appeal was whether there was sufficient evidence to establish participation in the agreement. He referred to the timeline provided by the Crown (see Annexure B to this judgment) and submitted having regard to that timeline, the agreement would have had to have been made between 9.40 and 10.28 pm on 1 July 2010.
Senior counsel pointed to what he called "complexities" in respect of two phone calls made by Karimi, one to Mahdi Karimi at 10.39 pm and the other to Abdul Karimi at 10.41 pm. These telephone calls, to persons who were said by the Crown to be Karimi's cousins, were submitted by the Crown to be consistent with Karimi having spoken to the applicant and getting approval for the Lurnea job, and then contacting his cousins to obtain the relevant address. Senior counsel for the applicant pointed out that these calls took place prior to the estimated time of the Warwick Farm home invasion. He also pointed to the fact that Tamapua was seeking to contact Beanie Boy at 11.11 pm, which was approximately the time when the group met Karimi's cousin at Merrylands on their way to the Jacob job.
In both written submissions and orally, senior counsel for the applicant mounted a substantial attack on Tamapua's reliability and credibility. In written submissions, reference was made to the fact that only after failing to locate Beanie Boy was attention turned to the second invasion and that no attempt was made to contact the applicant during this period.
The applicant's written submissions also referred to the fact that Tamapua's evidence was that Karimi's outline of the Jacob job at the applicant's shop involved members of the group entering the house of a drug dealer thought to be in the possession of a shotgun (see [194] and [224] above), and yet on Tamapua's account, he did not raise the possibility of the group taking the .22 calibre rifle with them. The submission also referred to the evidence of Natuba that when they went out he thought there was only one job: see [122] above.
The applicant in written submissions noted that Karimi made contact with Abdul Wahid Karimi at 11.08 pm, which was after the Warwick Farm invasion. It was submitted that it could be inferred that the call was made in order to ascertain the Burgess address. The applicant referred to the evidence of Mitchell Kearns, who knew that Jacobs Burgess sold cannabis from his home and had pointed out the Burgess address to Wahid Karimi and said he bought cannabis there: see [23] above.
In that context, it was submitted that the evidence allowed for the real possibility that the offence at Lurnea occurred because Karimi and Tamapua decided, without the involvement of the applicant, to target the Burgess household and that the decision arose as a consequence of the failed invasion at Warwick Farm.
The applicant in his written submissions stated that the contrary position relied on the evidence of Tamapua and, to a lesser extent, Witness A.
The applicant pointed out that Tamapua was an admitted armed robber who had engaged in violent robberies and home invasions, in which he generally stayed in his car whilst the offences occurred. It was also noted that he refused to answer questions about certain robberies even after being granted a s 128 certificate, and that he had his own crew which included Kraak, Vergara, CJ, Blackie (MA) and Dosh (Ramos). I have referred to some of the evidence at [210]-[212] above. He also referred to the evidence of Witness A who stated she was terrified of Tamapua who had bashed her: see [302] above. It was also pointed out that Tamapua had committed perjury at the committal hearing of a charge against his cousin: see [219] above.
The applicant also referred to the series of lies which Tamapua told the police in his interview of 4 July, including the fact that he falsely told the police that the "United Brothers" had 400 members in gaol, had joined with the Muslim Brotherhood, the Bandidos and the Rebels, had set people on fire in their houses and had shot people in the bush. I have referred to his admissions to lying to the police at [235]-[253] above. It is unnecessary to repeat what I have set out.
Senior counsel for the applicant referred to the evidence which I have set out at [246] above. He submitted that Tamapua not only denied his involvement in the killing but asserted that the applicant in fact did the killing. He also referred to Tamapua's statement to the police where he said, "But I'm giving information youse gotta give me something", submitting that what emerged was that Tamapua was prepared to lie to inculpate the applicant for the purpose of distancing himself from the offence.
He also submitted that when evidence emerged about the murder, there was no evidence that what was spoken about at the shop was the "Lurnea job"; rather, it was described as the "Jacob job". He stated that Lurnea was only mentioned once by Tamapua in cross-examination very late in the piece. He submitted that it beggars belief that Lurnea would have been mentioned at the shop, and then the group go do the robbery at Warwick Farm, and then drive 10 kilometres in the opposite direction, and then go back to Lurnea if they knew the job was at Lurnea in the first place.
Senior counsel for the applicant referred to the evidence which I have set out at [251] above where Tamapua told the police that he did not know he was going to Lurnea. He stated that what emerged from the record of interview was that Tamapua claimed that Jacob Burgess was a mate of his and that he was close to him and was devastated by his death: see [247]-[248] and [252] above. He submitted that the way that it worked was that when Tamapua was being interviewed by the police it was important for him to say that he had nothing to do with the Burgess killing and that he was devastated by it.
He submitted that Tamapua's position changed at the trial, where he submitted that Tamapua had to distance himself from being close to the person, namely Karimi, who was actually involved in an independent decision to do the job. He submitted that Tamapua stated at his trial that the fact that he told the police he had nothing to do with the Burgess killing was a lie.
Senior counsel for the applicant referred to a portion of the police interview summarised at [251] above where Tamapua stated that the Beanie Boy job was the applicant's job, submitting that was also a lie.
Senior counsel for the applicant also referred to Tamapua's evidence of what happened at the shop. He referred to the evidence which I have set out at [194] above which he submitted went to the heart of the alleged agreement. He stated that if Tamapua's evidence was to be accepted, it was agreed that the "new boys" were going to a house unarmed where they believed there would be a shotgun. He referred to Tamapua's evidence which I have set out at [225] above, and particularly to his statement that he was no longer responsible for his boys because he was in the Yaris and they were in the Tarago. He described that evidence as incredible and an invention. He submitted referring to a map of the area that they could have picked up a firearm from the compound which was only a short distance from the shop.
Senior counsel for the applicant then referred to the evidence which I have set out at [227] above. He noted that Tamapua's evidence was to the effect that at 11.30 pm he was still trying to track down Beanie Boy. He submitted that must be lies because the job at the Burgess home took place at 11.45 so they could not have still been driving around Warwick Farm. He submitted that portion of his evidence was the first time he suggested that he knew from the conversation at the shop that the job was at Lurnea.
Senior counsel for the applicant submitted in summary that the participants in the Tarago who got directions from Karimi were all new recruits and part of Tamapua's gang. He said that the discussion at the shop referred to the presence of a shotgun. He also stated that the group left for Warwick Farm with no-one in the vehicle aware of the location of the Burgess job, and that that information came as a result of the trip to Merrylands.
He submitted that where there was no contact at all with the applicant between the first and second offence, Karimi was the one who had the ability to locate the Burgess home, and Tamapua had experience in home invasions and stated in his police interview that he knew Burgess well. He noted that the competing inference that the second home invasion was decided upon by Karimi and Tamapua when they were both in Tarago could not be excluded. He submitted that that was the case even though Karimi made phone calls to relatives before the Warwick Farm invasion. He stated that it was of particular importance that Tamapua, despite his professed concern for his boys, did nothing in respect of the Lurnea job except stay in the Yaris, even though on his account he knew that there was said to be a gun. He emphasised that Tamapua's boys formed part of the Burgess home invasion team.
Senior counsel for the applicant submitted that on that hypothesis the Burgess address was obtained from Karimi's cousin at Merrylands.
Senior counsel for the applicant submitted that it was not suggested at the trial that it was possible the group knew they were going to Lurnea but, in light of their experience at Warwick Farm, went to Merrylands to join up with someone who could guide them to the house. He accepted that his submission involved the proposition that either Tamapua or Karimi proposed the Lurnea job in circumstances where they did not know where Jacob Burgess lived, and that they had to drive to Merrylands to pick someone up who knew.
Senior counsel for the applicant submitted that it would be necessary on the Crown case to accept Tamapua's evidence about the two jobs being agreed upon at the shop, as there was limited support on this issue from Witness A and Kraak, and none from Natuba. He stated that Natuba stood in a significantly different position from Witness A, who was Tamapua's partner, and Kraak, who lived with Tamapua and had done numerous home invasions with him. He reiterated what was said in the written submissions, namely that Tamapua was an active criminal with his own crew and that he had been incredibly violent towards his partner. He also reiterated that he was an admitted liar and a perjurer who had an "incredible amount to gain" by giving a false account to the police. He agreed that the jury were given a warning under s 165 of the Evidence Act 1995 (NSW) in respect of Tamapua's evidence.
So far as Witness A was concerned, the applicant in his written submissions contended that she was an admitted liar who had every reason to inculpate the applicant.
In written submissions, the applicant accepted that Witness A had been interviewed by the police on 11 July and had referred to a discussion about a job at Lurnea: see [335] above. He accepted that she first visited Tamapua in custody on 17 July (see [325] above) but stated that there was no evidence as to when she started to communicate with him by telephone. The submissions referred to Witness A's evidence that she had discussed the case with Tamapua since Tamapua had been in custody: see [320] above.
The applicant in his written submissions referred to the fact that Witness A had accepted that she lied on oath during the committal hearing. I have not set out the evidence said to be lies, but it related to her agreeing with the proposition at the committal hearing that she had an interest in getting Tamapua out of gaol as quickly as possible to continue life as a couple. She stated that that was a lie because she was scared of Tamapua.
The applicant's submissions, both written and oral, referred to the evidence concerning the hiding of the Burgess phone. Reference was made to the telephone call Witness A had with Kraak to which I have referred at [305], [308], [321] and [329] above. Senior counsel for the applicant said that that evidence, coupled with her statement in a telephone conversation with Tamapua on 3 July when she said "It's gone, everything's clean, babe" (see [330] above), showed that she was actively destroying evidence of Tamapua's involvement and not owning up to what had occurred. Senior counsel for the applicant also referred to her agreement that in her interview with the police she told a lie that Bishop had threatened her (see [327] above), saying it showed that she was doing what she could to help Tamapua and what she could to harm the applicant.
Senior counsel for the applicant referred to the cross-examination of Witness A to which I have referred at [305] above and to the fact that she left the Warwick Farm job out altogether in her statement to the police. He submitted that the idea that what was talked about at the shop was the job at Lurnea did not fit the evidence, as the only time Tamapua mentioned the job at Lurnea was at the last stage of his cross-examination by counsel for the applicant in the Court below. He submitted that by the time she came to give her account on 11 July about Lurnea she knew what Tamapua's position was and that Lurnea was a major problem because a person had been killed in that invasion. He described her evidence in those circumstances as "very weak evidence" in support of the Crown case.
Senior counsel referred to the portion of Witness A's evidence to which I have referred at [323] above, where she said she never properly heard about Lurnea until after it happened. He noted that it was put to her that she was making it up. He also referred to her evidence that she spoke to Tamapua for five minutes on the day he was charged: see [324] above. This evidence was contrary to that of Detective Senior Constable Cragg who stated that she did not permit Witness A to see Tamapua on that day: see [420]-[421] above.
Senior counsel for the applicant submitted that the re-examination was a very weak piece of evidence by a person close to Tamapua.
In dealing with the evidence given by Kraak, the applicant's written submissions noted that in cross-examination Kraak agreed that Tamapua was one of the people who planned the robberies. It was also noted that Kraak said he could not recall 100 per cent if he had told the police that Tamapua had done the planning.
Senior counsel for the applicant referred to Kraak's evidence of part of the conversation at the shop which I have set out at [345] above. Referring to that part of the conversation concerning Beanie Boy, he submitted it was "curious" that Tamapua and Kraak had a private conversation concerning that proposal. He submitted that the high point of his evidence was when he stated that Scheck said, "I have another address to do". He submitted that that evidence coming from a man with as little credibility as Kraak was "slim evidence" supportive of Tamapua's account. He referred to the cross-examination by counsel for Karimi to which I have referred at [382] above which he submitted weakened the evidence. He noted that the judge gave a s 165 warning.
Senior counsel for the applicant also referred to the evidence of Natuba to which I have referred at [122] above, where he stated that he understood that there was to be just one job. He also referred to Natuba's evidence that he had never heard Tamapua use the name Beanie Boy. He referred to Natuba's evidence that Tamapua asked, "Do you want to do another job?" (see [133] above) and similar evidence to which I have referred at [134] above. He submitted that contrary to the Crown's position that this evidence supported the Crown case, it supported the proposition that the second job came up in a conversation between Tamapua and Karimi and that the evidence was inadequate to establish that there was any continuing agreement reached back at the shop to do a second job.
In that context, senior counsel for the applicant submitted that to uphold the conviction the Court had to exclude the possibility that what Natuba said was correct. He submitted that the Crown case taken at its highest was Tamapua, a very unreliable witness with an established motive to lie, supported by two fragile witnesses, Witness A and Kraak, who were close to Tamapua and who had problems of their own of a significant kind, with Natuba not supporting their account. He submitted that the Court could not be satisfied beyond reasonable doubt of the applicant's guilt on that case. He submitted that it was not a situation where demeanour could affect the result.

b The Crown

The Crown accepted that it was necessary to prove that the applicant was a party to the agreement to conduct the Burgess home invasion and contemplated the possibility of the intentional infliction of grievous bodily harm. However, he submitted that the question fell to be determined taking into account all the evidence at the trial and all the incidents which occurred over the days in question, which he submitted cast light on and provided some insight into the relationship of the various participants and the hierarchy of the group.
He submitted that the Crown case was that the applicant directed the Burgess home invasion, provided the weapons, was involved in the planning and his premises were used as the "launching pad".
The Crown pointed to the fact that the jury's conviction on count 4, namely, recruiting Natuba to carry out a criminal activity (robbery whilst armed with a dangerous weapon) was not challenged. However, the charge did not specify either of the two robberies and in particular did not specify that Natuba was recruited to carry out the Burgess home invasion. It was accepted by the Crown that at the time of his recruitment Natuba may not have been aware of the jobs which he was to perform.
The Crown referred to the summing-up by the trial judge of the Crown case in respect of the Lakemba/Ashcroft job, noting that his Honour referred to the fact that the departure point was the compound. He noted that the trial judge told the jury that the evidence did not suggest that the Claymore premises where Tamapua and Witness A lived was used as a base for any type of activity. In that context, it was submitted that it was very much part of the Crown case that the shop and the compound were used as the "launching pad" and that the home invaders returned to the shop and the proceeds were handed to the applicant. He pointed out that the group's activities continued in the same way after the events of 1 July occurred and submitted that the alternate hypothesis that the Burgess job was conceived after the group left the shop did not fit in with the evidence in the trial as a whole.
The Crown contended that a number of aspects of Tamapua's evidence were consistent with that of the applicant. He referred to the evidence of Tamapua that at the first meeting the applicant told Karimi to go and get the rifle: see [172] above. The Crown submitted that that incident demonstrated the applicant's control over Karimi and Karimi's loyalty to him. However, notwithstanding the Crown's submission the applicant did not corroborate this evidence. Tamapua's evidence that Karimi's nickname was Trigger Man ( "Oh, we named him 'cause he's always got a .22 on him") was confirmed at least in part by Bautista, who said he was introduced to Karimi as "Trigger": see [41] above. The Crown also referred to the evidence of Tamapua that after the Ashcroft job Karimi lined up his boys and patted them down (see [186] above) which he stated was consistent with the evidence of Kraak: see [355] above. He submitted that the latter matter demonstrated that Karimi was the applicant's right-hand man, which was relevant to the likelihood of Karimi agreeing to do a job without the applicant's agreement. He also pointed out that the problem with the hypothesis that Karimi and Tamapua agreed on the Burgess job after the failure of the Warwick Farm job was that Karimi was already calling his cousins prior to the failure of the Warwick Farm job. He accepted that there was no evidence of what was said in those calls, but submitted that the inference which should be drawn was that they related to an inquiry as to the Burgess address and that ultimately the cousin was able to assist them so they drove back to Merrylands, swapped cars and were guided back to Lurnea.
The Crown in written submissions referred to a number of other areas where aspects of the Crown case were corroborated by the evidence of the applicant. It is unnecessary to set them out. They are matters which could assist the jury to infer that the applicant was involved in a number of the offences which occurred between 29 June and 4 July 2010. They did not, however, provide any direct support for the Crown case that the Burgess invasion took place as a result of an agreement reached on the evening of 1 July.
The Crown referred to the timeline which is Annexure B to this judgment. He referred to the CCTV footage indicating that Tamapua, Natuba, Byquar, Vergara and Kraak left the pub separately from Karimi, Tuki and Mir, which he said was consistent with Tamapua's evidence of what occurred at the Chester Hill Hotel: see [194] above.
The Crown referred to what he described as the "crucial" telephone calls, the first being from Ramos, the driver of the Tarago, to Vergara, who was one of the people at the shop. He said it was clear that the Tarago had not reached the shop at that stage because the CCTV footage showed it driving past the Chester Hill Hotel at 10.21 pm. He submitted that the CCTV footage from 10.28 pm showed the Tarago driving in the opposite direction towards Warwick Farm, and that at 10.39 pm Karimi telephoned Mahdi Karimi and spoke to him for 89 seconds.
The Crown noted that the call to Mahdi Karimi took place before the Tarago arrived at Warwick Farm. It should be noted that the first telephone call to Abdul Wahid Karimi also took place before the arrival. The Crown submitted that although there was no telephone intercept or other evidence as to the contents of the phone call, it could be inferred that it related to obtaining the Burgess address. He submitted that although that meant, as it turned out, having to drive all the way to Merrylands to be guided to Lurnea, this did not affect the position. He submitted that even if the group knew that Jacob Burgess lived in Lurnea they may not have known precisely where he lived, and it would then be necessary to contact Abdul Karimi again after the Warwick Farm invasion.
The Crown referred to Tamapua's evidence that he took Vergara's phone when he left for Warwick Farm. He referred to the telephone calls from Vergara's phone to Kraak at 10.52 pm, describing it as marking the beginning of Tamapua's attempts to locate Beanie Boy. The Crown submitted that the timing of the 000-call made by Maxine Rogers' neighbour after the Warwick Farm invasion was consistent with the call being made to Kraak at that time. However, he again emphasised that even before that occurred Karimi was making inquiries with his cousins. He referred to the fact that shortly thereafter at 10.55 pm Kraak sent an SMS to a person named Will which said, "Is Beanie Boy in the same house".
The Crown accepted in that context that Tamapua may have been incorrect in stating that after he gave up on Beanie Boy they went to Merrylands, pointing out that it was after the group got to Merrylands when he first spoke to Beanie Boy. It was submitted that this did not significantly undermine his evidence.
The Crown referred to the fact that the next call made by Karimi to his cousin Abdul Karimi was in the vicinity of the meeting point at Merrylands, which was consistent with the evidence of Tamapua that he thought Karimi was on the phone to the person in the white car as they were approaching it: see [197] above.
The Crown referred to the submission by senior counsel for the applicant that it was implausible that the group would have conducted the home invasion at the Burgess house without a firearm if they had known that Mr Burgess had a gun. In that context, he referred to the evidence of Natuba to which I have referred at [126] above to the effect that Karimi said just prior to the Burgess invasion that they could have a shotgun in their house. It was emphasised that Natuba had no prior contact with Tamapua, having joined the group at the request of his cousin Sonny Byquar (see [113] above) and being introduced to Tamapua at the pub. He submitted that this was corroboration of Tamapua's evidence that the shotgun was mentioned at the shop and in the car.
In dealing with the suggestion that had the group been aware that there was a shotgun at the Burgess house, it would have been relatively straightforward to stop off at Villawood whilst driving between Merrylands and Lurnea to obtain a weapon, the Crown rejected the proposition that the group did not do so because the applicant had not authorised the robbery. The Crown submitted that that was inconsistent with the group returning to the shop after the robbery and that there was no suggestion at that time that a serious incident took place without the applicant's authority.
The Crown also submitted that none of the other evidence at the trial was consistent with the job being done without the authority of the applicant. He submitted that the applicant had known Tamapua for only a few days, whilst he had known Karimi since 2009, and submitted that there was "an abundance of other evidence" that illustrated the loyalty that Karimi had to the applicant and showed that it was "highly improbable and implausible" that Karimi would arrange a job without his authority. He pointed out that the applicant on his own case was present when the group returned from the pub and that his evidence that he then went to the Asian shop (see [507] above) was shown to be false.
The Crown also referred to the intercepted telephone calls in which the applicant was involved. He referred first to the telephone conversation between Karimi and Tamapua to the effect that the "older brother" said not to go to the shop (see [514] above), stating that that was consistent with the hierarchy of the group for which he contended.
The Crown then referred to the intercepted telephone call concerning the Miller pools incident to which I have referred at [528]-[534] above. He submitted that although it related to the Miller incident, it gave a contemporaneous insight into how the group functioned, noting that the members of the group, particularly Byquar, waited for the applicant's approval to do the job. He stated that it was also significant that by that time, the applicant was aware of the Burgess murder and it was still "all systems go", and that that was wholly consistent with the applicant directing or authorising all the jobs.
In dealing with the relationship between Karimi and the applicant, the Crown pointed to the fact that Karimi was the person who patted the boys down when they returned to the shop after the first job. He also pointed to Karimi's statement that "Bishop was going to get pissed off because we didn't do it" (see Bautista at [45] above) and to the statement he was said to have made to Tamapua, "We're going to get shot when we get back to the compound because Bishop specifically said to get the Desert Eagle": see [181] above. He submitted that these matters demonstrated that Karimi was promoting the interests of the applicant.
The Crown also pointed out that Karimi assisted the applicant in his drug dealing activities and that he was the one called Trigger because he carried the rifle (see for example Bautista's evidence referred to at [43]-[44] above). He submitted that all the links to the Burgess job were with Karimi. He said that it could not have been Tamapua's job, because they would not have enlisted Karimi's cousin who would not have "coincidentally assisted".
The Crown also referred to the fact that in his police interview Tamapua told the police that he was good friends with Jacob Burgess, something which he said at the trial was a lie. In that context, he referred to the evidence of Jacob Burgess to the effect that he did not know Tamapua, Natuba, Ramos, Byquar or MA (see [404] above) and to the evidence of Mitchell Kearns who said he knew Abdul Wahid Karimi and that he had pointed out to him where Burgess lived and had told him, "This is where I get my pot from": see [22]-[23] above.
The Crown also pointed to the evidence of Kraak. He referred to Kraak's off the record conversation with Detective Inspector Hallinan on 5 July (see the evidence of Kraak to which I have referred at [383] above and that of Detective Inspector Hallinan at [401] above). He noted that although Kraak first said that Tamapua planned the robbery, it was noted that in the same interview he said, "Scheck, Afghan friend of No 4, was inside car but did not go in house. Scheck knew victim. Told group that he had ice and pot at the house. Group discussed a drug rip". The Crown submitted that Kraak could not have heard that from Karimi after the Warwick Farm job failed and could only have heard it in the shop, which he stated provided significant support for the proposition that the job was discussed in the shop in the presence of the applicant.
It was suggested in argument that the reference to Karimi not going into the house demonstrated that the information was supplied to Kraak after the event. The Crown in that context referred to the evidence given by Kraak to which I have referred at [345] above, to the effect that at the shop it was stated that Sonny, Doonside, Mack and another male whose name he did not remember would be doing the job. The Crown submitted that it would be illogical in those circumstances if the conversation occurred after the event.
The Crown submitted that the evidence of Witness A that she spoke to Tamapua for five minutes on the day of his arrest (see [324] above) was not challenged and that it was not put to her that Tamapua told her what to say. He submitted that this was the only limited contact she had with Tamapua prior to the statement she made to the police on 11 July: see [336] above. He emphasised that there was no evidence of any concoction.
The Crown also suggested that if Tamapua wished to shift the blame to the applicant it would be easy for him to say that the applicant did the shooting, but instead Tamapua involved himself from the outset including in the selection of the people who were to do the invasions. I do not think that this submission has any real force. Tamapua admitted that he lied until he realised that the police had something on him: see [223] above. It may well be understandable in that context that he then sought to implicate the applicant as well as to obtain favourable treatment.
The Crown finally referred to Brown's evidence to which I have referred at [67] above. He noted that the video footage showed Karimi putting his arm around her at the Chester Hill Hotel and suggested again that Karimi was "protecting the integrity of the process".

Consideration

Although the principles to be applied in considering whether a verdict is unreasonable are well established, having regard to the nature of the issues raised in the present case it is desirable to set them out in a little detail.
In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 the plurality summarised the principles in the following terms: "[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.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [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'.'" (footnotes omitted)
In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the Court emphasised at [65] the role of the jury as the constitutional tribunal for determining issues of fact. The Court made the following remarks: "[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] 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'." (footnotes omitted)
It was emphasised in Pell v The Queen [2020] HCA 12; 94 ALJR 394 at [43]-[46] that the approach to an unreasonable verdict ground was that stated in the joint reasons in M and the Court must engage with the whole of the evidence to determine whether there was a reasonable doubt as to the applicant's guilt.
It is important that these principles be kept in mind in the present case. Although the jury had the advantage of seeing and hearing the evidence of the principal witnesses over many days, and eventually accepted the evidence of Tamapua not only on the counts the subject of the appeal but on other counts in the indictment in respect of which the verdicts had not been challenged, it is necessary for the Court to consider the evidence for itself and form its own view as to whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. However, the advantage enjoyed by the jury in seeing and hearing the witnesses remains a relevant consideration. To the extent that senior counsel for the applicant suggested that the present case was not a situation where that advantage had any relevance (see [569] above), I am unable to agree.
There is another matter which should be emphasised at the outset. The applicant in his evidence at the trial denied involvement in any of the incidents the subject of the charges. The jury plainly rejected his evidence having regard to the verdicts. However, it does not follow from the rejection by the jury of the applicant's general denial of his involvement in the incidents that he was guilty of the offence the subject of the appeal. For the jury to be satisfied on this ground it was necessary for them to be positively satisfied beyond reasonable doubt that the applicant participated in an agreement in the shop to conduct the home invasion of the Burgess premises with the foresight of the deliberate infliction of grievous bodily harm: Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 at [23] and [57].
The witnesses who supported the applicant's participation in the agreement to carry out the home invasion at the Burgess premises were Tamapua, Witness A and Kraak. None of them could be described as generally credible or reliable.
So far as Tamapua was concerned, he was an admitted liar and perjurer, as well as a person whose occupation before he met the applicant was to carry out home invasions. Further, a common feature of the lies he told was that they were told in an attempt to gain favour with the police and presumably leniency in sentencing for the crimes which he had committed. I have summarised his evidence above. He has admitted that he was involved in home invasions in 2010, his modus operandi being that he waited in the car while the people he had teamed up with undertook the actual robberies: see [210] and [212] above. He agreed that he had lied under oath at his cousin's committal hearing to protect a member of his family: see [219] above. Importantly, he admitted that what he told the police at least in the initial part of his interview of 4 July was a series of lies. I have summarised the cross-examination on these lies at [235]-[253] above (see also [273] above). It is unnecessary to repeat what I have set out there in detail, but it is important to note that in the cross-examination on the first part of the interview to which I have referred at [246] above, Tamapua asserted to the police that the applicant was the "Trigger man" who did the killing, which he admitted was a lie. It should also be noted that in the interview he asked on a number of occasions for something in return for the information he was providing. He also admitted that he had lied to the police in saying that he was a good friend of Jacob Burgess (see [247]-[248] and [252]-[253] above), agreeing that he was trying to get the police to look favourably on him. It should also be noted that it was not in contest at the hearing that the Beanie Boy job was suggested by Tamapua and that his initial statement to the police that the Beanie Boy job was suggested by the applicant was a lie.
I would not have been satisfied beyond reasonable doubt that the applicant was a party to the agreement to do the Burgess home invasion solely on the basis of Tamapua's evidence. It is true that certain parts of his evidence were corroborated, particularly the evidence of Karimi patting the boys down after the Ashcroft job. However, none of the evidence was corroborative of what Tamapua said occurred at the shop.
Further, viewed in isolation there were some objective matters which cast doubt on Tamapua's account. The first is, as senior counsel for the applicant pointed out, that if the home invasion was planned at the shop it was not logical to double back after the Warwick Farm job, but rather, this was consistent with the Burgess job only being agreed after the failure of the Warwick Farm job. There was also force in the proposition that if the conversation at the shop referred to the deceased having a shotgun, it would seem improbable that it was agreed that the participants would go to a house not armed with a firearm where it was believed there was a shotgun, or at least on their return from Warwick Farm not stop at the compound to obtain a firearm. However, if the evidence of Natuba is accepted the group was aware at least immediately prior to the robbery that there was a shotgun on the premises and nonetheless proceeded. The fact that Tamapua remained in the car was consistent with his usual practice in home invasions.
The doubts I have in relation to Tamapua's evidence are not resolved by the evidence of Kraak. His evidence in chief was that he heard Karimi talk about jobs at the shop but did not hear any details: see [344]-[345] above. That can be contrasted with his evidence at the committal hearing to the effect that the principal conversation was at the pub. As I have pointed out at [383] above, it was put to him that in his interview of 5 July he told the police off the record that it was Tamapua who planned the robberies. However, the evidence of Detective Inspector Hallinan was that in the off the record conversation he stated "Scheck, Afghan friend of No 4, was inside car but did not go in the houses. Scheck knew victim. Told group that he had ice and pot at the house. Group discussed a drug rip". The Crown submitted that this was consistent with his evidence in chief that the persons who were to do the jobs were identified at the shop and that Scheck and Tamapua were to go in the car: see [345] above.
Further, in considering Kraak's evidence there are a number of matters which need to be borne in mind. Although in cross-examination he expressly denied that the Burgess job was Tamapua's job, he was involved at the request of Witness A in seeking to ensure that there was no evidence that would link the persons at the Claymore residence to the robbery, including hiding the mobile phone taken from the house of the deceased. Further, there is no doubt that he was a friend of Tamapua's (see [379] above) although he denied that he concocted a story with Tamapua and Ricky (Vergara). In this context, it must be remembered that his version of the events did not deny Tamapua's involvement but rather implicated the applicant in the events as well.
Finally, the evidence given by Kraak disclosed that he was a person of very little credibility. I have set out some of the lies which he admitted he told at [379]-[380] and [386] above. Although I have not set all of the lies out. he also lied about his intention to go to Queensland, admitted that his explanation about particular telephone calls and SMS messages, which defy credibility, were "lots of lies or bullshit … whatever you want to call it", and he admitted that he lied to his brother in stating that the police were investigating him in relation to 67 robberies.
Witness A falls into a somewhat different category. Once again, there were matters which cast real doubts on her credibility. First, she admitted that she lied to the police when she stated that the applicant threatened her, agreeing that she said that because she wanted him arrested: see [300] above. She also gave inconsistent evidence as to her knowledge of Tamapua's criminal activities: see [300]-[302] above. Further, her evidence about her communications with Kraak while she was outside the police station is difficult to accept. It seems to me that at that stage she was seeking to do what she could to cover up evidence of Tamapua's involvement, including telling Kraak to get rid of the phone, something she continued to deny in the face of relatively clear evidence: see [305] and [307]-[308] above. That she was seeking to conceal Tamapua's involvement is consistent with the SMS she sent to Kraak after Tamapua had signalled to her while she was outside the police station: see [311]-[312] above. Her evidence that she had nothing to do with drugs is implausible having regard to her SMS to Kraak to which I have referred at [360] above.
However, it is important to note that Witness A gave relatively clear evidence that the Lurnea job was mentioned at the shop: see [289] and [305] above. She qualified that to some extent by saying she never heard about Lurnea properly until after it happened but was adamant that the conversation to which she deposed occurred: see [323] above. She denied that she made up the conversation subsequent to getting Tamapua's brief. In that context, she gave evidence of the statement she made to the police on 11 July to which I have referred at [300] and [305] above.
It must be remembered that it was not put to Witness A that she made up the story prior to Tamapua's arrest. Further, there was no evidence to contradict the suggestion that Witness A had no other contact with Tamapua between the time of his arrest and the time of her statement than the five minutes at the police station to which she referred in the portion of her evidence which I have set out at [324] above (preferring her evidence to that of Detective Senior Constable Cragg who said that she had no contact at all). In those circumstances, the evidence of Witness A does provide support for Tamapua's version of events notwithstanding the various lies she told and her attempt to deflect responsibility for the murder from Tamapua.
There remains the evidence of Natuba, who was recruited on the day of the murder and who stated that it was his understanding when he got into the car outside the shop that there was only to be one job although he did not know where it was going to be: see [122] above. However, in his evidence in chief he did not give any evidence of the conversations which he said gave rise to that understanding. Further, his evidence as to who instructed him to do the jobs was contradictory. First he said that he did not have a clear recollection of who it was who was telling people who were to do the jobs: see [121] above. He stated that after he got into the Tarago after the Warwick Farm invasion he fell asleep and the next thing he remembered was that they were at the side of the road at Merrylands and Scheck (Karimi) had got into another car with a person who had not been in the Tarago. He said that before he went to sleep, he could not recall anyone saying, "Hey, how about we do another job". He denied that Tamapua said to him and the rest of the boys, "I have an idea. We have another house I have got in mind we can knock over". However, he said that "Somebody told me but I knew from there". He then said that Scheck told him to "grab drugs, money, and could have a shotgun in the house so try and get that too" (see [125]-[126] above). He finally said that his statement to the police that Tamapua said "Do you want to do another job?" was his recollection of events and that shortly after that he went to sleep (see [133] above).
There are a number of matters which must be considered in dealing with Natuba's evidence. I have summarised his evidence at [91]-[146] above. That summary and what I said in the immediately preceding paragraph demonstrates his unreliability. In that context it must be remembered that he admitted he was drunk on the day in question, having had four or five schooners of beer at Doonside followed by three longnecks of rum and coke: see [128] above. He also stated that he had had three schooners of beer in 15 minutes at the Chester Hill Hotel. Whether or not his statement that he "still kind of, kind of knew what I was doing" was accurate, that fact coupled with the evidence he gave demonstrates his unreliability.
In these circumstances it seems to me that the evidence of Tamapua, Witness A and Kraak taken in isolation was not capable of satisfying the jury beyond reasonable doubt that the applicant participated in the agreement which led to the Burgess killing. However, there are a number of other matters which must be taken into account.
First, there is nothing to suggest that Tamapua had any knowledge that would cause him to form the view that there could be drugs, money and a shotgun at the Burgess house. The evidence of Jacob Burgess was that he had never seen Tamapua before he saw him at court. Tamapua himself admitted that he lied when he told the police that he was a mate of Jacob Burgess.
Second, all the witnesses were consistent in saying it was Karimi who said that there were drugs in the house: in relation to Natuba see [126] above, in relation to Tamapua see [194], in relation to Witness A see [289] above, and in relation to Kraak see [401] above.
In addition, there was the evidence of Mitchell Kearns that he told Karimi's cousin where Jacob Burgess lived and that that was where he got his pot: see [23] above.
In considering the evidence of Jacob Burgess that he did not know Tamapua, and having regard to the statements of witnesses as to what was said by Karimi, it was open to the jury to be satisfied beyond reasonable doubt that Tamapua did not suggest the job.
That is by no means the end of the matter. The fact that it was open to the jury to find that the Burgess invasion was suggested by Karimi does not lead to the conclusion that the applicant participated in the agreement to do the invasion. However, in that context the timeline provided by the Crown (the accuracy of which was not disputed) is of particular relevance.
The first thing to note is that calls were made by Karimi to his cousins prior to the Warwick Farm invasion but after the Tarago had left the shop to go to that location. The next call from Karimi to his cousin was at 11.08 pm, three minutes before the Tarago and the Toyota Echo were observed at the Woodville Road service station at Merrylands. It follows that the agreement to meet Karimi's cousin must have occurred prior to the Warwick Farm invasion, either at the shop or on the way from it to Warwick Farm.
It seems to me unlikely that in the few minutes after the departure of the Tarago from the shop and the first call by Karimi, Tamapua and Karimi formulated a plan to carry out the Burgess home invasion. There was no evidence from anyone including Natuba to this effect. The only matter that could provide support for the contrary proposal is that if the invasion was planned at the shop there was no reason why Karimi could not have called his cousins whilst he was there rather than in the car.
However, in considering these matters the role of the applicant in the offences which occurred between 30 June and 3 July must be considered. It was not disputed that the jury was entitled to be satisfied beyond reasonable doubt of his guilt of the offences which are not subject to this appeal. Having regard to the evidence in respect of counts 1-3 and 5, it is clear that he directed that those robberies were to take place and participated in the agreement to do the Beanie Boy invasion. Further, he was exercising a degree of control over the events that gave rise to the Miller pools incident. I have summarised some of the calls made in respect of this incident at [528]-[531] above, which in my opinion make it clear that he was one of the directing minds if not the directing mind of that operation.
It is also important to bear in mind the applicant's relationship with Karimi. The applicant accepted that he had known Karimi since 2009 (see [475] above), although he denied that he was one of his trusted persons: see [519] above. He was described by Karimi as "the older brother" (see [514] above) and that he arranged for Karimi to deal drugs for him: see [527] above. In those circumstances the jury was entitled to find that Karimi would not have organised the job without the applicant's involvement.
The events at the shop further support the applicant's involvement. The group met at the shop after returning from the Chester Hill Hotel. The jury was entitled to reject the applicant's evidence that he was not at the shop when the group returned from the pub, particularly as the Asian shop which the applicant said he went to was closed at that time: see [537] above.
Further, on the group's return from the Burgess home invasion, the evidence of each of Natuba, Tamapua and Kraak was that the applicant directed the injured Natuba to be taken to Bankstown Hospital rather than Liverpool Hospital: see [109], [201] and [348] above. Witness A also said that someone said to take Natuba to Bankstown Hospital but did not identify the person: see [291] above.
In addition, the events after 1 July provide some further confirmation of the applicant's involvement. First, the telephone intercepts reveal that he telephoned Karimi on 2 July asking if he had "gotten rid of anything": see [520] above. The jury would be entitled to reject his evidence that that related to ice and to accept that he was in fact referring to anything to do with the robbery. Further, the Jim Beam tin found at the shop had the applicant's fingerprints on it (see [276] above) and DNA consistent with that of the deceased: see [411] above. Finally, one of the meat cleavers located at the Ingleburn warehouse occupied by the applicant had DNA consistent with that of the deceased: see [34] above.
To this evidence there can be added Brown's evidence of the conversation she had when she picked up Mir after the Burgess invasion. She stated that Mir told her he went with a group of people to stop a guy from dealing weed and they got into a fight, and that when she asked why they did it Mir responded that that person was not dealing for the person who runs the area: see [69]-[71] above. It would be open to the jury to conclude that the reference to the person who runs the area was a reference to the applicant, a matter which lends further support to the conclusion that he participated in the agreement to undertake the invasion.
These matters provide powerful support for the evidence of Tamapua, Witness A and Kraak that the applicant actively participated in the decision to carry out the Burgess invasion. In these circumstances, notwithstanding the reservations I have in relation to the evidence of Tamapua, Witness A and Kraak, it was open to the jury in the sense described in the authorities to be satisfied beyond reasonable doubt that the applicant was guilty of the charges the subject of the appeal.

Conclusion

In the result I would make the following orders: 1. Extend the time for the applicant to file a notice of appeal up to 12 November 2019. 2. Grant the applicant leave to appeal. 3. Appeal dismissed.
HOEBEN CJ at CL: I agree with the Chief Justice and the orders which he proposes. I also agree with the additional observations of Beech-Jones J.
BEECH-JONES J: The evidence adduced at the trial is summarised in detail in the judgment of Bathurst CJ. His Honour has also identified the principles applicable to the sole ground of appeal which I gratefully adopt.

Crown Case

To address the ground of appeal it is necessary to explain how counts 6 and 8 related to the other parts of the Crown case as accepted by the jury, bearing in mind that there is no challenge to the applicant's convictions on all the other counts noted below.
The applicant was a drug dealer principally supplying methylamphetamine (or "ice") in South Western Sydney. He was assisted by Mohammed Karimi. The applicant and his girlfriend Aimee Walsh resided in a bedsit in Villawood (the "compound"). Ray Tuki resided in an adjoining flat, was friendly with the applicant and participated in some of the offences. The applicant had also leased a shop in Chester Hill (the "shop") which was ostensibly used to sell a variety of goods, including meat cleavers. A gang established by the applicant, the United Brothers or United Brotherhood, operated from the shop.
In June 2010 the applicant met Anaterea Tamapua when the applicant attempted to stand over another drug dealer. Tamapua intervened on the drug dealer's behalf. Sensing an opportunity, the applicant recruited Tamapua and some of his associates to shut down the activities of competing drug dealers (R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 at [31]; "No 11").
On 28 June 2010, Tamapua attended the compound with Richard Vergara, John Bautista, David Ramos and others. Ramos was in possession of his family's Tarago van (the "Tarago"). The applicant was present at the compound with Karimi, Tuki and Walsh. At some point, someone referred to as "Harry" arrived with another vehicle. (There was evidence suggesting his identity was Harry Marache, a friend of the applicant.) He was introduced as the person who would take the group to the address of a rival dealer, James Stiff, in Ashcroft. The applicant gave Karimi a shortened .22 rifle. The would‑be assailants left in two vehicles, with the applicant remaining at the compound. The attack was called off when "Harry" received a call advising that the dealer was not at the Ashfield address (No (11) at [39]).
On 29 June 2010, Tamapua returned to the compound where the applicant, Karimi, Tuki, Walsh and others had gathered (No (11) at [42]). According to the Crown, the applicant instructed Tamapua and the others to raid the premises of a relative of a former girlfriend, Ernesto Bertolli, to steal firearms. Ramos drove Karimi, Tamapua and others to the target location in the Tarago, with the applicant remaining at the compound. Karimi remained in the vehicle while Tamapua and others attempted to raid the house, but no-one was home. This conduct constituted count 1 on the indictment.
According to the Crown, upon their return the applicant instructed the group to carry out the raid on the Ashcroft address that was previously attempted on 28 June 2010. Ramos drove the Tarago with Karimi, Tamapua, Vergara, Bautista and others. When they arrived at the Ashcroft address, Vergara, who was armed with a machete, Bautista and two others invaded Mr Stiff's home. Mr Stiff was struck with the machete and the rest of his family was terrorised. The raiding party returned to the compound. The conduct of this home invasion constituted count 2 on the indictment.
Just after 6.00 pm on 1 July 2010, Tamapua, Vergara, Thomas Byquar and two others gathered at the shop. At the request of the applicant, Byquar contacted his cousin, Tomasi Natuba, by telephone and persuaded him to join the United Brothers or United Brotherhood. Natuba travelled to the Chester Hill Hotel which was near the shop to meet Tamapua, Karimi, Byquar and others. The conduct of the applicant in causing the recruitment of Natuba to carry out criminal activity constituted count 4 on the indictment.
By around 9.45 pm this group had left the Chester Hill Hotel and returned to the shop to meet the applicant and others. The Crown contended that two home invasions were discussed and approved by the applicant at this time. According to the Crown, one of the raids was suggested by Karimi, namely the "Jacob Job", being a reference to Jacob Burgess who lived with other members of his family, including his brother Kesley Burgess, at Lurnea. In addition, Tamapua suggested an attack on a drug dealer known as "Beanie Boy" at Warwick Farm. The Crown contended that the applicant approved both raids and decided that the new recruits, being Natuba, Byquar, as well as Mahdi Mir and a 17-year-old male ("MA") would travel with Tamapua and Karimi and then enter the targeted homes.
At around 10.27 pm on 1 July 2010, the Tarago left the shop. It was driven by Ramos with Tamapua, Karimi, Natuba, MA and Byquar seated inside (No (11) at [91]). Ramos drove to Warwick Farm where Tamapua pointed out what he believed was the residence of "Beanie Boy". Byquar, Mir, Natuba and MA left the van, each armed with a meat cleaver. In fact, the residence was not that of "Beanie Boy" but of Maxine Rogers and her two young daughters. The assailants terrorised Ms Rogers by holding a meat cleaver to her throat and stole a computer. At some point they realised their mistake and returned to the Tarago. The applicant's conduct in directing this raid constituted count 5 on the indictment.
According to the Crown, Karimi told the group they had to travel to Merrylands, or more precisely Wallace Street Granville, to collect his cousin whom he said knew the address for the "Jacob Job". The Tarago stopped near Wallace Street. Karimi and Tamapua alighted and entered a white two door Toyota Echo (the "white Toyota") which had parked nearby and was driven by Karimi's cousin, Abdul Wahid Karimi. At about 11.11 pm, the two vehicles pulled into a service station at Merrylands and Karimi organised for the Tarago to follow the white Toyota. The vehicles arrived at Lurnea at around 11.36 pm. A security camera from a home near to the address of the "Jacob Job" recorded the arrival of the two cars.
Karimi spoke to the four assailants in the Tarago, that is Byquar, Mir, Natuba and MA. He told them what house to enter, that they should grab drugs and money and warned that there may be a shotgun in the premises. The mayhem that ensued is described in the judgment of Bathurst CJ. It suffices to state that Jacob Burgess had left the home before the invasion but his brother, Kesley, was hacked to death with meat cleavers in front of his mother, Tracey Burgess, and his girlfriend. Both Natuba and Byquar were injured in the attack. Tracey Burgess' handbag was stolen. The conduct of the applicant in procuring the home invasion that led to the murder of Kesley Burgess and the armed robbery of Tracey Burgess constituted counts 6 and 8 on the indictment. The applicant was said to be criminally responsible for the murder of Kesley Burgess by the operation of the doctrine of extended joint criminal enterprise.
The two vehicles returned to the shop. According to the Crown there was a discussion about arranging for Natuba to attend Bankstown Hospital and provide a false story about how he was injured, as well as further raids. As events transpired the police attended at Bankstown Hospital at the same time for an unrelated reason but spoke to Natuba about his injuries. Natuba provided a false account. He was interviewed again at around 4.00 pm on 2 July 2020 and co-operated with the police. As a result, the police commenced surveillance on the applicant, Tamapua and others.
On the evening of 3 July 2010, Byquar and another recent recruit, John Unasa, attended a cultural event at the Michael Wenden Aquatic Centre at Miller. Some form of confrontation occurred which appeared to involve a rival group waiting outside the centre with the intention of harming Unasa when he left. Byquar was intercepted by police making a series of calls to request that the various members of the United Brotherhood assemble with weapons ("knives, guns or anything") (No (11) at [146]). Just after midnight, Byquar spoke to the applicant and told him "I'm ready to fucking kill these cunts, bro". The applicant responded "Yeah, all right, no worries. That's all good" (No (11) at [153]). [1] At around 1.15 am, police stopped a vehicle in Miller carrying Tuki, Tamapua, Karimi and Vergara. Located in the vehicle was a machete in a sheath, a knife and a shortened .22 calibre rifle. James Stiff's DNA profile was found on the machete and the applicant's DNA was found on the rifle (No (11) at [160]). About ten minutes later, the applicant and Byquar spoke on the telephone querying the whereabouts of the would‑be raiders. The conduct of the applicant in joining in an agreement to murder a member of the rival group that had threatened Unasa was the basis of the conspiracy to murder that was count 9 on the indictment. This incident was generally referred to as the "Miller pool incident".

Defence Case

As noted by Bathurst CJ, [2] the applicant gave evidence at the trial denying any involvement in the incidents the subject of the charges. The jury clearly rejected that account comprehensively. The rejection of his evidence does not bolster the Crown case. Equally, giving proper allowance for the jury's advantage in having heard and seen his evidence means that it plays no part in any assessment of the attack on his conviction on counts 6 and 8.

The Trial and the Conviction on Counts 6 and 8

The applicant stood trial along with Karimi and Mir. Like the applicant, both Karimi and Mir were found guilty on all counts that concerned them, including the murder of Kesley Burgess. Each of Tamapua, Natuba and Bautista gave evidence for the Crown. The Crown also called Tamapua's partner, Witness A and Shane "Toby" Kraak. Kraak was a housemate of Tamapua and Witness A. Kraak gave evidence after receiving a substantial discount on his sentences for unrelated armed robbery offences.
Although the charges concern a veritable crime spree, as noted by Bathurst CJ the issue raised by the appeal is a relatively narrow one. The applicant asserts that the jury could not (properly) be satisfied beyond reasonable doubt that he was a party to any agreement to conduct a home invasion at the residence of Kesley Burgess and Tracey Burgess and therefore he was not party to the joint criminal enterprise that was essential to the Crown case on counts 6 and 8.
The Crown case was that the applicant participated in that agreement by his giving approval for the two home invasions, one being the "Jacob Job" that Karimi suggested, and the other being the attack on the home of "Beanie Boy" said to have been suggested by Tamapua. This approval was said to have been given at the meeting at the shop on the evening of 1 July 2010 after the gathering at the Chester Hill Hotel. Tamapua gave evidence to this effect. [3] Natuba, who only just joined the group, stated that he could not recall the applicant taking part in the discussions but did recall him distributing knives to the assailants. [4] Bautista recalled the applicant talking during the meeting. [5]
Witness A was also present at the shop on the evening of 1 July 2010 when the assailants gathered in the presence of the applicant. Her evidence is described by Bathurst CJ. [6] Relevantly, Witness A said that Tamapua "was talking about doing a house in Warwick Farm and Scheck [Karimi] was talking about a house in Lurnea", that Karimi mentioned the presence of "coke, ice and 15 grand" and that "Bishop" (ie, the applicant) said "[h]e needs the money". [7]
Kraak was also present at the shop at this time. His evidence is summarised by Bathurst CJ. [8] Relevantly, he said that "Bishop [ie, the applicant] and Tera [ie, Tamapua] were organising who was to go and do the actual jobs along with Scheck [ie, Karimi]" [9] and that it was Karimi who suggested the "Jacob Job" ("[a]ll I remember Scheck saying was, 'I have another address to do'" [10] ).
The written and oral submissions made on behalf of the applicant pointed to numerous credibility issues affecting all these witnesses. These are reflected in Bathurst CJ's review and analysis of their evidence. Allowing for those matters and leaving aside Natuba's evidence, there was an overall consistency in their versions about who was in charge, who suggested the various jobs and that the applicant approved them.
In any event, any reasonable doubt that might attend a conviction which simply rested on the oral evidence given by these witnesses of or concerning the meeting at the shop dissipates when their evidence is considered in light of all the evidence and the logic of events. The Crown pointed to evidence adduced from a number of the above witnesses to the effect that it was the applicant who was the directing mind of the gang, that Karimi took direction from him and the applicant either directed or at least approved of the carrying out of all the various crimes committed in the relevant period and who would undertake them. [11] This evidence was supported by the telephone intercepts that were obtained after Natuba began to co-operate with police. They included a conversation on the evening of 2 July 2010 in which Tamapua deferred to the applicant. [12] Otherwise, the telephone intercepts referable to the Miller pool incident reveal a modus operandi consistent with the Crown case on counts 6 and count 8 namely the applicant organising the raiding party and despatching them from premises he controlled but not accompanying them.
The Crown also pointed to evidence from Jacob Burgess that he had few dealings with Tamapua. [13] This suggested that it was inherently unlikely that Tamapua suggested the "Jacob Job".
One matter pointed to by both parties concerns the journey taken by the Tarago on the evening of 1 July 2010. It departed from the shop at Chester Hill just before 10.30 pm and travelled south west to Warwick Farm. It then travelled north east to Granville and Merrylands to meet Karimi's cousin. In company with the white Toyota, it travelled south west again past Warwick Farm to the Burgess house in Lurnea. In oral submissions, Senior Counsel for the applicant, Mr Game SC, submitted that it "beggars belief" that if the Lurnea location for the "Jacob Job" had been mentioned at the shop that the Tarago would have driven to Warwick Farm then to Granville and then back past Warwick Farm to Lurnea. [14] I disagree. The meeting point at Granville may have been a place well known to Karimi and his cousin. It seems that Karimi wanted his cousin present to identify the precise location of the "Jacob Job" in Lurnea.
Further, the journey taken by the Tarago should be considered in conjunction with the chronology in Annexure B. The chronology reveals a telephone conversation between Karimi and one of his cousins, Mahdi Karimi, at 10.39 pm that lasted 89 seconds, a conversation between Karimi and another cousin, Abdul Wahid Karimi, at 10.41 pm that lasted 19 seconds and a further conversation between those two at 11.08 pm that lasted 6 seconds at or just prior to the arrival of the Tarago at the petrol station on Woodville Road. Thereafter, Tamapua attempted to contact "Beanie Boy" while the convoy was proceeding to the Burgess home at Lurnea.
The applicant's submissions contended that, inter alia, the evidence raised a reasonable possibility that the attack on the Burgess home was carried out at the instigation of Tamapua and Karimi without the knowledge or approval of the applicant. In particular, the applicant contended that it was only after the attempt to locate "Beanie Boy" failed that attention turned to an attack on the Burgess home. [15] The submissions pointed to the telephone conversation at 11.08 pm between Karimi and his cousin. The submissions contended that it was open to conclude that the driver of the white Toyota was a relative of Karimi who directed the group to the Burgess home. [16]
The principal difficulty with this submission is that it overlooks the telephone contact between Karimi and his cousin that took place prior to the attack at Warwick Farm and the brevity of the telephone contact that occurred between them through the night. It can be accepted that the Tarago met the white Toyota at Granville for the purpose of Karimi's cousin taking them to the Burgess home. However, that is suggestive of Tamapua not knowing where the Burgess home was, which in turn means it was less likely he suggested the "Jacob Job" in the first place. The telephone call between Karimi and his cousin at 11.08 pm lasted for only six seconds and was consistent with Tamapua's evidence that, as they met up with Karimi's cousin, Karimi was at the same time talking to him on the phone. The absence of any call between Karimi and his cousin between 10.45 and 11.08 pm suggests that the proposal to meet at Granville to travel to Lurnea had been agreed upon prior to the Warwick Farm home invasion going wrong. This evidence rebuts any suggestion that the plan to attack the Burgess home in Lurnea was only formulated after the attack on "Beanie Boy" failed. The fact that Tamapua was still attempting to contact "Beanie Boy" while the Tarago travelled to Lurnea, is consistent with the idea of attacking him being Tamapua's suggestion. The telephone contact between Karimi and his cousin is very much consistent with the "Jacob Job" not being Tamapua's suggestion. Given the evidence that Karimi acted under the direction of the applicant it follows that this evidence points strongly in favour of the Crown case that the applicant approved the attack. When that is combined with the oral evidence, proof beyond reasonable doubt was established.

Conclusion

Having considered the evidence of Tamapua, Natuba, Bautista, Witness A and Kraak in the context of all the other evidence and the chronology of events, I reach the same conclusion as Bathurst CJ (at [627]). I agree with the orders that his Honour proposes.

Khoury v R Annexure A (80078, pdf) Khoury v R Annexure B (88283, pdf)

Endnotes

AB 1187; Ex DA, 4 July 2010 00:11:25 at p 3.
See at [600].
See [193] to [194].
See [98].
See [42].
See [278] to [336].
See [289]; T 2255-6.
See [337] to [388].
T 2542.
T 2547.25
See [45] to [46] - Bautista; [170] -Tamapua; [344] to [345], [355] - Kraak; [390ff] - Unasa.
AB [1092].
See [404] - Jacob Burgess; [206], [247] - Tamapua; [376] - Kraak.
Appeal T 27/05/2020 at p 14.41.
AWS at [167].
AWS at [174]. 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: 10 February 2021

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