Factual Background
3 At approximately 1.30am on Sunday, 14 December 2008 the accused and a group of his friends, both male and female, were attending a nightclub known as "Beirut by Night". Their table was located on an upstairs level.
4 At about the same time the deceased, his girlfriend, his brother and friends were in the same premises seated at a table on the ground floor level near to the dance floor. The dance floor was extremely crowded and persons on it were engaged in what was described as a vigorous form of dancing.
5 A short time later, some of the deceased's group and most of the accused's group were on the dance floor. After some initial pushing, a brawl broke out. The precise cause of the brawl was not established. The estimate of the numbers involved in the brawl varied between 8 and 30. The participants were described as punching one another. Most of those not engaged in the fight tried to leave the dance floor. Others tried to separate the participants.
6 The brawl lasted only a matter of minutes. When the participants were separated, the deceased was observed to be bleeding from wounds in the upper left part of his chest. Shortly thereafter he collapsed and was carried or dragged into the kitchen where attempts were made to administer first aid to him. An ambulance was called but he died before arriving at hospital.
7 Four other persons appear to have received wounds in the brawl. The accused's brother, Ali, received a four cms stab wound from a sharp object on the underside of the left forearm. The deceased's brother, Mahmoud, received a stab wound three cms in length to his left upper arm. A friend of the accused's, Ahmad Bahwach, received a cut on the back of his right hand. That cut ran parallel to his knuckles. The accused had some cuts on the forearm. Which arm could not be established by the evidence.
8 The deceased suffered a number of wounds. The most important were two stab wounds to the front of the upper chest. The more serious of these was to the front of the left shoulder. It penetrated from the top of the shoulder downwards towards the back. This wound was approximately twenty cms in depth. Given the depth of the wound, the pathologist thought that the minimum length of the instrument which stabbed the deceased was fifteen cms. The wound was consistent with a stab wound caused by a knife. It was this wound which caused the deceased's death.
9 The second serious wound to the front of the chest was located on the left side but almost at the midline. That wound was at least 1.5 cms in depth and had pierced the deceased's lung. It was caused by a sharp object, but the pathologist could not be more specific. That wound, had it been left untreated, would eventually have caused death but did not cause death in this case.
10 The deceased suffered five or six other superficial cuts. They were all caused by a sharp instrument or object but none was serious. Each involved a superficial penetration of the skin only. Two of those wounds were located on the deceased's back, one on the upper shoulder on the left side and one just below the shoulder on the left side. There were three small cuts on the upper part of the left side of the neck and a longer cut on the left side of the neck, but towards the back.
11 The pathologist was not able to say whether the same instrument had caused all of the wounds to the deceased or whether more than one sharp instrument was involved. It was not possible to say whether the same instrument had caused the cutting injuries to the other persons.
12 A number of persons had blood on their bodies and clothes following the brawl. The accused had blood on one of his forearms from the wrist to the elbow. Part of the front of his dark coloured T-shirt was also wet with blood.
13 A friend of the accused, Mohamed Chamma, had little dots of blood on his face and had blood on his shirt, jeans and shoes. The accused's brother, Ali, had blood on his shirt and on other parts of his clothing.
14 The top, front part of the T-shirt worn by Ahmad Bahwach was wet with blood. He also had blood on his shoes. There was blood on the clothing of the deceased's brother, Mahmoud. He took off his T-shirt and wrapped it around the wound on his arm to reduce the bleeding. He said that he handed this to a police officer before he went to hospital.
15 A heavily bloodstained shirt was found in a waste bin in one of the toilets in the club (exhibit F). The owner of that shirt was not identified.
16 No DNA evidence was adduced. There was no evidence to connect any of the blood on the clothing or on those persons to the deceased.
17 After the arrival of the police and ambulance officers at the nightclub, the accused spoke to his brother, Ali, as his brother was getting into an ambulance to be taken to Westmead Hospital. The accused then drove from the premises. In the car were his friend, Mohamed Chamma, Ahmad Bahwach and a female friend of Ahmad Bahwach.
18 The accused telephoned his girlfriend, who was still at the club, and arranged to meet her at a service station near to the club. When they met he got into her vehicle and drove to Chahine restaurant at Bankstown. Mr Chamma followed behind driving the accused's vehicle with Mr Bahwach and his female friend in it. Apparently Mr Bahwach had left his vehicle at Chahine earlier in the night.
19 Some two days later when the accused was being driven to his place of work in Tumut, a fellow workmate observed that the accused had had a haircut. His hair was shorter on the sides and back than it had been on the night of the deceased's death.
20 There was evidence that there was a disagreement on the dance floor between the accused and the deceased and they were observed punching each other with closed fists. At the commencement of the fight, the deceased's head was observed to go backwards but no contact was observed between any person and the deceased at that time. At the beginning of the fight, the accused's shoulders and head were observed to be going forward towards the deceased "like he was going to attack him".
21 There was no evidence that the accused was ever seen to be holding anything in his hands. On the contrary there was evidence that at one point in time the accused had his hands on the shoulders of the deceased and had nothing in them. The deceased was wearing a short-sleeved, dark T-shirt at the time. There was no evidence that the accused or anyone was seen holding a knife. There was no evidence of any action by the accused which was consistent with him stabbing the deceased or anyone else. There was no evidence that all of the cutting wounds which various persons suffered, were caused by a single sharp instrument. They could have been caused by more than one such instrument. The weapon or instruments which caused the wounds to the deceased and others were not found.