FACTS
4 On 17 July 1998, the occupants of a red Mitsubishi station wagon, registration number VFU 560, became involved in an altercation with three men outside the Five Dock Hotel. One of the occupants of the vehicle, said to be Michael Kanaan, produced a firearm and fired a number of shots in their direction. As a result, two of the men died and the other was injured. After the shots were fired the vehicle was driven away from the scene. Its registration number was recorded by a bystander, and a police search for it was immediately commenced.
5 A witness, given the pseudonym Alan Rossini, was called in the Crown case. He had been given an immunity in relation to certain drug charges, and an undertaking that the evidence that he gave in this trial would not be used against him, unless it was false.
6 Rossini said that he had been seated in the front passenger seat of the vehicle, of which Shadi Derbas was the driver. Michael Kanaan, he said, was seated in the rear of the vehicle with Bassim Kazzi and a "young Lebanese guy".
7 There was an altercation he said, between the occupants of the car outside the Five Dock Hotel, in the course of which he had a fist fight and lost his mobile phone. Kanaan, he said, fired shots at the three men. Bassim Kazzi, he said, was also involved in a fight, and received a hit in the mouth.
8 Rossini said that as they drove from the scene of the shooting, to Telopea Street Punchbowl, Derbas made two telephone calls on his mobile phone. He heard him say, "turn the scanner on and see if my car's come up and call me back".
9 Next, Rossini said, when they reached the address in Punchbowl which he believed was that of Derbas' parents, the vehicle was driven through the driveway, towards the back of the house. He said that as they pulled into Telopea Street, Derbas and Kanaan had each given instructions not to speak to anyone about what had happened. Rossini agreed that there was no subsequent conversation in relation to anyone having been shot.
10 When he and the other occupants left the vehicle, there were a number of other persons present, who were standing it its near vicinity. They included Mohamed Dib, the appellant (who he referred to as "Sam Erdit" or "Little Erdit"), "Slow George" (Khouri) and a few other "Telopea Street Boys". Durbas, he said, remarked "the car's come up on the scanner", and gave directions for it to be moved into the carport as there were already helicopters in the air. Additionally, he gave instructions to "two young Lebanese guys to go down to the end of the street to look out for D's".
11 Rossini said that the car was moved a couple of metres. Derbas told "Slow George" to get some cans of degreaser. When he returned, Derbas said "I can't lose the car; we'll just have to degrease it to get rid of fingerprints and saliva".
12 Rossini said that he, the appellant, and a "Lebanese guy" sprayed the inside and outside surfaces of the vehicle with the aerosol degreaser. The appellant, he said, pulled out a seat belt and sprayed and wiped it. While this was happening, he said another "big guy" broke the steering lock of the car. He believed that Dib was using a screwdriver to tamper with the door locks to the vehicle.
13 After 10 to 15 minutes of this work, Rossini said, Derbas instructed "Slow George" to take the car to Roselands and dump it. The appellant was directed to follow "Slow George" in the latter's van. They were to ring once they had dumped the car. Rossini said that he saw "Slow George" get into the Mitsubishi and the appellant walk down the side of the house. He added that he, Kanaan and Derbas waited for 5 or 10 minutes until Derbas received a phone call, after which he said "it was done".
14 Rossini said that he had known the appellant for approximately 12 months and had met him many times over that period. The appellant in his evidence acknowledged knowing him and the other persons mentioned in Rossini's evidence.
15 On 18 July 1998 the vehicle was discovered in the driveway of a property at Roselands. Examination of it revealed a strong odour consistent with that of degreasing chemicals, along with damage to the near side external door lock and to the ignition barrel and casing. An oily type substance was found covering the internal vinyl trim and windows of the vehicle. The damage to the vehicle was however not such as to permit entry to it or a starting of the engine, without the use of a key.
16 The appellant gave evidence in which he denied any involvement with the vehicle, and said that while he could not recall precisely where he had been on 17 July 1998, he knew that he had not been to Telopea Street that day. He was living at that time at Bidwill, a fact confirmed by Leanne Auon and Sheryl El-Zeyat, each of whom gave evidence to that effect, but neither of whom could recall where he had been that day.
17 The appellant suggested that Rossini had a motive to lie, in that in about August or September 1998 he had been involved in a sexual liaison with Rossini's then girlfriend Sandra, at Kings Cross where she worked as a stripper. He thought that Rossini had discovered the affair and could remember being confronted by him in relation to it somewhere in the city, probably in late December. He said that after he provided an explanation, Rossini's response was "sweet, no worries" after which he left.
18 Rossini disagreed with the suggestion the he had learned of any such affair, or that he had confronted Rossini with it. The appellant's wife said that she had no knowledge of it, and did not believe it. Rossini additionally said that a similar "motive" had been put to him by another person charged with a quite separate offence, involving the murder of Edward Lee, when he gave evidence in relation to that matter - the single difference being the proposition, on this occasion, that it was this other accused who had been engaged in an affair with his girlfriend.
19 On 7 February 2000, Rossini took part in an identification procedure, in the course of which he was shown a video containing photographs of a number of people, including the appellant. He identified the appellant as a person "involved in discarding the vehicle", later adding that "this person took that car that was used in the incident". He described the vehicle at this stage as "a station wagon, late model, the colour of the car maroony".
20 Rossini's reliability and credibility was heavily attacked at the trial, in the light of inconsistencies in the several accounts which he had given, and in the light of the undertaking and/or immunity which he had in relation to the shootings, and in relation to a serious drug offence. However, there was some evidence corroborative, at least of his presence at the time of the shootings, so far as a mobile telephone registered to him was found at the scene.