R v Hazairin Iskandar

Judgment 1On 27 June 2012 a jury convicted Hazairin Iskandar of the murder of Mohd Shah Saemin on or about 21 February 2010. 2The maximum penalty for murder is life imprisonment and there is a standard non-parole period of 20 years.

3I will deal with the factual background. The facts which I find against the Offender have been found by me to be beyond reasonable doubt, and those in his favour on the balance of probabilities. 4Nita Iskandar and Hazairin Iskandar were born in Indonesia. They were married in 1984 and moved to Australia some three months later. 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. 5The Offender worked as a taxi driver and Nita came to work as a clerk in the Malaysian Consulate in Sydney in 2000. The 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. 6Nita came to know that the Deceased and his wife had separated. Nita had a sister, Jujung also called Suzanne, in Indonesia. When she visited Nita and the Offender about eight or nine months before his arrest (perhaps May or June 2009) Nita introduced Suzanne and the Deceased. Although it appeared a relationship might develop between them Suzanne decided it was not for her. She returned to Indonesia. 7The Offender was first told by a friend in the Indonesian community, Bay Malik that Nita and the Deceased had been seen together in a way that was considered inappropriate for practising Muslims. Although the Offender thought nothing of that at the time other friends reported that the Deceased and Nita had been seen together. The Offender raised the matter with Nita and subsequently the Deceased. 8Both of them denied it. The rumours persisted. The Offender noticed that Nita had changed in some ways. She started to buy more fashionable clothes, she largely stopped cooking at home, she started coming home later from work, she would receive calls on her mobile phone and go into the bedroom to speak to the caller. The Offender heard the word "adultery" or "infidelity" (in Indonesian) mentioned at a wedding at which he was a guest, and he realised that the people concerned were talking about him. 9After this the Offender said he felt shock. It started to bother him. He lost motivation and concentration in his work driving taxis. He even had a minor accident through lack of concentration. He asked Nita about it again but she denied that there was an affair. She said she just loved the Deceased as a friend. The Offender and Nita started arguing a bit. The Offender rang the Deceased about it. He met with the Deceased about a month and a half before the Deceased's death. The Deceased said that he and Nita were like brother and sister, nothing more. 10On another occasion the Offender, whilst driving his taxi, saw the Deceased driving the airport bus. He called out to him to stop so that they could talk but he said the Deceased just drove off while giving him the finger. Some little time later the Offender saw the Deceased near the taxi queue at the airport. He asked him to stay away from Nita. He said the Deceased was "stretching his body" (I understood by his demonstration to mean that the Deceased was flexing his muscles) and told the Offender not to worry about it. The Offender said that he felt intimidated. 11I accept that the ongoing relationship between Nita and the Deceased caused the Offender considerable anguish. I accept Mr Malik's evidence that the Offender changed from being a happy man to one who was sad and apparently depressed, and that the Offender felt the affair brought shame on his family. 12By February 2010 the Offender said his relationship with Nita had completely broken down. She was not sleeping with him, not speaking to him or cooking for him. She would come home late and then shut herself in her room. He told her that if things kept going that way they would be broken up. He thought about divorcing her. He said that divorce was acceptable to him. However, his friend Mr Malik advised against divorce. 13On 14 February 2010 the Offender and Andrew went to the Kings Cross Branch of Budget Car Rentals. The Offender effected the hiring of a car whilst Andrew sat on one of the chairs in the office. The Offender was asked by the Budget representative if Andrew was to be an additional driver, but the Offender said that Andrew was his son and that he was too young. 14At some time during the following week the Offender 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 which is probably only 100 metres from the Malaysian Consulate can be seen in the background. 15The Offender admitted that the purpose of this visit to the street outside the Consulate was to spy on Nita and the Deceased. 16In the week before the killing, and after the Offender had hired the car from Budget, he followed the Deceased and Nita on a number of occasions. There may have been occasions before that time where the Offender followed one or both of them. On one occasion he saw them go into the Deceased's house and stay there for a few hours at a time. 17During the late afternoon and evening of 21 February 2010 there were a number of telephone calls and/or text messages passing between Andrew and the Offender including a text message from Andrew to the Offender which simply said "?". The Crown case was that this text concerned the planned murder and an enquiry from Andrew to the Offender when it was to happen. It is not possible to reach a concluded view about what that message meant. 18Andrew and the Offender 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. One of these jackets had been purchased by the Offender a week or so previously. They were both wearing caps. In the car was a knife, a hammer, a spanner and possibly a crowbar. The Offender first said that these were in the car because he had used them that afternoon to repair his taxi. He later admitted that he had put them into the car to use in order to scare the Deceased. There were also two pieces of folded blank paper with pegs attached in the car. The folded paper matched the size of the number plates of the car. I find that the purpose of those pieces of paper was to obscure the number plates of the car but the Offender was not able to achieve that because the rear number plate, at least, was flush with the car. 19The Offender drove over to the vicinity of Cromwell and Marion Streets in Leichhardt to wait for the Deceased to arrive home from his night job as an airport bus driver. The Offender said that the reason he drove to that location was to speak to the Deceased and to scare him. He asked Andrew to accompany him so that when the Deceased saw Andrew he would realise that the matter was serious. 20When the Deceased arrived he parked his car, a silver Volvo, on the western side of Cromwell St a short distance north of an electricity utility box. 21The Offender's account of what then happened is this. Either immediately before, or at the same time as, the Deceased alighted from his car, the Offender drove the rental car at the Deceased's car and hit it at the rear. After the Deceased alighted from his car the Deceased swore and then saw that it was the Offender who had run into his car. The Offender, who was by then out of his car, said to the Deceased, "Finish it. This is serious, no more, no more, no more". The Deceased then said, "That's your bad luck. You can't look after your woman" and he called the Offender "Betima" which is an offensive Indonesian word for a female animal. The Deceased also called him "poofter" using the English word. 22The Offender said that he lost control because of what the Deceased said and he tried to jump on the Deceased. A fight then ensued. Andrew became involved. Andrew and the Deceased were wrestling. The Offender went to his car and grabbed the knife and hammer. He hit the Deceased with the hammer which he had in his right hand, the knife being in his left hand. After the Deceased was hit with the hammer he ran diagonally across Cromwell St towards Marion St. The Offender gave the hammer to Andrew and said "Hit that animal". The Offender chased him, hitting him as he ran with the knife. When the Deceased fell on the footpath on the southern side of Marion St the Offender said that he "lost it" and stabbed him in the chest. In cross-examination he admitted also to stabbing him in the back when the Deceased was on the ground in Marion Street before stabbing him in the chest. 23Nada 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 St. She noticed his shirt was all wet. 24She 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. 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 and that the man holding it was the Offender. 25Whilst this was happening Janine Cahill was walking down the southern side of Marion St. She saw what she thought at first to be two men running across Marion St from Cromwell St. 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 St. 26The police were first notified at 11.53pm and arrived at the scene a short time afterwards. In the meantime Ms Cahill commenced to perform CPR on the Deceased,. When Constable Hickey arrived she took over performing CPR until the ambulance arrived. The Deceased was pronounced dead at 12.05 am. 27The police had noticed the silver Volvo in Cromwell St with the door open. 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 the Offender. 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 Streets. The police also located a hammer lying on the ground near the car. Andrew Iskandar's DNA was later found on that hammer. 28The 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. Four stab wounds were identified, one to the lower right flank, one to the mid back, one to the upper back and one to the chest. 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. Despite the Offender's evidence suggesting that he inflicted only three of those wounds, one as he chased the Deceased in Cromwell St, and two when he was on the ground in Marion Street, I find that all four were inflicted by him. 29The Offender's defence to the admitted killing was that he was provoked. He pleaded guilty to manslaughter on the basis of provocation but that plea was not accepted by the Crown. The jury's verdict demonstrates that they did not accept the Offender had been provoked so as to reduce the crime to manslaughter. 30I do not accept the Offender's evidence that the Deceased said the words to the Offender as the Offender alleged. Significantly, when the Offender spoke to a number of his friends within 12 hours of the killing he did not tell them that the Deceased had spoken any words to him that had provoked him. He said that he did not tell them because he was embarrassed. I do not accept that evidence. Moreover, I accept Mr Malik's evidence that in a conversation he had with the Offender shortly after the killing that the Offender said to him that he bashed the Deceased "for the dignity of my family". Mr Malik also said, and I accept, that the Offender said only that he bashed the Deceased but said nothing about a fight with him first. 31Ultimately the account given by the Offender contains such inconsistencies that it cannot be accepted. At one time in his evidence he said he did not even intend to go to Leichhardt that night - rather, the idea only occurred to him as he was driving to have a meal with Andrew in Crown St. It was in a restaurant in Crown St that the Offender falsely told the police in his ERISP that he had met a stranger who, when he heard the Offender's story of his wife's affair, persuaded the Offender to kill the Deceased that night. At other times in his evidence he said that he planned to confront the Deceased and scare him that night. At one point he said he took Andrew with him, just to stay sitting in the car, so that the Deceased would see that he was serious when he told the Deceased to stay away from Nita. At another point he said that he took a knife and two hammers (one for Andrew and one for himself) so that they could scare the Deceased with those weapons. 32I find that the altercation happened in this way. The evidence establishes that the Deceased had just alighted from his car and was opening the rear driver's side door when his car was hit. He was almost immediately set upon by at least the Offender who was armed with one or more of the weapons. The clump of the Deceased's hair found in the back of his car is supportive of the immediacy of an attack while the Deceased was positioned right near the rear driver's side door. At some short time later Andrew was also involved in the attack. The trail of blood to Marion St establishes that the knife was used on the Deceased in Cromwell St. . 33I reject the submission made on behalf of the Offender that when he stabbed the Deceased he did not intend to kill him. The evidence from the pathologist was that two of the stab wounds, including the one that killed him, were made with considerable force. 34I find the position to be that the Offender went to ambush the Deceased on that evening with the intention of killing him. I find that the attack on the Deceased took place before there was any verbal exchange between the Offender and the Deceased. The Deceased was struck with the hammer and probably the knife whilst the parties were in Cromwell St. If the Deceased fought back at all he did not do so after he attempted to run from them in Cromwell St. At least two of the stab wounds were inflicted after the Deceased fell at the gutter on the southern side of Marion Street. He was completely defenceless. His brave defender, Nada Bailey, was kicked out of the way so that the Offender and Andrew could continue the attack. Whilst the Offender stabbed the Deceased Andrew was hitting the Deceased with considerable force, as the pathology report demonstrates, using the hammer that was taken to the scene in the car. The Offender and Andrew did not speak during the attack except when the Offender told Andrew to "hit that animal". That was because the killing was planned.