R v Andrew Iskandar & R v Nita Iskandar

The facts 2I find the following facts. Those facts which are found against the offenders have been found by me to be beyond reasonable doubt, and those in their favour on the balance of probabilities. 3Nita Iskandar and Hazairin Iskandar were born in Indonesia. They were married in 1984 and moved to Australia some three months later. The marriage appears to have been an arranged marriage. There was only one child of the marriage being Andrew Iskandar. Andrew was born in Sydney on 16 May 1990. He was, therefore, 19 at the time of the offence. The family have lived at Croydon since about 1984. 4Hazairin worked as a taxi driver and Nita came to work as a clerk in the Malaysian Consulate in Sydney in 2000. The marriage was not a particularly happy one. There is conflicting evidence about whether Hazairin behaved violently towards Nita but, if he did, it seems to have been of a relatively minor nature. Nita told the Clinical Psychologist, Terry Smith, that the marriage was a loveless one on her part because her husband could not communicate nor consider her relationship needs. She said he was very controlling in all aspects of her life. She said, however, that she believed he loved her. 5The Deceased Mohd Shah Saemin (known as Shah) commenced employment with the Malaysian Consulate in 2006. He had a second job driving buses to and from the Airport. By early 2008 he and Nita appeared to have commenced having an affair. In the middle of 2009 Nita apparently requested a divorce from Hazairin but he refused because he still loved her. Hazairin was aware of the affair she was having and confronted the Deceased about it. 6It appears that the affair became reasonably public within the Indonesian community in Sydney. 7The Crown alleged a joint criminal enterprise between Hazairin and Andrew in relation to the killing of the Deceased. There was, undoubtedly, such a joint criminal enterprise and, as I shall make clear, such an enterprise was in existence by no later than the evening leading up to the death of the Deceased. What is more difficult to determine is precisely when, before that evening, the enterprise commenced. The evidence makes clear that Hazairin had set things in train to take some action against the Deceased at least a week before when he hired a rental car, but when Andrew became privy to and involved in what Hazairin seems to have planned is unclear. 8On 14 February 2010 Hazairin and Andrew went to the Kings Cross Branch of Budget Car Rentals. Hazairin effected the hiring of a car whilst Andrew sat on one of the chairs in the office. Hazairin was asked by the Budget representative if Andrew was to be an additional driver, but Hazairin said that Andrew was his son and that he was too young. 9At some time during the following week Hazairin and Andrew went in the rental car to the vicinity of the Malaysian Consulate in Woollahra. They parked the car in such a position that they could observe people and vehicles leaving the Consulate. Andrew took a photograph on his mobile phone from the front passenger seat of the car. The photograph depicts his father in the driver's seat, and the front of a property with a distinctive object on its front fence, probably only 100 metres from the Malaysian Consulate, can be seen in the background. 10Andrew claimed that he took this photograph because his father had taken him for a driving lesson and was showing him how to reverse park. The photograph, he said, was to enable him to see where, as a driver, he should be looking when he was reverse parking. This explanation for Hazairin and Andrew's presence at this location and the photograph must be rejected for a number of reasons. First, when the Iskandars lived at Croydon it is difficult to understand why Hazairin would give Andrew a driving lesson in Woollahra unless they were there for some other reason. Secondly, the car was a rental car and Andrew was not entitled to drive it whether because he was not approved as an additional driver or because he was a learner. Thirdly, contrary to Andrew's evidence, the photograph does not show Hazairin looking in the position Andrew described as demonstrating a reverse park. 11I find that the purpose of the presence of Hazairin and Andrew in the vicinity of the Malaysian consulate on that day was to spy upon either the Deceased or Nita or both of them. That finding necessarily carries with it the conclusion (which I also find) that at that time Andrew knew that his mother was having an affair with the Deceased. There is not sufficient evidence to find, however, beyond reasonable doubt that there was a joint criminal enterprise at that time to kill the Deceased or commit grievous bodily harm upon him. 12During the late afternoon and evening of 21 February there were a number of telephone calls and/or text messages passing between Andrew and Hazairin including a text message from Andrew to Hazairin which simply said "?". The Crown case was that this text concerned the planned murder and an enquiry from Andrew to Hazairin when it was to happen. It is not possible to reach a concluded view about what that message meant. 13Andrew and Hazairin left their home at some time late on the night of Sunday, 21 February 2010 in the rental car. They were both wearing similar clothing being dark hooded jackets. In the car was a knife and a hammer, possibly a crowbar and possibly a tool box. Andrew's explanation of how those implements were in the car was that Hazairin's taxi had broken down in Arncliffe on 20 February, Hazairin had rung him to say he needed Andrew to accompany him to help fix the taxi, Hazairin had then travelled to Croydon, put the tools in the rental car, taken Andrew with him in the rental car to the taxi, fixed the taxi with no help from Andrew, and then they had driven home in the taxi leaving the rental car in Arncliffe which Hazairin later retrieved. The explanation was that the tools must have been left in the rental car from that time. Andrew said, however, that he did not know any of the tools were in the car until the altercation with the Deceased began. I do not accept this account of how the weapons came to be in the car. I find that Andrew knew they were in the car before he and his father left home that night because they intended to use them on the Deceased. 14They drove over to the vicinity of Cromwell and Marion Sts in Leichhardt to wait for the Deceased to arrive home from his night job as an airport bus driver. When the Deceased arrived in that vicinity he parked his car on the western side of Cromwell St a short distance north of an electricity utility box. 15Either immediately before, or at the same time as, the Deceased alighted from his car, Hazairin drove the rental car at the Deceased's car and hit it at the rear. Thereafter both Hazairin and Andrew alighted from the rental car. Hazairin had a knife and Andrew had a hammer. They proceeded to assault the Deceased. The Deceased ran in a south-easterly direction towards Marion St passing close to the eastern corner of Cromwell St where it adjoins Marion St. He then ran across Marion St in a diagonal fashion in a south-easterly direction towards his house at number 2/24 Marion St. Hazairin and Andrew chased him. 16At the time the Deceased parked his car he was speaking on his mobile phone to Nita Iskandar. She heard the crash when Hazairin drove into the Deceased's car. She heard the Deceased cry out for help. The phone line remained open during the time the Deceased ran across the road because at one point Nita heard a woman's voice screaming out something about a hammer. That voice must have been the voice of Nada Bailey who came upon the scene where Hazairin and Andrew were attacking the Deceased. 17Nada Bailey was walking down Marion St from Norton St on the southern side. As she approached the intersection with Cromwell St she saw three men who were running across Marion St from the direction of Cromwell St. The two men on either side of the man in the middle appeared to be kicking him very hard. The man in the middle was trying to get away. He ran over towards Ms Bailey, and he was calling out "help, help me". She said the man tripped over the gutter as he approached her, and he fell to the ground outside number 28 Marion Street. She noticed his shirt was all wet. 18She shouted to the other two men to leave him alone but they continued to run after him. When he fell she tried to cover him with her body but one or both (she was not sure) of the two attackers kicked her out of the way into the gutter. One of the men was bashing him with a hammer like bashing a piece of meat. The other man stood to one side holding a small black object like a small bar. I am satisfied from other evidence that this object was the knife used to stab the Deceased. 19Whilst this was happening Janine Cahill was walking down the southern side of Marion Street. She saw what she thought at first were two men running across Marion St from Cromwell Street. As she continued walking she saw two men attacking a third man who was on the ground. She also saw Ms Bailey trying to protect the man on the ground. When she was about level with 18 Marion Street she rang 000 and asked for the police. She then yelled at the attackers telling them she had rung the police. She saw one of the men striking the Deceased very hard with a weapon a number of times. Then the two men ran off in the direction of Cromwell Street. 20The police were first notified at 11.53pm and arrived at the scene a short time afterwards. In the meantime Ms Cahill was performing CPR on the Deceased but she thought he was dead. Constable Hickey took over performing CPR until the ambulance arrived within minutes. The Deceased was pronounced dead at 12.05 am. 21The police had noticed the Deceased's silver Volvo in Cromwell St with the door open. Nita Iskandar later told Constable Hickey that it looked like the car the Deceased drove. Inspection of that car and its surrounds determined that it was the Deceased's car. It was damaged at the back where it had been struck by the rental car driven by Hazairin. A clump of what turned out later to be the Deceased's hair was found, and there was a trail of blood leading from that car across both Cromwell and Marion Sts. The police also located a hammer lying on the ground near the car. That hammer was later found to contain the DNA of Andrew Iskandar. 22The Post Mortem report makes it clear that the Deceased was both struck with a weapon consistent with being a hammer, and stabbed with a long-blade knife. The cause of death was a stab wound to the chest area which pierced his Vena Cava, the main vein carrying blood back to the heart. I find that it was Andrew Iskandar that struck the Deceased repeatedly with the hammer but it was Hazairin who stabbed him. 23Andrew gave evidence which can be summarised as follows. His father took him out on the night of the killing for a driving lesson in the rental car. After they ate dinner at about 11.00 pm at an Indian restaurant in Marion St, his father drove the car round and round in Leichhardt and then they parked in Cromwell St. When the Deceased arrived and parked his car in Cromwell St a short distance in front, Hazairin drove into it. Hazairin then alighted from the rental car and told the Deceased not to "walk with my wife again". The Deceased, after verbally abusing Hazairin, then physically attacked him. Up until this time Andrew had repeatedly asked his father what he was doing driving around, parking and crashing into the Deceased's car, but Hazairin told him to be quiet. Andrew then alighted from the car to go to his father's assistance. At one point his father handed him a hammer from the car and when the Deceased started punching Andrew Hazairin told Andrew to hit the Deceased with the hammer. Andrew did so once, striking him on the forehead, and then he dropped the hammer. 24Hazairin then tried to get something from the toolbox in the back of the rental car but the Deceased slammed the door on Hazairin's arm, dislocating it. 25The Deceased then ran across towards the flats on the corner of Cromwell and Marion Sts, and thereafter across Marion St. Hazairin chased him with Andrew following 15 metres behind. Then Andrew observed the Deceased lying on the ground. Hazairin was holding a knife in his left hand and a hammer in his right hand. He saw his father stab the Deceased with the knife and hit him with the hammer. Andrew was standing back holding a crow bar. While he was standing there a woman (who must have been Nada Bailey) came onto the road and pushed him. He then ran back to the rental car. 26The jury must have rejected this account of the events. I find, beyond reasonable doubt, that it is false. As to the events on the southern side of Marion St, the account is not only inconsistent with the evidence of Nada Bailey and Janine Cahill, but also of other witnesses who saw the events from vantage points in surrounding properties. It is also inconsistent with what Andrew Iskandar said to Victor Lau the following morning when he endeavoured to get him to agree to give a false alibi, and with what he told Esau Maiava in prison. 27Although Mr Maiava's evidence must be treated with some care I am satisfied beyond reasonable doubt that Andrew told Mr Maiava that he and his father planned to kill the Deceased, that they had to wait until they knew when the Deceased arrived home from work, that they went to the vicinity of the Deceased's house on the night in question to await his arrival, that when he arrived home Hazairin drove into the Deceased's car, that the Deceased got out of his car to run away, and that both Hazairin and Andrew attacked and killed him, Hazairin with a knife and Andrew with a hammer. I accept that Andrew told Mr Maiava that he did it because his mother was having an affair and he couldn't handle that fact. I accept that Andrew told Mr Maiava he intended to beat the case by blaming it all on his father. 28I accept this evidence of Mr Maiava for a few reasons. First, the detail of it is such that it could only have been told to him by Andrew. Secondly, Mr Maiava made a contemporaneous note in his diary of the substance of what he said Andrew told him. Thirdly, some parts of it including Andrew's concern over his mother's affair and that he and his father acted jointly is corroborated by what he said to Mr Lau when trying to get him to provide a false alibi - that is, "me and my dad killed some guy...we chased him...we crashed his car ... smacked him with a hammer and a knife". 29The concern Andrew expressed to Mr Lau and Mr Maiava about his mother's affair was also consistent with evidence Andrew gave, that it was Andrew's religious belief that someone committing adultery is a big deal for someone from an Islamic perspective, that it was a terribly shameful thing from an Islamic point of view, that the woman involved was doing the wrong thing, and that the man should not be doing it. 30I find that by no later than when Andrew and Hazairin left home that night they were engaged in a joint criminal enterprise to kill the Deceased. Their motive in doing so was to punish him for being in a relationship with Nita Iskandar. It is clear from the evidence of Mr Lau and Mr Maiava that the planning must have preceded the night of the killing and that there was a joint criminal enterprise from earlier than that night, but the evidence does not allow me to say how much earlier it began. 31At this point I should say something about Nada Bailey and Janine Cahill. They were exceptionally brave and selfless women. Without any concern for their own safety they came to the aid of a man being viciously assaulted by two men who had, and were perceived by these women to have, lethal weapons. It was very late at night and there were apparently no other persons in the vicinity. Ms Bailey even attempted to protect the man with her own body from further assaults, and was herself assaulted by being kicked into the gutter. It is my recommendation that the appropriate authorities give consideration to recognising these women for bravery. 32I turn now to consider Nita Iskandar's involvement. The Crown pointed to two matters which were said to constitute the assistance Nita provided to Andrew in an endeavour to help him evade justice for what he had done. First, the Crown asserted that she lied to police when she told them Andrew was at home at the time of the killing. Secondly, the Crown asserts that she did various things, including the provision of money to Andrew, to enable him to flee to Indonesia a few days after the killing. 33I return now to the facts. Having heard what she did whilst on the telephone to the Deceased, Nita realised that something was wrong. She immediately drove from her home to the Deceased's house in Marion St. She arrived within minutes of the Deceased's being pronounced dead. She tried to get near to the Deceased, telling the police that it was her brother, but she was restrained. She told the police that she had been on the phone to him at the time he was attacked, and that she heard him yelling "Somebody help me". 34Before she returned home that morning Nita spoke to Detective King. When he asked her if she should ring anyone as a support person before he interviewed her, she said that her husband was working and Andrew was at home asleep. She maintained that position about Andrew in her ERISP on 23 February, although she then elaborated by saying that she had actually seen Andrew asleep in bed when she left the house to go to Leichhardt after she heard the attack on the phone. 35In my opinion on the night of the killing Nita honestly believed that Andrew was in bed at home when she left to drive to Leichhardt. A few things suggest that. First, she left a note on the bottom of a tissue box for Andrew telling him where she was going. Secondly, the first telephone call she made to Andrew from Marion St, after she knew the Deceased was dead, was to the Iskandar home phone to speak to Andrew. It was only when that call went unanswered that she rang Andrew on his mobile moments later. Those things were spontaneous acts for which the only alternative explanation could be that, knowing before she left home that Andrew was involved in the murder, she contrived to give him an alibi in those ways. Since she told no-one of the attempted phone call to Andrew on the home phone, she would have to have realised that phone records might be examined and would support her false alibi. That is fanciful. There is no evidence which provides any support for that alternative explanation. 36Further, it is true that Nita had seen Andrew in his bedroom earlier in the evening. She then retired to her own room, and the layout of the house makes it perfectly possible that Andrew could have left the house through the back door without her knowing it. On the night of the killing she held an honest belief that Andrew was at home at the time the Deceased was attacked and killed. 37At some time thereafter Nita realised that Andrew was involved in the killing. This must have been no later than at some point during Nita's ERISP because that concluded at 11.00pm on 23 February, and in the early hours of 24 February, not long after she returned home, Nita rang a friend who was a travel agent to try to organise plane tickets to Indonesia. 38There is another event which might suggest Nita knew earlier of Andrew's involvement. At 7.06am on 22 February she spoke to Hazairin on the telephone. Andrew said that he heard her say "You have poisoned the child". That is a remark strongly suggestive of knowledge in Nita that Andrew was, at the very least, present when Hazairin killed the Deceased. Its significance is that her ERISP was conducted on the following day, and she told the police in that interview that she had seen Andrew in bed on the night concerned when, clearly, he was not there, even on his own sanitised account of the events. 39Mr Price of Counsel, who appeared for Nita, addressed the jury on the statement about poisoning the child. He said what it must have meant was that by what he had done Hazairin had poisoned Andrew's life, a young man due to start University that week. When regard is had to the two telephone calls between Nita and Hazairin after his arrest, this explanation of the statement is not entirely far-fetched. In those telephone calls the concern of both parents was for Andrew's protection and welfare, including protection from the embarrassment that publicity about Hazairin's involvement in the killing of the Deceased would bring to Andrew. Those calls could be interpreted as planning for his flight from Australia but they might have had an innocent purpose, namely, his general welfare in the light of what, by that time, Nita knew Hazairin had done. In those circumstances I cannot be satisfied beyond reasonable doubt that the statement about poisoning the child demonstrated knowledge on Nita's part of Andrew's involvement in the killing. I do not find, therefore, that Nita lied in her ERISP about where Andrew was on the night of the killing. 40In my opinion her assistance to Andrew is confined to the provision of money to leave Australia and relatively minor associated acts such as endeavouring to arrange tickets for him through her travel agent friend. 41Andrew Iskandar's evidence was that his father rang him from custody and told him he should go to Indonesia to bring some of his father's relatives to Australia. His father told him there was money for all the airfares under a pillow in the bedroom. Andrew's evidence was that that was where the money came from. 42The jury must have rejected this evidence. This was not at all surprising because the jury had seen the DVD of the execution of the search warrant at the Iskandar home. It was clear beyond doubt from that DVD that there was no money under or in any pillow in the house. The DVD further demonstrated from the thoroughness of the police search that there was no money elsewhere in the house. The jury must have concluded, and I so find beyond reasonable doubt, that the source of the money given to Andrew to enable him to fly out of Australia was Nita Iskandar.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Cases Cited (19)

Cited By (1)