R v Itani - [2021] NSWDC 26 - NSWDC 2021 case summary — Zoe

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R v Itani

[2021] NSWDC 26

District Court of NSW|2021-01-25

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-01-25

Catchwords

Armed robbery
[2009] NSWCCA 150 Domican v The Queen (1992) 173 CLR 555
[1992] HCA 13 Ghani v Jones (1977) 1 QB 693 House v The King (1936) 55 CLR 499
[1936] HCA 40 McAuliffe v The Queen (1995) 183 CLR 108

Source

Original judgment source is linked above.

Catchwords

Armed robbery[2009] NSWCCA 150 Domican v The Queen (1992) 173 CLR 555[1992] HCA 13 Ghani v Jones (1977) 1 QB 693 House v The King (1936) 55 CLR 499[1936] HCA 40 McAuliffe v The Queen (1995) 183 CLR 108[1995] HCA 37 R v Baden-Clay (2016) 258 CLR 308[2016] HCA 35 R v Riley [2020] NSWCCA 283 Shepherd v The Queen (1990) 170 CLR 573

Judgment (42 paragraphs)

[1]

index index Judgment ON VERDICT The evidence in the Crown case Evidence of Mr Tom Andrews Evidence of Yilmaz Yildiz Evidence of Satya Kong Evidence of Constable Jin Choi Reasons for judgment on the voir dire Evidence on the Voir Dire Submissions on behalf of the accused Submissions on behalf of the Crown Submissions in reply Determination Further evidence in the Crown case - Detective Senior Constable Casey Braz Evidence of Mr Christopher Preece Officer in charge recalled Evidence of Da-Ren Xie Evidence of Alannah Sheekey Evidence of Ibrahim Droubi Evidence of Zahara Michails Evidence of Cristian Salazar Evidence of John Phillip Brosnan Further evidence by the Officer in charge Evidence of Alice Tran Evidence of Detective Senior Constable Haithem Jouni Officer in charge recalled The Crown address The address on behalf of the accused Directions of law Circumstantial evidence - link in the chain direction Direction - expert witness evidence Direction in respect of the accused's evidence (Liberato Direction) Direction as to lies by the accused (Zoneff v The Queen) Direction - the election of the accused not to give evidence Direction - the good character of the accused Assessment of witnesses generally Factual findings Findings based on the accused's banking records and expert evidence of Ms Tran The post-event exculpatory conduct of the accused Determination Order

[3]

The evidence in the Crown case

After opening the Crown case, the first Crown witness was Detective Senior Constable Christopher Lindsay, who was the officer in charge of the investigation. Through Detective Senior Constable Lindsay, a calendar for the year 2018 was tendered which showed that 1 May 2018 was a Tuesday (Ex A). A diagram of the hotel premises, which was located on the corner of Burwood Road and Tobruk Avenue, was also tendered (Ex B).
A bundle of 23 photographs taken by the crime scene officer on 2 May 2018 became Ex C. A further bundle of 11 photographs taken by Detective Senior Constable Lindsay became Ex D.
Also tendered through the officer in charge was a map of the general geographical location, showing the location of the hotel, the home of the accused, the home of the accused's girlfriend, and a number of mobile phone towers in Belmore (Ex E).
Detective Senior Constable Lindsay gave evidence that, as officer in charge, he became aware that a man by the name of Omar Saadallah was a friend of the accused. Mr Saadallah was a citizen of Canada and had visited Australia in April and May 2018. Ex F was his visa application submitted on 18 December 2017. Ex G was a copy of the passport of Mr Saadallah, who was born on 21 January 1987. It contained a passport photo of him taken at the time of issue, namely 15 November 2017.
Exhibit H was the marriage certificate obtained of Mr Saadallah. He had married on 14 August 2009 in Ottawa, Canada.
Exhibit J was an extract from a statement from Ms Narelle McPhail, a supervisor with the Australian Border Force. It indicated that Mr Saadallah arrived in Australia on 20 April 2018 and departed on 8 May 2018, returning to Canada. Exhibit K was four photographs of Mr Saadallah upon arrival and departure, taken at the Immigration desk at the airport.
Police inquiries reveal that a previous manager of the Belmore Hotel was known as James Leatherbarrow. Detective Senior Constable Lindsay gave evidence that during the course of the police investigation, information was obtained as part of a listening device operation from the accused's mobile phone, indicating that Mr Leatherbarrow had some involvement in the robbery. Exhibit L was a record obtained from the Australian Border Force showing that James Leatherbarrow left Australia on 22 April 2018, returning to England.
Exhibit N was a rental agreement between Hertz Australia Pty Limited and Omar Saadallah, commencing on 23 April 2018 and ending on 7 May 2018.
Detective Senior Constable Lindsay gave evidence that police investigators became aware that the person responsible for committing the armed robbery had taken and handled the mobile telephones of the night manager, Mr Yildiz, the employee, Ms Kong, and the accused during the robbery. On 2 May 2018, the accused's mobile phone was seized by Detective Senior Constable Braz. On 4 May 2018, Senior Constable Duarte conducted what is known as a Cellebrite examination of that phone. A PIN number had been provided by the accused which enabled the police to open the phone and look through it. Seven photographs of the phone showing various screenshots became Ex N. One of those screenshots showed a number of applications that were on the phone. Another photograph showed the location services which listed significant locations at which the phone had been located prior to May 2018.
A further four pages of screenshots taken from the accused's mobile phone, relating to email communications, were marked for identification. Subsequently, objection was taken to the admissibility of those documents and a retrospective objection was taken to the documents adduced by consent into evidence as Ex N. The question of admissibility of those documents was deferred.
Detective Senior Constable Lindsay gave evidence that CCTV footage of the premises known as Belmore Hotel had been recorded on two hard drives referred to as digital video recorders or DVR's. Investigating police had reviewed hours of footage from the two hard drives and compilation tapes were prepared of relevant events. Upon assessment, the time stamp on DVR1 was accurate to within 30 seconds to Australian Eastern Standard Time, and the time stamp on DVR2 was 4 minutes and 6 seconds ahead of the time stamps on DVR1. The location of the various cameras for DVR1 were marked on a copy of Ex B, which diagram became Ex O. The location of the cameras for DVR2 were marked on a separate copy of Ex B, and that diagram became Ex P.
Detective Senior Constable Lindsay gave evidence that on 2 May 2018, a police statement was obtained from the accused. It became Ex S. In his statement, the accused outlined that he had been employed full-time as a security guard with Sun Security for two years, and that for four months he had been working as a security guard at Belmore Hotel on night shift from 11pm to 4am. He also did security work at the Banksia Hotel on Friday, Saturday and Sunday nights from 8pm until 6am.
The accused told police that approximately two weeks prior, on a Monday night, a manager at the Belmore Hotel, James Leatherbarrow, called his mobile phone and asked to speak with him when he arrived at work. That night at work, Mr Leatherbarrow told him that he had taken money from the safe to gamble on horses. The accused had told Mr Leatherbarrow that he would lend him $800 and that he could pay him back the following week.
The accused told police that he lent $800 to Mr Leatherbarrow, who was fired a week later. He then learned that Mr Leatherbarrow was travelling to the UK and contacted him. Mr Leatherbarrow said he was going to pay back the $800 he had been lent and transferred $200 into his account, but the accused had not received any more money from him.
The accused also told police that on Monday 30 April 2018 he was working at Belmore Hotel and between 2 and 3am he was standing next to the back door of the premises when he was approached by two men, one of whom asked him whether the cameras in the hotel were linked to the police station, and the accused told him that they were.
The accused then told police that during his shift on Tuesday 1 May 2018, he had observed a man of middle-eastern appearance with long black hair, tied into a ponytail, playing a poker machine at the back of the hotel. The man had been sitting with an older man playing poker machines, and had withdrawn money from an ATM six to seven times during the early hours of the morning. The accused told police he saw them leave at approximately 3am.
The accused outlined his duties at closing time to secure the hotel premises. On this occasion he said that he checked the front door, the toilet and walked to the rear of the premises where he went to the disabled toilet. When he left the toilet he saw that the storeroom door was open and he went into that room to check it. There was no one there, so he returned to the hotel and closed the door behind him. He then gave the following account of what happened: "On this occasion when I saw the door open again after the store was closed I went down stairs to make sure no one was down in the storage area. I walked around down there and about half a minute later I turned to walk back to the door to come upstairs to the public area. I heard a noise like someone running behind me. I felt somebody push me to my back before I could turn around. I felt something hit me to the back of the head which felt like is was hard plastic. I hurt when he hit me. I then felt something being pushed to the back of my head. I heard males voice say, 'Don't move, give me your phone'. I could feel somebody pushing me to make me move towards the door. I put my hands in the air and said, 'Take what ever you want. Just don't hurt me, I have a family'. I had my phone in my hand and had my hands in the air above my head. We walked up into the public area of the hotel where the poker machines are and the man kept pushing me in the direction of the bar. The man ran in front of me and grabbed my shirt around the centre of my chest area with one of his hands and started pulling me towards the poker machines where Sasha was. Sasha was standing next to the poker machines with the trolley which had the bags of the poker machine money. The man said, 'Get on the ground' and 'Phones'. Me and Sasha got on the ground and put our phones on the ground in front of us. The man grabbed our mobile phones and put them in one of the bins in the poker machine area. I could see this man now and saw that he was about 182cm tall, of a big build, he had a dark black coloured thing covering his whole face. I couldn't see his eyes or his mouth at all. The man had long hair which was tied back in a low pony tail. The pony tail went down to the man's shoulders. The colour of the man's hair was black. The man was wearing black coloured clothing covering his upper body with no symbols on it. The man was wearing tracksuit pants but I don't remember the colour. He was wearing yellow coloured boots like workman's boots. I didn't see any symbols on the man's pants or shoes. The man was wearing red coloured gloves covering his whole hands. The man yelled 'Don't look at me or I'll shoot you'. I was scared when he said that. I was wondering what am I dying for. I just wanted him to leave and for no one to get hurt. I was scared that the man was actually going to shoot me. He was holding a gun in his hand but I'm not sure what hand he was holding it in. The gun was a little bit bigger than a Police gun and was black. The gun was shiny in the hotel lights. The man was pointing the gun at me and Sasha and the night manager. I'm not sure how the bullets would have went into the gun. I just know it was shiny and black. I have drawn a picture of the gun for Plain Clothes Senior Constable Fretten and have labelled it Annexure A 'Hand drawing of gun' and signed it and dated it. Plain Clothes Senior Constable Fretten also signed it and dated it. The man said, 'Money, money'. The man had a deep voice which didn't sound like he had an accent but he didn't-say long sentences just a few words. Sasha grabbed the bags of money from the trolley and started putting them into a black coloured school bag which the man had given to Sasha to fill. The night manager was standing behind the bar and the night manager put his hands in the air when he saw me walking in front of the man. The man yelled at the night manager, 'Money money' while he was pointing at the money exchange machine. The manager got the key for that machine and he went over to the exchange machine. The man with the gun took me, Sasha and the night manager over to the money exchange machine and the night manager was taking so long to open it to get the money for the man with the gun. The man with the gun was getting impatient because I could hear him taking deep breaths. I said. 'Please don't hurt anyone. We will give you whatever you want'. The night manager was taking so long. I said, 'Hurry up and give him the money'. The night manager opened the money exchange machine but only the top where there's only about $500 whereas the bottom drawer holds a lot more money. The night manager pulled out a bunch of 50 dollar notes about an inch thick and handed them to the man with the gun in his hand. The man with the gun said, 'Come, come' and started pushing all three of us towards the back of the hotel where the toilets are. The man pushed me to the back of my right shoulder. The man with the gun opened the door to the disabled toilets and said, 'Go inside, if anyone go out. I shoot'. Me, Sasha and the night manager went into the toilet and the man with the gun closed the door to the toilet. We waited in the toilet for about 2 minutes and the night manager told us to come outside. I said 'We should stay in here more'. But the night manager wanted to get out. We all came out of the room and Sasha called Police and the night manager spoke on the phone. Police came not long afterwards and I spoke with Detectives I gave Plain Clothes Senior Constable Fretten my work shirt which the man with the gun had touched. I went with Plain Clothes Senior Constable Fretten to Campsie Police Station where I gave this statement."
Detective Senior Constable Lindsay was cross-examined in part. He agreed that part of the police investigation was directed towards Omar Saadallah, who had left Australia about a week after the robbery on 8 May 2018. He agreed it was the Crown's case that Omar Saadallah was the man holding the gun during the robbery, as shown on the CCTV footage.
Detective Senior Constable Lindsay agreed that police investigations revealed that as at the date of the robbery, it appeared as though Omar Saadallah was bald. CCTV footage from 2 May 2018 at 4.28am, from camera 5 on DVR1, was played to the court. He was asked whether the robber shown in the footage appeared to have hair and answered: "A: Whether its hair or not I'm not open to say but there is something along the back, yes."
Detective Senior Constable Lindsay agreed that the investigations showed the robber was hiding in the storeroom before the robbery. Footage taken at 11.15pm on 1 May 2018 from camera 7, DVR1, was shown to demonstrate that both Mr Yilmaz Yildiz and Ms Satya Kong went to the storeroom after the accused was seen moving the disabled toilet sign adjacent to the storeroom door at 11.16pm. He agreed that neither witness said anything about the sign propping open the door in any of their statements.
Further CCTV footage was shown at 11.35pm on 1 May 2018, showing Ms Kong entering the storeroom and not moving the retractable sign. She left the storeroom at 23:36, and again, there was no movement of the retractable sign. The accused was shown walking into and out of the storeroom at 11.48pm, and again, Detective Senior Constable Lindsay agreed that the retractable sign for the disabled toilet stayed in the same spot. At 12.45am on 2 May 2018, Mr Yildiz and Ms Kong were seen approaching the storeroom door, at which point, the sign was not propping the door open. At 12.58pm, Mr Yildiz was again seen entering the storeroom and then leaving the storeroom, at which point, he could be seen crouching, doing something on the floor. Detective Senior Constable Lindsay agreed that there appeared to be no movement to the retractable sign. Mr Yildiz again went into the storeroom on 2 May 2018 at 1.15am, and again, when leaving, was seen to be crouching down doing something at the doorway, however, Detective Senior Constable Lindsay agreed that there was no movement of the retractable sign. He also agreed that Mr Yildiz said nothing in his statements about going in and out of the storeroom on the night of the robbery.
Detective Senior Constable Lindsay agreed that, on a previous bail application, a synopsis prepared for the court recorded that on 24 April 2018 at 11.50pm, the accused had gone into the manager's office and put his phone on a charger. Detective Senior Constable Lindsay was not aware of any complaint about the accused using the manager's office to charge his phone.
Detective Senior Constable Lindsay was also asked about a loan the accused had made to a previous manager of the premises, James Leatherbarrow. Detective Senior Constable Lindsay also agreed that the accused told police about unknown middle eastern males entering the hotel on the night of the robbery. At that point in the cross-examination, a number of witnesses were interposed in the Crown case.

[4]

Evidence of Mr Tom Andrews

Mr Tom Andrews gave evidence that he was the licensee of the Belmore Hotel on 2 May 2018. He gave evidence of the staff working at the hotel and that the accused was a security guard engaged by Sun Security. He became aware of the robbery on 2 May 2018 when he received a phone call around 4.30am from Mr Yildiz. He went straight to the hotel and completed a crime scene examination consent form, entitling police to enter the crime scene to conduct necessary enquiries. He gave evidence of the CCTV recording systems within the premises and provided police with the two DVR hard drives. He also gave evidence that $87,835.00 was taken from the gaming machines' takings and the sum of $8,480.00 from cash redemption terminals, totalling $96,315.00.
Mr Andrews gave evidence of various locations within the hotel premises by reference to the diagram Ex B, including the retractable sign located near the storeroom door directing patrons to the disabled toilet. He gave evidence about the operation of the storeroom door, which at the time of the robbery, was not locked or lockable.
Mr Andrews also gave evidence that the Belmore Hotel had 30 gaming machines which staff were not permitted to use whilst on shift.
In cross-examination, Mr Andrews gave evidence that he had never, prior to the night of the robbery, spoken to the accused. The accused was not an employee of the hotel, but was a contractor through the relationship with Sun Security.
Mr Andrews gave evidence that he had not spoken to Mr Itani about expectations of a security guard at the hotel, nor about the hotel's plan of management. Nor had he had a discussion with the accused about what he was or was not expected to do whilst takings were being counted at the end of the shift.
No one had ever complained to Mr Andrews about the accused charging his phone in the manager's office, and he was not aware of any complaints made about Mr Itani carrying out his duties.
Mr Andrews gave evidence about a safe in the manager's office which was used to store the office float, which comprised $5,000 for poker machine payouts, together with other amounts which totalled between $800 and $1,200, and a standing office float of less than $300 to $400. He gave evidence that no money was stolen from the safe on the night of the robbery.
Mr Andrews gave evidence about stock that was stored in the storeroom. When speaking to police, he had been shown some of the CCTV footage, but he did not know who the last staff member was to enter the storeroom before the robbery.
In re-examination, Mr Andrews gave evidence that Mr Leatherbarrow had confessed to taking a sum of money from the office float. He gave further evidence that if the storeroom door was not closed, it would not be able to stay open by itself.
Mr Andrews gave further evidence that security plans were provided by the owners of the hotel to the security provider, and it was the owner's expectation that the security provider would instruct their staff as to what was required in the same plan.
In further cross-examination, Mr Andrews said that the hotel owners expected that security were briefed by the security company. In the case of Mr Itani, he did not know whether that in fact occurred or not.

[5]

Evidence of Yilmaz Yildiz

Mr Yildiz was the night manager at the Belmore Hotel on 2 May 2018. He had worked for the Monarch Hotels Group, the owner of the Belmore Hotel, since April 2018. In 2018, he was asked to take up the position of duty manager, night shift, after another manager had left the hotel. He commenced working at the Belmore Hotel on 16 April 2018 and worked a total of five or six night shifts prior to the robbery.
Mr Yildiz gave evidence about his duties as the night manager. He gave evidence that, at the time of the robbery, there were only three staff members at the hotel; Sasha, himself and the security guard. He gave evidence that he had spoken to the security guard during the shift before midnight. He gave the following evidence: "Q. Before the midnight? A. Yes. Yes, like just normal quick chats, "Everything all right", this that. And he came to the office a number of times that night which never happened before. Q. When you say never happened before, what do you mean? A. I mean coming into the office and he just ask some questions and usually the shifts before that night I did, I work with him, he never came into the office to ask questions. So he usually we have communication system, we just radio. Q. Radio? A. Walkie Talkies or we communicate over the radio. If he needs me he calls me out, I go out I speak to him, he doesn't come to the office. Q. What did he do at this time? A. He came to the office, the thing I clearly remember, the question he asked, he said "Are you happy working in here? In this place?" So that was a clear question I remember. He asked a lot of things but I can't recall but I clearly remember he said "Are you happy working here?" Q. What part of the shift was that, was that before midnight or after midnight? A. Most likely after midnight because he starts late already, 10 or 11pm. I'm pretty sure it was after midnight."
As part of his duties, Mr Yildiz compiled reports using an Excel spreadsheet.
Mr Yildiz gave evidence that at closing time, he locked the main door on Burwood Road and also the door on the Tobruk Avenue side of the hotel. He then checked with the security guard whether anyone was left in the hotel. He gave the following evidence: "A: Yes, I clearly remember I ask him 'Did you check the toilets? Is there anyone left in the pub?' He said, 'No one left in the pub. I checked everywhere'. That was the words I'm pretty sure we were used."
Mr Yildiz gave evidence that after he had locked the doors, he went to collect the gaming till in the gaming room. He took the till and the gaming machines' computer to the office to do the last report for the day. He then gave the following evidence: "Q. And what's the next thing that happened or that you did or that you remember happening? A. I heard some noises. Noises means talking, sound of a male. And which I couldn't recognise and in my mind I thought it's only Sacha and security guard, there's no one else. And decided to walk out of the office to check out what's happening and then I saw security guards, Sacha and a guy in complete black, which had a gun in his hand pointed at me. Q. A gun in his hand pointed at you? A. Yes. Q. Right. Where were you when that happened? Where were you standing? A. So manager's office. I opened the door, I entered that bar area and I saw them right in front of me which probably they're - the square thing just on the side here. So the yellow, it says "You're here", and around there, they were there and I was just behind the door, manager's office. Q. Okay. You saw a man pointing a gun at you? A. Yes. Q. What was the very next thing that happened? A. I was - I was in shock at that moment. I - for a second I just thought someone joking. This is just a joke. Q. Yes. A. And when I just realise it's just something happening, I just put my hands up trying to give message "Don't shoot." Q. Okay. Did the man with the gun do or say anything to you at that point? A. He - he was talking. The whole face is covered. Most of the things he say Icouldn't understand the stress and panic this. I heard some noises from him but couldn't understand much of it to be honest. Q. Okay, well what happened? Tell us what happened? A. Then they - as soon as I got out of the office was standing here, saw them, thinking that it was a joke. Saw the gun pointed at me and they started approaching to the bar and he came - he came into that area which is just behind the bar and he ask me to get on the ground. And I remember Sasha as well and security guard as well were forced to get on the floor. The thing I reme Q. Did you have a phone? A. Yes, I did. Q. Did you do anything with it? A. It was in my pocket. I had to give him. I was forced to give him. He took my phone from my pocket. Q. He took your phone from you? A. Yes. Q. Did you give it to him or did he take it from you, what happened? A. I was on the floor. I was on the floor and I remember like he was in ten seconds and - so can't remember exactly if I pulled it out from my pocket or he pulled it out from my pocket but I was showing my pocket where I was, yeah. Q. What happened to the phone, where did it go? A. I didn't know until the guy in the black left. At the end after he left we found the - Sasha found the phones in the bin. Q. All right, he's told you to get on the ground? A. Yes. Q. What's the next thing that's happened? A. Next thing. We stayed in there for a while and he took our phones. Then we were forced to move to the other area in the gaming room which I believe it's just behind the - the little thing here, it's a water feature, we were just a bit on south that so we were put on the floor again and I stayed on the floor. I can't remember - it feel too long but I think it was just minutes and so we were kept there. During that time I was just little bit lying on my floor, my face facing the floor and during that time I didn't see much, I was just doing what I was told. So, yeah. Q. Did you feel anything - had you felt anything at that point? A. There's of course a lot of things going through your mind, you might just die, you might just - you know, it's a situation you just don't know what to do to be honest. It's, yeah. Q. Had you been hurt at that point? A. Not very badly. I was hit from my head with the gun a few times, yeah. Q. Hit in the head with the gun a few times? A. Behind of my back, yes. Q. Behind where? A. Behind here. Q. The back of your head? A. The back of my head, yes. Q. You pointed to the back of your head with your arm and hand? A. Yes. Q. What did that feel like? A. That's, I've been to the army, it's a compulsory military service from my country. So I know how guns feels. That's knowing that how guns feels when you hold them, because of that I felt it was a plastic or something else. Because if I got hit with a real solid gun it'll hurt big time, yes. Q. Yes? A. Yeah, so with this gun it's, I don't know but I thought it just didn't feel like a solid real gun. Q. What did it feel like? A. It - not like solid metal but it's, for a second I thought wood or for a second I thought plastic but didn't feel like a solid metal, yeah. Q. When were you - you said you were hit a few times with a gun to the back of the head? A. Yes. Q. Up to the point you were in the gaming room near the water feature had you been hit to the best of your memory before that or by that point or were you hit later? A. The very two moments I can clearly say I remember 100% I got hit, one of them was towards to the end when I was taking the - he was behind me, the guy in the black, he was behind me and I could still feel the gun here and he was forcing me to open the e-cash machine which is the machine you put the tickets in and it gives you the money for the customers."
Mr Yildiz gave evidence that the robber then took himself, Sasha and the security guard to the disabled toilet, during which the security guard said, "Take it easy, mate", because the robber was hitting Mr Yildiz.
Mr Yildiz gave further detailed evidence as to what occurred by reference to the diagram in Ex B. He was asked: "Q. What is the next thing that you remember? A. The next thing I remember, okay, so we were on, I was on the floor for a while, assuming up until Sasha cleared all 30 machines, and after that I remember I was moved to another part of the gaming room, which I believe near it says the yellow things as you're here, and I think, I remember after Sasha cleared all the machines, the guy in the black took me to the bar and asked me to get the keys for the ecash machines, and the gun on my head he forced me to go to the bar. I took the keys and we came back to the where the ecash machines were. Q. When you say the bar, do you mean the bar near your office? A. Near office, just behind the office, yes. Q. He told you to get the keys? A. He asked me to get the keys, yes. Q. Did you tell him where they were? A. I didn't tell him where they were, he just said "keys, keys, keys", he like, when someone with a gun on your back or your head asking for keys, you just go and grab them. Q. Then from there you went to the ecash machines? A. Yes, then we went to the ecash machines, that was probably the first moment I saw the security guard and Sasha, and there was the first moment I remember, I saw them standing, standing and safe, so and gun on my head, I was asked to open the machine. It was you have to open the machine first, then you have to take, there's a big metal cash box in it, you have to take that one out with a different key, it's got another lip to open with the key, so it's a bit of a process. Having the gun in your head, I was a bit shaking, and so it took a little bit of time, that's why, and because he was taking time, that's where he hit me, quick, and eventually I managed to open it, take everything in the cash box and he showed me the bag and asked me to throw everything in the bag, which I did. Q. You've put money from the e-cash machines into a bag? A. Into a black bag - a black bag he was holding. Q. A black bag he was holding? And then what happened? What happened next? A. The next thing, so I put the money in there then we all three of us were forced to walk to the disabled toilet which is just behind the e-cash machines and I remember Sacha was in front of me and the black - the guy in the black was behind me and the security guard was next to him and I had the gun - he had the gun pointed behind my head and we all three were forced to walk into the toilets. Q. All right. And you went into the toilet? A. Yes. Q. Did the man with the gun say anything to you, that you can recall? A. I couldn't understand exactly the words but the message I took from the body language from the thing, "Don't come out. I'll shoot." That's the message I got from the situation. Q. Can you describe the man with the gun at all? A. Only with the size because he was like - it was like dark, it was completely dark. I couldn't even see holes in the eye like the whole body was covered in black. Even the hands. I couldn't see hands. Gloves. Big guy. He was solid, probably-- Q. How tall-- A. Yeah. Sorry? Q. Sorry, how tall was he? Approximately how tall was he? A. I would probably say 185 to 190 cm I would say. Q. So he was a big guy? A. He was a big guy, yeah, and I'm-- Q. Solid? A. Solid, yes. Q. Okay. Is there anything else you can - is there anything you noticed or recognised about him, or you can say what he looked like? A. Like it's - he remind me, later on but if I thought for that night, only that night without thinking, without after everything happen a few days later, a few weeks later, so on that night it was just I couldn't recognise anything but the size and the darkness. Just a black figure walking around. Yeah. Q. Okay, and what about the gun. Did you make any observations of the gun? A. No, it was behind me the whole time so I never had a chance to have a close look so wouldn't have an idea of what it actually was, yeah. Q. But you felt it? A. Yes. Q. I think you said-- A. The first time I saw was when I got out of the office and look from the distances, that was the only time I actually saw the gun with my eyes and that was like a bit of way, I don't know, like 5, 6 metres away from me and the gaming room being pretty dark. So couldn't see the gun exactly what it was looking like. Q. Did you see what colour it was? A. Black. It was black as well. Q. Could you tell how big it was? A. Hard to tell from a distance but it's just the size of a handgun, that's what I saw."
Mr Yildiz gave the following evidence as to what occurred when he, Sasha and the security guard were in the disabled toilet as follows: "Q. As a result of being told that by Sasha or made aware of that by Sasha, what did you do? A. When we were in the toilet, I checked everyone, including security and Sasha. First I tried to pull out my phone to call the police and realise it's not there and I ask security guard and Sasha, "Where's your phone? Where's your phone." Both say, "He took it", motioning the guy in black and then we just - I just realised no phones. So, in my head, I've got to get out of here. I have got to call police. We need help and when we got out, I got stopped by security guards to - not to leave the toilets and-- Q. When was that? A. It was happening in the toilet. So, I was focusing on getting out of the toilet and call help, call police. Q. Yes. A. Security guard tried hard to stop me, "Give it time. He might be in the office. He might be there." He tried to stop me and, eventually I didn't listen. I got out. I checked around. There was no one and then straight I went to the bar section to call the police. I used one of the phones, one in the office and one in the bar and somehow it just didn't work. Then Sasha gave me phone and at that point I ask, "Didn't you say the man in black took your phone?" Then she pointed the bin and where - that's exactly when I saw where our phones were. Q. Yes. A. Yeah. Q. As a result of seeing where your phones were, what did you do? A. I called the police immediately."
Mr Yildiz gave evidence that after the police arrived, he had a conversation with the security guard, but could not remember the details. He did remember what he described as an "interesting question about how much money was taken". He told him he did not know how much.
Mr Yildiz made a statement to the police on the morning following the robbery. He spoke further to police on 31 May 2018 and 13 June 2018 about being involved in a controlled operation, namely an idea of him extorting or blackmailing the security guard, Khaled Itani, for money in exchange for him not telling police that he suspected that Itani and his friend were responsible for the robbery.
Mr Yildiz gave evidence that the friend he referred to was a man who had come to the hotel a number of times and the accused had told him that it was his cousin. He did not know his name or where he was from, however, he had seen him multiple times.
Mr Yildiz gave evidence that the controlled operation took place at the Woolworths car park, Campsie, on 1 July 2018. During their conversation, Mr Itani made no admission to him about being involved in the robbery at all and denied being involved with the robbery.
Mr Yildiz identified the man he knew as the cousin of the security guard in two photographs taken from CCTV footage from the Belmore Hotel, which became Ex U.
Mr Yildiz was shown CCTV footage of the Belmore Hotel at 4.12am on 2 May 2018. It showed the security guard in his office and a conversation occurring between them. He gave evidence that the security guard had not had a conversation in the manager's office like that shown in the video on any other shift.
In cross-examination, Mr Yildiz gave evidence that he gave three statements to the police, the first on 2 May 2018, when the incident was still very fresh in his mind. The second statement was made on 8 August 2018, and he agreed that between 2 May 2018 and 8 August 2018, he and Satya Kong had had conversations about the robbery.
Mr Yildiz's third statement was made on 9 December 2020.
Mr Yildiz was cross-examined about money kept in two safes in the office. It was put to him that no money was taken by the robber from any safe in the office, but he stated that he was not sure as he didn't see what happened when they were in the toilet. He gave evidence that he did not give the robber any money from the office.
Mr Yildiz gave evidence that he did not remember the accused charging his phone in the office during shifts he had worked with him, but agreed that it was a possibility.
He also gave evidence that he never had a general conversation with the accused in any of those shifts about what he expected the security guard's practice would be whilst working in the hotel.
Mr Yildiz was cross-examined about the storeroom. On the night of the robbery, he could not remember entering the storeroom, but said it was possible. He was shown a number of passages from the CCTV footage of him entering the storeroom, at 12.45:36, at 12.58:57, and at 1.15:50. He was also shown footage of two uniformed policeman entering the hotel at 3.19am and the security guard in his office at 3.22am. He agreed that it was not a problem for him that the accused was in his office, but he could not remember the conversation.
Mr Yildiz was cross-examined on his evidence that he locked the front door to the premises on Burwood Road. He said he was the only one who had a key to lock those doors, however, he was then shown CCTV footage at 3.50am of the accused attempting to lock the door. He said he could not remember the accused assisting him with locking the door on that occasion, but CCTV footage at 3.52:55 showed Mr Yildiz and the accused at the front door, locking it.
Mr Yildiz agreed that when the armed robber had taken him, the accused and Sasha to the disabled toilet, he had said words to the effect, "If anyone gets out I'll shoot them". He gave evidence that he wanted to leave as quickly as possible, however, the security guard had said, "Let us wait till he's gone". It was put to him that at no point did the accused say to the robber, "Take it easy mate". Mr Yildiz responded: "A: He did say that. He did say that right next to me."
Mr Yildiz agreed that that did not appear in his first statement to the police.
In cross-examination, Mr Yildiz agreed that he did not mention to police that the accused said to the robber, "Take it easy mate", in his first two statements on 2 May 2018 and 8 August 2018, but that he included that in his third statement made in December 2020. When it was suggested that the accused did not say those words, he answered: "He said that, I remember it very clearly that because I found it really strange."
It was put to Mr Yildiz that the accused said to the robber, "Please calm down, don't shoot, we're doing everything you want", to which he answered: "A. I don't remember hearing that. That's - that's something I said that, too, that night."
Mr Yildiz agreed that he said nothing in his first statement about the security guard doing anything that he thought was unusual or strange. It was put to him that the reason for him not saying anything in his first statement about the accused saying or doing anything unusual or strange was because he did not remember anything strange or unusual when doing his statement on 2 May 2018. Mr Yildiz answered: "A. No, I did remember a lot of strange things, but I thought it would be taken into consideration as in just my assumptions and I had never faced anything like that, like, it just - in this kind of situations, you just need to be sure before you say something."
It was put to him that he just made up that explanation, which he denied. Mr Yildiz gave evidence that he spoke to police for the first time about things that he noticed that were unusual or strange at the end of the conversation at the police station in Campsie on 2 May 2018. He also denied that his conversations with Satya Kong influenced what he told police on 8 August 2018.
Mr Yildiz was cross-examined about his involvement in the police undercover controlled operation. It was put to him that police told him they suspected the accused's friend was responsible for the robbery and Mr Yildiz agreed that that was what he was thinking too. He discussed his suspicions with the police, which were not in his first statement. He gave evidence that the police asked him for an DNA sample, and at that time, he assumed that he might have been under investigation for being involved in the robbery. With respect to the controlled operation, he knew that police were asking him for assistance to see if he could get the accused to admit an involvement in the robbery, but the accused never did admit any involvement in the robbery. It was further put to Mr Yildiz that the accused never told him that the gentleman he had been introduced to was his cousin, which Mr Yildiz denied, saying: "I remembered he told me, 'he's my cousin'."
In re-examination, Mr Yildiz gave evidence that he went to the police station to make his statement around 9 o'clock and got back to the pub at around 2.30pm on 2 May 2018. He was asked about keys to the safes in the manager's office, one of which he did not have a key for. That was the smaller safe which contained up to $12,000.00, and the key was kept behind the door to the office on a ledge adjacent to the whiteboard.
Mr Yildiz gave evidence that, at the end of each shift, it was his job to put the money from the poker machines into the safe, whereas the licensee looked after the cash redemption machines. That money was put in the other safe by the licensee, Mr Andrews.
Mr Yildiz was asked how the robber communicated to him that he wanted him to open the cash redemption machines, and he answered: "A. At that point I remember he was being behind me, pushing me, gun I think on my head and he was telling me, 'keys, keys', and clearly I understood what he means."
In further cross-examination with leave, Mr Yildiz was shown CCTV footage from 2 May 2018 at 3.54am, camera 15 in DVR2. It showed the accused crouched at the front doors of the premises trying to lock the front door. There was no re-examination on that evidence and the USB drive containing the CCTV footage shown to the witness was marked for identification as MFI 3. It subsequently became Ex 6.

[6]

Evidence of Satya Kong

Ms Kong gave evidence that on 2 May 2018 she was employed as a gaming attendant at the Belmore Hotel. She had been working there for six months, and prior to that, worked at the Banksia Hotel for one year.
Ms Kong gave evidence that she worked night shift at the Belmore Hotel and her hours were normally 6pm to 4am. At closing time, it was her routine to tidy up the gaming area, wipe down the machines, and then collect the money from the 30 gaming machines at Belmore Hotel. On a copy of Ex B, she marked by number the location of each of the poker machines at Belmore Hotel. That document became Ex V.
Ms Kong gave evidence of her routine for retrieving money from the poker machines. The money from each machine was placed in a pencil case which was numbered according to the corresponding poker machine. Each pencil case was placed on a trolley and the poker machine door would be left open. This was done in accordance with instructions given by the manager, Mr Yildiz, to make it easier for the gaming attendant to turn the machine on in the morning. She was also helped by the manager to finish collecting the money on occasions.
Ms Kong gave evidence that the security guard would be present during the process of collecting the money, sitting between both entry doors. On 2 May 2018, that was the accused, whom she had known for the year that she was working at the Banksia Hotel. She worked with the accused at the Belmore Hotel on Monday and Tuesday nights. When she was closing up and collecting money from the machines, he would be sitting on machine numbered 8 in Ex V, facing the doors. The accused did not assist her in the collection of money or the closing procedures. Ms Kong gave evidence that she had no involvement in collecting money from the cash redemption terminals in the gaming area.
Ms Kong was asked: "Q. … before the robbery was there anything unusual about that particular night that you noticed? A. Yes. Q. What was it? A. The way that Khaled was acting when I was clearing out the money."
Ms Kong gave evidence that at 8pm that night, a patron had come in whom she felt was a bit suspicious. She gave evidence that he "just came in, walked in, walked around, and then he got a bottle of water and just left".
Ms Kong gave evidence about the closing procedures which included locking the doors and ensuring that the toilets were empty before she commenced collecting the cash from the poker machines. She was asked: "Q. On this particular occasion, did you hear any conversation between security and management about the - about closing procedures, insofar as the doors or anything else was concerned? A. Yes. I overheard Maz ask Khaled if the toilets were all clear and he said 'yes', and that's when I proceeded to do the clearance."
Ms Kong gave evidence that after she had collected monies from all of the machines, usually she would take the money to the manager's office and it would be placed in a drop-box safe located on the floor of the manager's office. There were two other safes in that office which contained money.
By reference to Ex V, Ms Kong gave evidence of the order in which she would collect money from the 30 gaming machines. On 2 May 2018, she started the collection process at machines 21 or 12, but could not recall where the accused was when she started that process. She gave evidence that she noticed when she was at machine 11 and 10 that he did a lap around the gaming room. When she was at machine 7 he did another lap and then when she was at machines 4 and 26, he asked her about closing the gaming doors, meaning doors to the gaming machines. She then gave the following evidence: Q. Doing your best, what did he say to you, what words did he use? A. He asked if I needed help closing the gaming doors. Q. What did you say? A. I said, "No, Maz wanted it this way". Q. Had he ever asked you that before? A. No, he has not. Q. Okay and then what happened? A. And then I continued on to machine 18 to 24 then the other row which is 14, 13, 9, 30, 16 and 15. And once I got to machine, I started on machine 8 and because I couldn't bend the stack door I proceeded to machine 28 and 27 and that's when I heard Khaled say my name. Q. What did he say? A. He just said Sasha. Q. When he said Sasha what did you do? A. I turned around and that's when I saw the armed robber holding the gun against them. Q. Against him? A. Against Khaled sorry. Q. Firstly, can you describe, the armed robber, could you describe him? A. He was roughly 170 to 180 centimetres. He was wearing all black, black beanie, black scarf around his face, completely like, black jumper, black pants. What I remember was a brown sort of Timberland style shoes and black gloves. Q. Can you describe his build? A. He was a medium size build. Q. Are you able to describe the gun he was holding? A. It was sort of a black pistol, pistol gun. Q. Can you tell us what happened from the time Khaled said your name and you saw the armed robber with the gun? A. From then I turned around. From behind the pillar, stopped and looked and then the guy robber had, came up and grabbed me by the shirt and dragged me, me and both Khaled towards the middle of the gaming room which is between machine 26 and 24. Told us to get on the ground and give us, give our phones to him. … Q. Did, what did you do with your telephone? A. I took it out of my back pocket and gave it to him. Q. What did he do with it, if anything? Did you see what he did with your phone? A. He grabbed both of our phones and then told us to proceed towards the gaming bar. Q. What sort of a phone did you have? A. I had an iPhone 6. Q. He told you to proceed to the gaming bar. What words did he use, do you remember? A. I don't remember what words he used no. Q. So what happened next, did you go to the gaming bar? A. Yes. So when we walked to the gaming bar Maz came out of the office and we all stood there, he looked at us like, in shock, thinking is this actually happening. And then once he realised that yes, it's happening that's when the gunman proceeded to push both me and Khaled towards the opening of the gaming bar. … Q. You were, right so, what's the next thing that happened? A. The next thing that happened was he told Maz to get on the ground then told both me and Khaled to go in. I felt the gun behind my back, on the back of the neck. He then asked Maz, "Phone, phone, give me your phone," and Maz didn't hear him properly so the robber had hit him a few times and that's when I said, "Maz, he wants your phone, give him your phone." So he grabbed his phone out of his back pocket and gave it to the robber. Q. Just to pause there for a moment. You said you felt a gun at the back of your neck? A. Yes. Q. Tell us about that. What do you remember about the gun being put at the back of your neck? A. When it was put behind the back of my neck I did hear a few rattles of it which made me believe that it was fake but I didn't want to do anything or say anything about it. Q. Could you feel it? A. Yes, I could feel it. Q. Can you describe how it felt? A. It felt pretty bad so-- Q. You said sounded, sorry, tell me again how it sounded, what you heard? A. I heard rattles. Q. Rattles? A. Yeah, so to me it sounded fake, yeah. Q. To me it sounded fake? A. Yes, like it was a fake pistol. Q. In terms of the, it had been pointed or held at the back of your neck, what did it feel like? What did the gun feel like on your neck? A. It just felt like hard plastic. Q. Hard plastic? A. Yeah. Q. ..(not transcribable).. Maz handed over his phone? A. Yes. And then the robber then put our phones into the bin which was right next to us. Q. Which was where sorry? A. Which was right next to us. Q. Feel free to have some water, are you okay? A. Yeah. Q. How long did you have the gun pointed at the or held at the back of your neck? A. It wasn't that long, it was only for a few second and then he focussed his attention on Maz. Q. Before that had you seen Maz hit with that gun? A. Yes. Q. What part of the, what point was that? A. It was when Maz was lying on the floor and didn't give the phone to the robber when he asked. Q. The phones are in the bin what happens next? … A. He then told us to get up. So I was, first was I think, he told us to get up and then we proceeded to go to the middle back to machine 26 and 24, then he asked Maz to go on the floor and Khaled as well. He gave us - when he asked them to get on the floor he gave me a black bag to put the pencil cases in there. Q. Did he say anything to you? A. He just said "money, get money." Q. You were standing up at that point? A. Yes, I was. Q. And Maz and Khaled were on the-- A. On the floor, yep. Q. You gave an answer earlier that you'd said after the phones were in the bin the focus was on Maz from what you could see? A. Yes, the main focus was all on Maz. Q. Why do you say that? A. Because he was - he only grabbed Maz. The gun was only pointed at him and the machine. It was really pointed to me or - and it wasn't really pointed at Khaled as well. Q. So, you're in a standing position when you were given, you said, a black bag? A. Yes. Q. Had you seen that black bag before? A. No, I have not. Q. Did he give it to you or show it to you or what happened with the black bag? A. He just gave it straight to me. Q. Did he say anything? A. That's when he said, "Money, get money. Get the money." Q. What did you do when he said that? A. So, that's when I proceeded to the trolley that had the containers with the money. Q. Where was that? A. That was between machine 28 and 27. Q. What did you do? A. That's when I proceeded to go to the trolley and get the pencil cases out of the trolley and into the bag. Q. How many pencil cases? A. There was - in the trolley there was only 27 because I did not finish taking the money out of 27, 28 or 8. Q. What did you do with the pencil cases? A. The pencil cases, I put them in the bag. Q. The pencil cases, the remaining pencil cases? A. I left them on the chair. … Q. What did you see Khaled do? A. He had gotten up and collected the pencil case, 27 and 28 and threw a pencil cases at me to put them in the bag. Q. Did you hear anything at that time? A. After about - that's when the robber yelled out to him to get back on the floor. Q. What words did he use? A. I don't recall what he had said. … Q. Once you had put the money on the bag what did you do with it? A. That's when I gave it to the robber. Q. What happened then? A. After that he then told Maz and Khaled to get up and told us all to go to where the CRTs were. Q. By CRT do you mean cash redemption terminals? A. Yes. Q. Yes? A. And then told Maz to open up the machine, but you need a key to open that machine up, so after that he then grabbed Maz and said, "Money, give me the money." Maz said, "I need a key. Key. I need the key." So, we all walked towards the gaming bar where the cash redemption terminal keys were. Q. You see the gaming bar on the map there? A. Yes. Q. Is that the area near the manager's office, just outside the manager's office? A. Yep. Q. So, everybody went there with the robber. A. Yes. Q. And then what happened? A. When we got there the robber had walked with Maz behind the bar while both me and Khaled were in front of the gaming bar. Maz then proceeded to get the keys out of the till and then came from around the gaming bar and walked back to where the machines were again. Q. Prior to that happening did you know where the cash redemption keys were kept? A. Yes. Q. And then what happened? A. And then after that Maz then opened the first CRT machine and taken out its stacker box while the robber was saying, "Hurry up. Hurry." And because Maz was shaking he said, "I couldn't, I'm shaking." That's when Khaled said, "Hurry up," so that he can go. Q. How did Khaled sound when he said that? A. A bit annoyed. Q. Yes. A. Then after that Maz had taken out the money out of the first box and then proceeded to the next CRT, which is right next to it, opened that, took out the cashbox and the money and then put it in the bag as well. Q. Where was - did you see the gun at that point? A. The gun was still pointed at Maz. Q. Then what happened? A. Then after all the money was put in the bag that's when the robber had said, "Bathroom." So, we all proceeded to go to the bathroom and after that he said that if we opened the door that he was going to shoot us. Q. And when you say "bathroom" are you talking about the unisex disabled toilet at the back of the hotel? A. Yes. Q. And then what happened? A. Then after that we were in there and Maz was going to open the door to see where or if the robber had left. That's when Khaled stopped him from opening the door and said, "Wait, he might still be here. He might still be in the office taking the money from there." And that's when Maz waited just a little bit longer and he opened the door and both Maz and Khaled walked out the door to see where the robber had went or if he had left. Q. Doing your best, how long do you think you were in the bathroom before the door was opened? A. Probably only for around for two to five minutes. Q. What was it? A. Two to five minutes. Q. And then what happened? A. And then after that I was still in the bathroom, so both Maz and Khaled came in and told me that he had left. Q. What happened next? A. After that we - I tried going through the gaming bar to dial triple-0, but it didn't go through, so we got our phones out of the bins and Maz called the police. Q. Did you have any conversation with Khaled between that time and the time the police arrived? A. No, it wasn't until after the police had arrived. Q. What was the conversation? A. He had asked me how much do you think the robber had left with. Q. In terms of the robber, how many times did you hear the robber speak during this incident? A. There was only roughly around five or six times. Q. What can you say about his voice, if anything? A. He had a deep voice and he sounded Middle Eastern."
Ms Kong was asked further about the evidence she gave earlier about the accused acting unusual on that particular night when she was clearing out the money. She gave the following evidence: "Q. What way was Khaled acting? A. He looked very agitated, a bit nervous, because he never used to walk like around the gaming room, he stayed in one spot, never asked to help or anything like that, so that's what I found strange with the offering of help and the constant keeping an eye on me."
Ms Kong gave evidence that after police arrived, she gave them permission to access her telephone for the purposes of a Cellebrite extraction. They also seized her shirt because the robber had grabbed her by the shirt when he first saw her. She gave a statement to police on the day of the robbery.
Ms Kong gave further evidence that during the time she had been working with the accused at Belmore Hotel, a week or so prior to the robbery, he introduced her to a friend as "Ibby's cousin", "which is a security guard who I used to work with at Banksia Hotel". That person was Ibrahim Droubi. The person who had been introduced to her had come into the hotel a few times prior to the robbery to play the gaming machines and drink. She had later identified them when showed stills by Detective Lindsay from the CCTV footage. She identified him on two photographs which became Ex W. She also marked on Ex V the location of the bin where the mobile phones were placed.
Two further still photographs were shown to Ms Kong, from which she identified a regular at the hotel by the name of Andrew and his friend. They became Ex X.
Finally, the CCTV footage, Ex Q, was played for the witness from 4.21:45 to 4.25:05. Ms Kong gave evidence that in that footage she was shown shutting down gaming machines 14, 13, 19 and 30, which were the poker machines closest to the storeroom area. In cross-examination, Ms Kong gave evidence that prior to Mr Yildiz becoming manager, there was another manager by the name of James Leatherbarrow, who she understood got fired for stealing money from the safe in the manager's office.
Ms Kong agreed that she and the accused had worked about 10 shifts together at the Belmore Hotel before the robbery, but that she had known the accused from the Banksia Hotel where they had worked together.
At the Banksia Hotel, while they were working together, Ms Kong agreed that there were a couple of occasions when the accused had helped her collect cash from the poker machines. When she started working at the Belmore Hotel with the accused she was quite familiar with him and talked to him about a number of matters. She agreed that on the night of the robbery she had a discussion with the accused about James Leatherbarrow being sacked because he had stolen money from the hotel. She agreed that she was quite comfortable with the accused on that night.
Ms Kong further agreed that during the clearing of cash from the poker machines, the accused would sit on machine number 8, but it was not the only machine that he would sit. She gave evidence that at times he would be sitting on the bench near the side door, but prior to the robbery she did not remember him walking around the gaming area while she was emptying money from the poker machines. She agreed that it was possible that he did, but she did not notice.
Ms Kong was cross-examined about [19] of the statement she made to police on 2 May 2018. She then identified on a photograph the gentleman she described in that paragraph as the person who came into the hotel around 8.30pm, who she had earlier described in her evidence as acting unusually. The photograph became Ex 1. Ms Kong gave evidence that she had kept an eye on that person whilst he was in the gaming room for a few minutes, however, she had never seen him before or since. She told police about him because he seemed suspicious.
Ms Kong gave evidence that in her second statement to police made on 1 August 2018, she had told police about the presence of the person she identified as Andrew "after they asked me who he was in the photo".
Ms Kong was cross-examined about the doors to the storeroom and gave evidence that it was not open to the public, but the storeroom door was not locked. She could not remember whether she entered the storeroom on the night of the robbery and was shown footage from MFI 3, in which she was depicted entering the storeroom, and having refreshed her memory, gave evidence that she would have most likely have gotten food for gaming, meaning to serve finger food to people who were playing the gaming machines.
It was put to Ms Kong that on the night of the robbery, it was the first time that she had left the poker machine doors open in the presence of the accused, which she denied. She agreed that during the closing procedure, the accused was walking around the gaming room, but could not recall that he had done that on previous shifts. She agreed that it might have been possible and was something that she had not thought about.
It was suggested to Ms Kong that there was nothing unusual about anything that the accused was doing that evening, with which she disagreed.
Ms Kong gave evidence that she had a conversation with the accused on that evening about the new system, which involved leaving the poker machine doors open. That was the first of any conversation she had had with the accused about the new system.
Ms Kong was asked about the accused walking around and doing laps while she was collecting money from the machines. She did not have a conversation with him about that, and did not ask him why he was doing it. Nor did she complain to the manager about that.
It was suggested to Ms Kong that at closing the manager did not ask the accused to check the toilets, to which she replied, "He did". She gave the following evidence about the robbery: "Q. The man with the gun, the robber, he told you and Khaled to get the money, didn't he? A. No, he didn't. Q. Didn't he say, "Money. Get me money"? A. He specifically said it to me. Q. And he was yelling? A. Yes. Q. And he was - he had a gun in his hand while he was saying these things? A. He didn't point it at me. Q. But that was pointed at someone? A. Yes. Q. And he was saying, "Money. Get money"? A. Yes. Q. It's the case, isn't it, that you put some of the money in the bag? A. Yes. Q. And the money was in pencil cases? A. Yes. Q. And Khaled put some of the pencil cases in the bag? A. Yes. Q. And Khaled gave you a pencil case; is that right? A. He gave me two. Q. And at that time the robber was holding a gun? A. Yes. Q. And he was saying things about, "Get me money. Get me money"? A. He only said it - he only demanded it once or twice. Q. Now, in relation to the gun, is it the case that it was - it was a dark gun? A. Yes. Q. And is it the case that it was all black? A. Yes. Q. No other colours that you could see. A. No. Q. Is that right? A. No. Q. Now, I understand that the robber took you, Khaled and Yilmaz to the bathroom; is that right? A. Yes, that's correct. Q. Just before the robber closed the door and left-- A. Yeah. Q. --he said, "If anyone gets out I'll shoot them"? A. Yes. Q. And he was holding the gun at that point? A. Yes. Q. Do you remember Khaled saying, "Let's wait until he's gone"? A. Yes, he did say that."
Ms Kong gave evidence that the accused never returned to work after the robbery and that she had not spoken to him since 1 August 2018. She agreed that she had spoken to the manager Yilmaz Yildiz on a number of occasions and that Yilmaz had told her he had suspicions about the accused. The first conversation was not either on the day of the robbery or shortly thereafter. She had discussed the robbery with Yilmaz only once or twice since.
In respect of the man who the accused had introduced her to as Ibby's cousin, it was put to Ms Kong that what the accused told her was that the man was "me and Ibby's cuz", which she denied.
Ms Kong was asked further about the statement she made to police on 2 May 2018. At [27], she agreed that she had said nothing to the police about the accused being agitated or nervous in that paragraph. Further, she agreed that nowhere in her statement did she say anything to police about the accused being agitated or nervous. She agreed that it was possible with the passage of time that she may have been mistaken about that.
Ms Kong also agreed that the only time the accused sounded frustrated on that evening was when she was talking to the manager about trying to open the CRT machine. She gave the following evidence: "Q. Now, is that at a point when the robber was screaming at Yilmaz? A. Yes. Q. And was that at a time when the robber had a gun pointed at Yilmaz? A. Yes. Q. And was that at a time when the robber seemed agitated? A. Yes."
Ms Kong was further asked about [55] of her statement in which she used the words, "Khaled sounded impatient". She was asked: "Q. Would you agree with me when I say that this was a long time ago? A. Yes. Q. So it was close to three years ago? A. Yes. Q. Would you agree with me when I say that it may have been that Khaled sounded frightened when he asked Yilmaz to hurry up? A. No."
In re-examination, Ms Kong agreed that she had taken two weeks off work following the robbery and worked until December 2018. She gave evidence that at one point during the closing procedure, when she was collecting money, she had moved the trolley closer to her when the accused was walking around the gaming room. She was asked: "Q. Why did you do that? A. Because I felt unsafe at that point. Q. Why? A. Because he was lingering a lot more."
On Ex V Ms Kong marked the location of the bench near the side door, about which she had given evidence.

[7]

Evidence of Constable Jin Choi

Constable Choi attended the Belmore Hotel with Senior Constable Elphege at 4.38am on 2 May 2018. Upon entering the hotel, he identified the accused (as the security guard), the night manager and a female gaming attendant. He spoke with the accused and obtained a version of events from him, which he recorded contemporaneously as follows: "About 4.15am I was in the stock room. There is a door there that is closed but not locked. I was doing my usual checks for close of day and about halfway inside the room I had just turned around when someone came up behind me and placed what I believe to be a gun against the back of my head and said, 'Don't move,' and then said, 'Phone, phone, phone.' I gave him my phone and he pushed me up out of the storeroom towards the counter in the VIP room. He saw Satya the attendant and said, 'Get on the floor, phone, phone, phone." Manager was behind the counter and had his hands raised in the air when he saw this. The robber did the same to the manager and got his phone as well. I was also on the ground lying faced down and he got us to move around together to open the machines to give him money. He then put us in the toilet and said, 'If you go out I will shoot you.' I waited for about two minutes before coming out. I didn't exit straight away and saw a four-wheel drive drive away. The man was 180 to 185 centimetres wearing long pants and long shirt. He had long hair, black, that was in a ponytail. He was wearing red gloves. His voice was deep so I thought it was a man. I went to check the storeroom because it was partially ajar. He didn't speak big words, so I'm not sure about the accent. It just sounded Aussie. It all happened in about three minutes. He didn't go anywhere else in the hotel. I think he was waiting in the storeroom. I'm not sure about the model of the car, just a four-wheel. It was dark, so I'm not sure about the colour. He had sunglasses on and I'm not sure how he covered his face. All I saw was black. I think his shoes were yellow. All I remember and saw was his long hair. I remember he also said, "Faster, faster." He initially struck me in the back of my head before the storeroom."
He then recorded the accused's details including his address and mobile number ending in 020.
In cross-examination, Constable Choi agreed that he was not there to take a statement from Mr Itani and that he did not give the accused a chance to read the statement, nor did he read it back to him. He was a Probationary Constable and gave evidence that he was instructed to obtain a version of events so that he could provide detectives some idea of what occurred. He wrote the version down as he was speaking to the accused.
There was no re-examination.
During the Crown case and at the conclusion of the evidence of Constable Choi, the accused made an application that the evidence in Ex N should be excluded retrospectively, and that the Crown should not be permitted to adduce two further pieces of evidence, namely: 1. A six page document of screenshots taken from the accused's phone, which included three photos of minor damage to a vehicle the Crown alleges was used by the accused and Omar Saadallah on 27 April 2018 when it was involved in a motor vehicle accident, together with messages sent from the accused's phone, including photographs sent to Ibrahim Droubi: Ex D on the voir dire. 2. A four page document containing photographs taken of emails sent from the accused's phone to two individuals and one corporation regarding the purchase of either a toy gun or a toy gel blaster pistol, alleged by the Crown to have taken place prior to and on 27 April 2018: Ex E on the voir dire.
Evidence was called on the voir dire and submissions made by counsel for the accused and the Crown. On 2 February 2021, I made the following orders: 1. The retrospective objection to exhibit N previously admitted without objection is overruled. 2. The Crown be permitted to adduce into evidence documents contained in exhibits D and E on the voir dire. 3. Subject to objection, evidence on the voir dire will become evidence in the trial.
What follows are my reasons for making those orders.

[9]

Evidence on the Voir Dire

The Crown called Detective Senior Constable Fretten to give evidence on the voir dire. As at 2 May 2018, he was a Senior Constable attached to Campsie Police Area Command and at 4.30am he received a phone call that there had been an armed robbery at the Belmore Hotel. After a briefing at Campsie police station, he attended the Belmore Hotel where there were already a number of uniformed police present.
Detective Fretten spoke to the night manager, Mr Yildiz, and collected his shirt which had been touched by the armed robber, and placed it in an exhibit bag. He also spoke to the bar attendant, Ms Satya Kong, reviewed some CCTV footage and spoke to the accused. The accused also reported that the armed robber had touched his shirt. Detective Fretten took his shirt and placed it in an exhibit bag. The accused was then driven to Campsie police station for the purpose of making a statement. Detective Fretten then gave the following evidence: "Q. Did you then take Khaled Itani's mobile phone? A. Yes, I did. Q. Do you recall at what point, having regard to the taking of that statement, you took the phone? A. I don't recall exactly the timing. It may have been after taking the statement. I'd say it would have been after I'd taken the statement. Q. What was the reason for taking the phone? A. Khaled had told me that the phone had been handled by the person who committed the robbery and I believed that it had some - again, some forensic value for the investigation to help identify any offenders. Q. Tell his Honour what happened at that point? A. When I did mention that we were going to seize his phone he did become nervous and requested that he could delete some photographs from his phone, and I declined him to do that. Q. Why did you decline? A. Because that - for starters, we didn't want him handling the phone again because I didn't want him handling the phone again because it could contaminate any forensic evidence on the phone. Secondly, I guess his nervous behaviour sort of made me - it raised some suspicion with me as to why he felt the need to delete things from the phone once I mentioned that we wanted to see the phone. And we didn't want anything seized from the, sorry, we didn't want anything, sorry, deleted from the phone before it was returned. Q. What suspicions did it raise with you? A. I guess I didn't know, the fact that he wanted, he didn't want things seen by police that was on that phone so to me that raised a suspicion that he was trying to hide something, potentially trying to hide something and that just drew my attention so-- Q. After you declined to, declined his request did you ask him for the PIN code to that phone? A. Yes, I did. Q. Did he give it to you? A. Yes. Q. What did he say do you recall? A. Yeah, he said it was 535666. Q. 535666? A. Yes. Q. Did you ask him whether he needed any phone numbers on his phone prior to police examining the phone? A. Yes, I did. Q. Did he tell you no? A. That's correct. Q. Why did you ask him that? A. Because I knew we were taking his mobile phone, if he needed to contact friends, relatives, loved ones. After what had happened he might have needed to contact family to either be picked up or to explain what had happened. Q. After you took a statement from Mr Itani did you ask whether he would consent to a forensic procedure by way of buccal swab? A. Yes, I did. Q. After you explained the various things to him, the forensic procedure information sheets et cetera, did he consent to a forensic procedure being performed? A. Yes, he did. Q. It was carried out about 2.30am? A. That's correct. Q. Then did Mr Itani tell you he was going to be picked up from the police station by his brother-in-law? A. Yes, he did. Q. Did he leave the police station shortly afterwards? A. Yes, he did. Q. Once he'd gone what happened? A. I tried to use the PIN code that he supplied me for the mobile phone and it was an incorrect PIN code, it didn't work for that phone. Q. As a result of discovering that what did you do? A. I contacted his partner Zahara, I had her phone number and requested her contact Mr Itani's brother-in-law's phone to see if he could find that, the correct password for that phone so we could get the process under way so he could get his mobile phone back. Q. Do you mean password or PIN code? A. PIN code sorry. Q. Did Zahara say anything to you? A. She said, she said to me, "My brother-in-law you mean, sorry, by his brother-in-law you mean my brother in Adelaide?"
Detective Fretten gave evidence that at 2.50pm on 2 May 2018, he called the accused's partner again and had a further conversation with her.
Detective Fretten gave evidence that at 1.30pm on 2 May 2018, the accused came to Campsie police station and had a further conversation which was recorded in his police notebook in the following terms: "Khaled returned to collect his phone. I advised him that I needed his PIN code to access it before we could download it and return it. Khaled gave me the PIN code of 353666. Khaled asked, 'Can I get some phone numbers from the phone?' I said, 'I asked you what numbers you needed when I got your phone earlier and you said none.' I said, 'What numbers do you need today? We might be able to have your phone back by the end of the day.' He said, 'If you give me my phone I can get the phone numbers.' I said, 'I can't give you your phone back until it's been examined'." Q. Did you form any view in relation to the phone when he said the words to you, "If you give me my phone I can get the phone numbers"? A. Sorry, the question at the time when he said that? Q. Yes. A. Yeah, I thought that was raising some suspicion there as he already told me earlier on that he didn't need any phone numbers and then when I've asked him what numbers he does need instead of, I don't know, telling me what numbers he did need and then me facilitating that request, him requesting that he handles the phone to me was raising some suspicion there. He didn't need to handle the phone for him to get what he wanted. I could have facilitated that and we could have still preserved the evidence. Q. Excuse me, sorry. And what suspicions did it raise with you? A. I just, it seemed like his earlier request to delete some photos and now his request of wanting to handle the phone to me seemed like he was possibly trying to hide something, maybe disposing some evidence of something, I don't know whether or not he'd be maybe hiding something or trying to get rid of something. Q. So at 1.30pm he's given you 353666? A. That's correct. Q. Earlier he's given you 535 666? A. Yes. Q. When he gave you that number what did you do? A. Mr Itani had left the station. I went to see if that PIN code for that - that he had then provided 353 666 activated the phone and unlocked it and it didn't unlock it, so it was the correct PIN code. Q. Was anything operating on your mind-- A. Yeah, that to me raised more suspicion, the fact that everything that I've just mentioned as well as two incorrect PIN codes to me that was raising a suspicion that he didn't want us obviously to access something within the phone. Q. The next thing - we're still on 2 May 2018? A. Correct. Q. One of the next things that happened was that you and Detective Senior Constable Braz went to Mr Itani's address? A. Yes. Q. In Queensborough Road, Croydon? A. Yes. Q. But he wasn't home? A. No. Q. So, you went back to the station, you and Detective Braz? A. Yes. Q. And at that point you entered the mobile telephone of Mr Itani into the police exhibits forensic information and miscellaneous property system? A. Yes."
Detective Fretten gave further evidence that he did not believe that he had retrieved the exhibit and tried to access the phone thereafter. He had requested a call charge record and reverse call charge record from Optus for the accused's mobile phone service ending in 020.
In cross-examination, Detective Fretten was taken to the statement he made at [9] where he stated that he seized the accused's phone. He was asked: "Q. What do you mean by "seized"? Does that mean you've taken the phone and you're not giving it back until the police are done with it? A. I've taken it, yes, I've taken the phone. Q. Can I ask you this? Did you - when you seized Khaled Itani's mobile phone did you caution Khaled Itani? A. He wasn't a suspect. Q. Did you tell him that he didn't have to hand over his mobile phone? A. I explained to him that this is the process, and we believe that there's forensic evidence on it and I believed that there was evidence of a commission of an offence. I explained the process behind why we're going to seize the phone, why we're going to take the phone and he was fine with that. Q. And in terms of forensic evidence did you have in your mind DNA evidence? A. At the time, yes. Q. So, you didn't have in your mind the actual data contained in the phone; is that right? A. At one point I thought forensic evidence and as I continued to - as it continued on then I think well we'll need to keep the data from it was well and I believe that we took the data from the other phones as well. Q. No, no, at the point that you asked for the phone, so when you first said Mr Itani, give me your phone or words to that effect you were only thinking about DNA evidence potentially being on the phone; is that right? A. No, I explained it all to him. Q. Is that right? A. Yes. Q. At some point you formed a view that there may be information contained on the phone in terms of data relevant to the investigation. A. Potentially. Q. Was this when you say that Mr Itani requested to delete some photographs? A. What was the question? Was this the point? Q. Do you remember giving evidence earlier today that Mr Itani requested to delete some photographs off the phone? A. Yes. Q. And this was shortly after you asked for the phone for the first time? A. Yes. Q. And after he asked to delete some photographs off the phone is that the point when you thought to yourself there may be data contained on the phone that may be of interest to the police investigation? A. Before that. When we first look at it, okay, there's always the potential that it could be evidence of the commission of an offence or something that could assist in the investigation on those phones. Q. Yes. A. So, I already had in my mind that forensically there could be DNA on it, but potentially there could also be something within the phone that may assist in the investigation and then he became - then he started to act nervous. Q. And when he started to act nervous did you caution Mr Itani? A. No. Q. Was that because he still wasn't a suspect at that-- A. Correct. Q. Your suspicion wasn't such that you felt as though you could place Mr Itani under arrest; is that correct? A. I just - well I wasn't going to place him under arrest. It raised my suspicion, but he wasn't - it wasn't at the point where he was a suspect. It wasn't near that point of him being a suspect. Q. When you asked Mr Itani for the phone do you remember that he said that he wanted to delete some photographs of his mother off his phone? A. No. Q. Do you have any recollection of anything that Mr Itani had said about the photographs that he wanted to delete? A. No. Q. Is it possible that he may have said that he wanted to delete some photographs of his mother, but you can't remember? A. No. Q. Now, did you tell Mr Itani that we are going to download the data from the mobile phone? A. Yes. Q. Did you tell Mr Itani he had a choice as to whether or not he could allow that to occur? A. No, I explained the process to him that the phone was going to be seized originally - not originally, but for those two purposes, to get the forensic evidence for DNA and download the phone and there wasn't the - he originally showing nervousness and wanted to delete the photos but never requested that he didn't want to hand the phone over or anything like that. Q. Let me ask you the question this way. Did you ask Mr Itani for permission to go through-- A. No. Q. --the data on that phone? Did you ask Mr Itani for permission to download the contents of his phone? A. No. Q. Did you inform Mr Itani that the phone would go through a Cellebrite analysis? A. Yes. Q. And did you ask for Mr Itani's permission to-- A. No. Q. --go through the Cellebrite analysis? A. No. Q. And isn't it the case that if Mr Itani had said "I don't want to give you my phone, I'm going to take it with me," would you have allowed that to happen? A. No. Q. You would have insisted that the phone stay with the police? A. I would have taken the phone because I suspected that it had evidence of the commission of an offence-- Q. So, at that stage Mr Itani wasn't free to take the phone away? A. No. Q. Now, at some point you asked Mr Itani for the PIN number? A. Correct. Q. When you asked for the PIN number did you caution Mr Itani? A. No. Q. And is that because there wasn't enough information to give rise to a reasonable suspicion such that you felt the need to caution Mr Itani? A. He wasn't a suspect. Q. And when you asked for the PIN number did you tell Mr Itani that you don't have to provide the PIN number? A. No, I didn't. Q. Did you tell Mr Itani that he otherwise had a choice as to whether or not he wanted to provide you with his PIN number? A. No. Q. And I understand that you asked Mr Itani for the PIN number again later in the day? A. Correct. Q. Did you caution Mr Itani at that point? A. No. Q. And it's possible that you may have had a third discussion with Mr Itani about the PIN number closer to the end of your shift; is that right? A. That's correct. Q. And you didn't caution him then; is that right? A. No. Q. And the reason why you didn't caution him is you didn't feel as though you had enough information to raise a suspicion to the point where you felt that a caution was necessary; is that correct? A. He wasn't a suspect at that stage."
The Crown tendered a statement of Detective Senior Constable Casey Braz dated 5 March 2019. Detective Braz was not required for cross‑examination and his statement became Ex A on the voir dire. Detective Braz attended the location of the armed robbery at 5.25am on 2 May 2018. Whilst there, he had a conversation with the accused and asked him what happened. At [6] of Ex A he set out what the accused told him.
In his statement, Detective Braz set out that on the afternoon of 2 May 2018 he had attended the accused's residence at Croydon Park with Detective Fretten, however, there was no answer at the door. On 3 May 2018, he collected the accused's mobile phone (Exhibit number ending in 697) from the exhibit storage room and attended Ashfield police station where he handed the exhibit to Senior Constable Duarte so that the phone could be analysed.
Detective Braz, at [15] of his statement, set out that on 4 May 2018 the accused presented to Campsie police station to collect his mobile phone. Detective Braz collected the exhibit (ending in 697) from the exhibit storage room and returned the phone to the accused, for which he signed an exhibit return receipt.
Exhibit B on the voir dire was a statement of Senior Constable Kevin Duarte. He was not required for cross-examination. Senior Constable Duarte was certified by the New South Wales Police Force to operate the Cellebrite mobile forensic extraction device, which enables an operator to identify, copy and present data stored on mobile devices. On 3 May 2018, he examined the mobile phone delivered in exhibit bag ending in 697, labelled "1 x black coloured apple iphone in black case seized from Khaled Itani".
On 4 May 2018, Senior Constable Duarte examined the mobile phone. Written on a post-it note attached to the phone was a six digit number - 273030. When he switched the phone on, it was locked and passcode protected. Using that six digit passcode, he successfully accessed the handset's settings and in doing so, obtained multiple screenshots of what was displayed on the handset. He then used the Cellebrite extraction device to copy data and produce a machine generated report detailing data stored on the phone. The Cellebrite reports contained data, including the number of phone book contacts (206), SMS text messages (105), multi-media messages (1), and instant messages (541). No email messages were recorded. Reports also recorded call logs, including incoming, outgoing and missed calls, together with browsing data.
Senior Constable Duarte obtained a number of exhibit photographs of the handset, a number of photographs of screenshots of settings and application data visible on the handset's screen.
He extracted the SIM card from the phone and used the Cellebrite device to copy protected data stored on the SIM card. The report obtained revealed there was no relevant data stored on the SIM card in respect of contacts, SMS text messages or call logs.
Senior Constable Duarte then copied the data he had obtained and 127 photographs in relation to the exhibit and examination onto a DVD-R disc. The exhibit was then returned to Detective Senior Constable Fox from Campsie Police Area Command.
Exhibit C on the voir dire were two statements from Mr Da-Ren Xie (Exs C.1 and C.2). Exhibit C.1 was a statement made on 29 June 2018. Mr Xie conducted an e-bay business selling plastic toy guns and computer keyboards imported from China. On 14 May 2018, Detectives Lindsay and Jouni spoke to Mr Xie in relation to the sale of Desert Eagle Gel Blaster toy gun. Mr Xie was shown a one-page document consisting of text messages and he confirmed that the text message conversation took place on 27 April 2018, in relation to the sale of a gel blaster toy gun. The phone number of the person sending the messages ended in 020. He had not met the person and did not know who he was. He arranged to meet the person in the car park at Super IGA in Beaumont Hills, and spoke to the person over the phone a few times in the lead up to that meeting.
When the man arrived, Mr Xie said he was with another person and they had driven there in a dark silver coloured SUV. He described the man who purchased the gun as "middle eastern, in his 20's, around 175 cms tall, skinny build with dark short hair and fair complexion". The other man was also described as being "middle eastern, around the same age and similar height as the first guy, and he was a little bit fat".
Mr Xie showed the man the Desert Eagle Gel Blaster toy gun and sold it to him for $130, which he paid in cash. He provided the police with a Desert Eagle Gel Blaster toy gun as an example of what he sold on 27 April 2018. He was shown three photographs by police of exactly the same Desert Eagle Gel Blaster toy gun which were annexed to his statement.
Exhibit C.2 was a statement made by Mr Xie on 23 January 2019. It recorded that, in his initial statement, there was nothing about the male who bought the gun running late to the meeting in Beaumont Hills. He had previously mentioned this to detectives, but it was not included in the statement.
Mr Xie stated that the man who bought the gun was around 20-30 minutes late to their meeting in Beaumont Hills. When he arrived, the man told Mr Xie they were late because "they had come from far away and on their way to the meeting they were involved in a car accident".
Mr Xie stated that the meeting had been very quick, lasting a matter of minutes, perhaps three or so minutes, and when the men arrived in their car they parked around 30 metres away from where he was parked.
Mr Xie then took part in an identification process where Detective Lindsay showed him two separate sets of 20 colour photographs of different males to see if he was able to recognise anyone in relation to the sale of the Desert Eagle Gel Blaster gun. In the first bundle, he identified the man in photo 8 as looking similar to the man he remembered selling the gun to. He stated that he was not saying that this was the person, "just that he looks similar".
Exhibit D on the voir dire were three pages of photos, together with three pages of messages screenshotted from the accused's phone. The photos revealed some minor damage to the front of the vehicle rented by Omar Saadallah, which on 27 April 2018 was sent to Ibrahim Droubi at 8.57pm.
The documents contained in MFI 1, the subject of this application, became Ex E on the voir dire.

[10]

Submissions on behalf of the accused

Counsel for the accused relied on a written outline of submissions regarding admissibility of evidence obtained from the search and analysis of the accused's mobile phone. It was submitted that the court would find that the accused did not voluntarily provide his phone, nor the PIN number, to police, but rather, was compelled to do so. There was no suggestion that anything was said to the accused that he had a choice and so much was made clear from the refusal of police to allow the accused to delete some photographs from his phone. Nor did the police seek his consent to search through his phone and no warrant was secured to allow for seizure of the phone. Further, at the time the phone was seized, there was no evidence to suggest that the accused was a suspect.
It was submitted that whilst the police officer may have had reasonable grounds for believing that the physical mobile phone itself may provide evidence of the commission of the offence, it having been handled by the armed robber, the same could not be said of the data contained within the phone. The accused submitted that the evidence was obtained unlawfully. There was no statutory or common law power that allowed the police to do what they did in the circumstances of this case.
The accused submitted that there was no general power in Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") to seize items found otherwise as a result of a search, and that s 21 cannot apply in the present circumstances.
Counsel relied on Ghani v Jones (1977) 1 QB 693, where Lord Denning MR set out five requisites required at common law for the exercise of a power to seize property without a warrant. The second of those requirements was stated to be (at p 1705): "Second: the police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or as material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber)."
Counsel submitted that that second requirement was not made out here with respect to data on the phone. Counsel noted that the decision had been followed in New South Wales, but Heerey J in the Federal Court in Challenge Plastics Pty Limited v Collector of Customs for the State of Victoria (1993) 115 ALR 149, (1993) 42 FCR 397, declined to follow Ghani v Jones, preferring instead a decision of the Victorian Full Court in Levine v O'Keefe [1930] VLR 72.
It was submitted that interference with the data contained in the accused's phone was unlawful and therefore the evidence obtained was unlawfully obtained. The accused therefore submitted that it ought to be excluded pursuant to s 138 of the Evidence Act 1995.
In his oral submissions, counsel for the accused submitted that the illegality of the evidence arose from one of two things. First, it was illegal for the police to go through the phone without the accused's permission and download data using the Cellebrite device. Secondly, given the suspicion that Detective Fretten gave evidence about, he was required to caution the accused.
It was submitted that the evidence of Detective Fretten established that he seized the phone, that he would not return it if the accused had asked him for its return, and that he did not ask permission to seize the phone or to download material by Cellebrite or any other means. The police did not ask if they could take screenshots from the phone, and on the evidence on the voir dire, the court would be satisfied that the accused did not voluntarily provide his phone or the PIN number to allow police to download data or conduct a Cellebrite examination.
Counsel submitted that there was no suggestion that the accused had a choice. In fact, the court would be satisfied that the accused had no choice and the phone was taken away from him without his permission and that police were going to do that whether he liked it or not.
There was no warrant that allowed the seizure of the accused's phone, nor was there a warrant procured allowing police to examine the contents of the phone. The police officer gave explicit evidence throughout that the accused was not, at any relevant time, a suspect.
Counsel referred to s 139(2) of the Evidence Act as illustrating the meaning of impropriety. Here, the impropriety arose because the police did not have enough evidence to charge or caution the accused, and suspicion was not sufficient to engage s 21 of LEPRA. There was no other general power to seize and examine exhibits set out in LEPRA.
Counsel rehearsed his submissions as to Lord Denning MR's judgment in Ghani. He referred to three New South Wales decisions which had followed Ghani, they being Tye v Commissioner of Police (1995) 84 A Crim R 147; Greer v Commission of New South Wales Police (2002) 128 A Crim R 586, [2002] NSWSC 356; and R (Cth) v Elomar (No. 11) [2009] NSWSC 385 per Whealy J.
In relation to the factors that the court may take into account pursuant to s 138(3), counsel submitted as follows: (a) The evidence was probative but not the most important piece of evidence in the prosecution case. Its probative value related to linking the accused's mobile phone to the vendor of the fake pistol, Mr Da-Ren Xie. In relation to that, there were a series of text messages between the mobile phone of Da-Ren Xie and the mobile phone of the accused which were attached to the statement of Mr Xie. So that part of the evidence was not objected to by the accused. Thus, the Crown would have evidence of the link between the accused's mobile phone and Mr Xie. Thus, in terms of the probative value of the evidence in question, whilst at first blush the probative value may appear to be extremely high, it was not so high because the Crown had other evidence corroborative of the telecommunications or text messages exchanged between Mr Xie and the accused's mobile phone. That applied to all of the evidence in Ex E on the voir dire, which was formerly MFI 1. (b) Counsel adopted his submission in respect of (a) above in regard to the importance of the evidence in the proceedings. (c) There was no dispute that the accused was facing a serious charge. (d) In terms of the gravity of the impropriety or contravention, counsel submitted that the interference with private property of citizens is a matter of great gravity. (e) In respect of whether the impropriety or contravention was deliberate or reckless, it was submitted that there was clearly no malice on the part of the police officer, nor was his action deliberate or reckless in terms of the contravention. The accused was not suggesting that the police officer knew what he was doing at the time was unlawful, or could be contravening the law, however, his actions still constituted an impropriety as defined in the Act. (f)(g) of ss (3) do not apply. (h) In respect to the difficulty (if any) of obtaining the evidence without impropriety, it was submitted that the police could have got a warrant. The level of the police officer's state of suspicion may have been relevant to that determination. However, because the police officer gave evidence that he did not have enough information to justify a suspicion to lay a caution, that was a consideration as to whether or not the police officer may have been able to obtain a warrant to search the phone.
Ultimately, counsel submitted that the desirability of admitting the evidence does not outweigh the undesirability of omitting evidence that had been obtained contrary to law.
Counsel also relied on the Court of Criminal Appeal's decision in R v Riley [2020] NSWCCA 283. In that decision, Bathurst CJ referred to the factors in s 138(3) as mandatory but not necessarily exhaustive (at [110]). His Honour went on to state at [111]: "Though it is correct that the matters to be taken into account in s 138(3) pull in different directions, and it is certainly correct that minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, there can only be one correct answer." This led his Honour to conclude (at [112]) that appellate review of the decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40.

[11]

Submissions on behalf of the Crown

The Crown submitted that the onus was on the accused to establish the relevant contravention or illegality. The Crown submitted on this point, the accused may be on strong ground, however, the Crown relied on the evidence of Detective Fretten in which he told the accused the phone was going to be seized because it may have some forensic evidence. When asked in cross-examination whether the accused had a choice as to whether or not he could allow that to occur, Detective Fretten said, "No, I explained the process to him".
The Crown referred to Detective Fretten's evidence that, at the point of handing over his mobile phone, the accused started to become nervous and there followed what was described as "cascading or revolving, evolving conduct of the accused", that lay suspicion on suspicion in relation to what might be on the phone in the mind of Detective Fretten.
The Crown submitted that although Detective Fretten conceded he did not have grounds to arrest the accused, and thereby the need to caution did not arise because the accused was not considered a suspect at that particular point in time, the power to seize and detain the accused's mobile phone arose pursuant to s 21(2)(b) of LEPRA.
The Crown submitted that the accused's request to delete photographs from the phone and his request at a later point to obtain telephone numbers that he had not earlier sought, gave rise to further suspicion in the mind of the officer who seized the phone. Also, the accused had provided incorrect PIN numbers on two occasions.
In all of the circumstances, the Crown submitted that the accused had not discharged the onus upon him to establish an illegality or contravention within s 138, relying on s 21(2)(b) of LEPRA.
The Crown made further submissions in respect of the matters outlined in s 138(3). The probative value of the documents in Ex N, which were screenshots of the accused's iPhone settings captured by Senior Constable Duarte, included identification of significant locations where the phone had been. Beaumont Hills was recorded as a significant location visited by this mobile phone on 27 April 2018, the date the Crown submitted that the gun used in the robbery was purchased by the accused and Mr Saadallah from Mr Xie at Beaumont Hills. Thus, the probative value of that evidence was very high, going to the identity of the parties who were present at the meeting with Mr Xie on 27 April 2018. The Crown submitted that it gave rise to an inference that the accused was in fact the purchaser of the Desert Eagle Gel Blaster pistol subsequently used by the robber at the Belmore Hotel.
The Crown submitted that the evidence contained in Ex E on the voir dire (formerly MFI 1) comprised photos taken from the accused's iPhone captured by Senior Constable Fox. They were not part of the Cellebrite examination. It captured email communications with a number of sellers on a website known as Gumtree. It was submitted by the Crown that the probative value of that evidence was very high. Taken with Ex N and the text messages between the accused's phone and that of Mr Xie on 27 April 2018, it provided the basis for an inference that the accused was the purchaser of the Desert Eagle Gel Blaster pistol.
In respect of Ex D on the voir dire, that exhibit contained three screenshots of damage to the front of the car hired by Mr Saadallah. This damage was said to have occurred on 27 April 2018 on the way to meet Mr Xie, causing the men to be late for that meeting.
The Crown submitted that this evidence, linked with the explanation given by the purchaser of the Desert Eagle pistol to Mr Xie for being late to the meeting on 27 April 2018, also ties in with the photographs of the damaged car sent by the accused to the phone of Ibrahim Droubi at 8.57pm on that day.
The Crown submitted that the evidence was highly probative of the identification of the two men that Mr Xie dealt with on 27 April 2018 as the accused and Mr Saadallah.
The Crown relied on R v Riley, supra, applying IMM v The Queen and Bauer v The Queen, in submitting that "in assessing probative value, it is necessary to take the evidence at its highest, excluding considerations of credibility and reliability".
In relation to the gravity of the contravention, the Crown submitted that any contravention was not grave, having regard to the evidence of the police officer, Detective Fretten, particularly as he was on notice that the provision by the accused of his mobile phone to police was conditional upon deletion of material from it. As a police officer of 13 years, such a request would arouse suspicion. The contravention in the Crown's submission was not deliberate and did not consciously set out to abrogate the accused's rights. Further, it was highly unlikely that any other proceeding would be taken in relation to the contravention and also unlikely that the evidence would have been obtained at all without it.
The Crown submitted that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

[13]

Determination

Section 138 of the Evidence Act 1995 provides relevantly as follows: "138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained - (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, Is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account - (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Polical Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
The first question to be determined is whether the evidence contained in Ex N, and the evidence contained in Exs D and E on the voir dire, were obtained improperly or in contravention of an Australian law, or in consequence of an impropriety, or of a contravention of Australian law, pursuant to s 138(1)(a) or (b).
I reject the accused's submission that he did not voluntarily provide his phone to the police and that he had no choice in doing so. In the circumstances of this case where the phone had been handled by the armed robber and retrieved from the bin where he placed it, together with the two other phones, the police officer, Detective Fretten, had power to seize and detain the item pursuant to s 21(2) of LEPRA, which provides as follows: "21(2) A police officer may seize and detain - (a) All or part of the thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) All or part of the thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) Any dangerous article, and (d) Any prohibited plant or prohibited drug in the possession or under control of the person in contravention of the Drug Misuse & Trafficking Act 1985, (e) Found as a result of a search under this section."
Here, the power to seize and detain arose pursuant to s 21(2)(b).
It is clear that at the time the phone was seized, Detective Fretten did not have any reason to suspect that the accused was involved in the commission of the armed robbery and there was no grounds for issuing a caution to him. I am satisfied, however, that Detective Fretten did, at the time of seizing the phone, explain to the accused that the phone would be subject to forensic examination and that that would include Cellebrite examination of the phone's contents.
I am further satisfied that suspicion was aroused in the experienced police officer, first, when the accused asked to remove photographs from the phone, and secondly, when on two occasions, he provided an incorrect PIN number to enable the police to access the phone's contents, even though that suspicion did not rise to a level so as to form a basis for arrest of the accused, on any charge, nor did it rise to a level where the accused required to be cautioned.
I am therefore satisfied that the police officer acted in accordance with his power to seize and detain the phone. The impropriety said to arise here by the accused is that that power did not extend to examination of the phone's contents.
There is no definition of the word "detain" in LEPRA, however, in its ordinary meaning it cannot extend to "examine". There was therefore no statutory power for the police to examine the contents of the phone for the purpose of downloading data contained in it. However, at common law, the five propositions set out by Lord Denning in Ghani v Jones, supra, have been applied in this jurisdiction to determine whether impropriety has taken place. In Ghani v Jones, there was a search of premises which had taken place without a warrant. The five propositions are as follows: "First: the police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of first importance that the offender should be caught and brought to justice. Second: the police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or as material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber). Third: the police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is an accessory to it, or at any rate his refusal must be quite unreasonable. Fourth: the police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or to preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned. Finally: the lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards."
Here, the first two conditions set out above were met. The police had reasonable grounds for believing a serious offence had been committed, namely, the armed robbery at the Belmore Hotel. I am also satisfied that the second condition was met, namely, that the accused's phone was material evidence to prove the commission of the crime, at least in respect of the DNA evidence or forensic procedures to prove the identity of the armed robber.
The third condition was not made out, namely, that at the time the phone was seized, the police officer had no reasonable grounds to believe that the accused had committed the crime or was implicated in it, or was an accessory to it. The fourth condition was met in that the article was returned within two days of its seizure to the accused following examination.
The Crown has conceded that there was impropriety in its submission that the accused's application was on solid ground in respect of s 138(1) of the Evidence Act. I am therefore satisfied that the accused has established impropriety, if not a contravention of an Australian law, as LEPRA is silent on the right to examine once an item is seized and detained. I am therefore satisfied that the evidence was obtained both improperly pursuant to s 138(1)(a), and in consequence of an impropriety pursuant to s 138(1)(b).
The question then arises whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. I therefore have regard to the matters outlined in s 138(3), which, as held in R v Riley, supra, are mandatory but not exhaustive.
First, pursuant to s 138(3)(a), the probative value of the evidence was generally high. Exhibit N comprised screenshots of inter alia settings on the phone which included significant locations. That evidence placed the phone at Beaumont Hills on 27 April 2018, the date on which Mr Xie met with two men and sold a Desert Eagle Gel Blaster pistol. It is highly probative evidence in the Crown case to establish that it was the accused who purchased that item.
The evidence in Ex D on the voir dire comprised three photographs of damage to the vehicle alleged to have been hired by Mr Saadallah, showing damage caused to the vehicle on 27 April 2018. That evidence, the Crown submits, ties in with the explanation given by the purchaser of the Desert Eagle Gel Blaster pistol to Mr Xie that they were late because they had been involved in a traffic accident. The exhibit also includes messages sent to Ibrahim Droubi, together with photos of the damage, later that day. The evidence is highly probative to the Crown case.
Exhibit E on the voir dire which comprised four pages of messages with various vendors on Gumtree of items referred to as "AR gun toy" and "Toy gel blaster pistol" were of probative value to the Crown case, that at the relevant time, it was the accused who was making enquiries as to the purchase of such items. Its probative value was therefore high, but not to the same extent as the other evidence referred to above.
I am not persuaded by the submission made on behalf of the accused that the probative value of the evidence relating to the events on 27 April 2018, concerning the purchase of the pistol was diminished as it was corroborated by evidence otherwise available, namely, the text messages sent between the phone of the accused and that of Mr Xie on that day. The Crown case is a circumstantial case in which it alleges a joint criminal enterprise took place between the armed robber and the accused, and the Crown is entitled to rely on all available relevant evidence that is admissible, rather than being confined in the way advocated by the accused.
I therefore find that the evidence is of importance to the Crown case in the proceedings. It is common ground that the nature of the relevant offence is a serious criminal offence pursuant to s 97(2) of the Crimes Act 1900 that carries a heavy maximum penalty.
I am not persuaded that the impropriety as established is of significant gravity. Police were entitled to seize the accused's mobile phone and an explanation was given to him of its purpose. Where the police were investigating a very serious offence, namely armed robbery, and the phone had a clear connection to that offence, they were entitled to seize it for the purpose of forensic examination. The police officer explained that that would include a Cellebrite examination of its contents. An offer was made to the accused to provide telephone numbers he may need, but that offer was declined.
It was only when the accused asked to delete photographs from the phone that suspicion was aroused in Detective Fretten. The subsequent failure to provide the correct PIN number on two occasions added to those suspicions. In all of the circumstances, it would almost have been a dereliction of duty for the police officer not to have the phone examined. In any event, none of the evidence resulted from the examination by the Cellebrite device, rather, it was obtained by police officers searching the accessible features of the phone, for example, the settings. For those reasons, whilst the impropriety did constitute an interference with the private property of a citizen who was not at the time a suspect, it was not a matter of great gravity as advocated by counsel for the accused.
The accused has conceded that the impropriety was not deliberate or reckless, and counsel conceded that ss(3)(f) and (g) were not relevant to the determination here. With respect to s 138(3)(h), given the suspicion of the police officer did not rise to a reasonable belief that the accused had committed a crime and was not sufficient to provide him with a caution, I am satisfied that the police may have had some difficulty in obtaining a warrant for the purpose of an examination of the phone's contents. Thus, I am satisfied that there may have been some difficulty in obtaining the evidence without the impropriety as established, in accordance with s 138(3)(h).
I accept the Crown's submission that in assessing the probative value of the evidence, I have excluded any consideration of its credibility and reliability in accordance with R v Riley, following the High Court decisions in IMM v R and in Bauer v R. As outlined above, the matters set out in s 138(3) are not exhaustive and as noted by Bathurst CJ in Riley, at [130], another relevant matter is unfairness to the respondent.
Having considered the whole of the evidence on the voir dire and the matters set out above, and in particular the high probative value of the evidence, its importance to the Crown case, which is a circumstantial case against the accused, and the serious nature of the subject matter of the proceedings, I find that given the low gravity of the impropriety, the fact that it was not deliberate or reckless and the fact that the police may have had difficulty in obtaining the evidence without impropriety, I find that the desirability of admitting the evidence outweighs the undesirability of admitting it in respect of each of Ex N, Ex D on the voir dire and Ex E on the voir dire.

[14]

Further evidence in the Crown case - Detective Senior Constable Casey Braz

Detective Senior Constable Braz gave evidence that he arrived at the Belmore Hotel at 5.25am. He gave evidence consistent with his statement which had been tendered on the voir dire and summarised in [118] to [120] above. He read the following from his police notebook: "And then I've got "security guard details, Mr Khaled Itani on the first of 87," his address and then his phone number. I've got the version obtained from Mr Itani at that time. "Checking the doors, rear door broken, saw the storeroom door was open. Usually closed. I went down and I didn't see anyone. I turned around." Again, I can't read my writing there. "Someone pulled me with a gun to my head. He said, 'phone, phone.' I gave him the phone. Satya was here upstairs. He said, 'get on the floor.' The manager was standing behind the bar. He put his hands up. He went to the manager, hit him and put him on the floor. He said, 'give me money from poker machines.' The manager opened them. He put us in toilet. Said, 'if anyone gets out I shoot you.' Waited two minutes. I went outside. He not here and I call police. He had black, long hair, face was covered and all black with a ponytail clumped together out back. Taller than me. Large, muscley build. Had a deep voice, wearing all black."
Detective Senior Constable Braz gave evidence that he spoke to the other employee, Satya Kong and reviewed the CCTV footage. He also spoke to the licensee Mr Andrews.
Detective Senior Constable Braz gave evidence that he went with Detective Senior Constable Fretten to the accused's address at Croydon Park that afternoon in order to obtain the accused's mobile telephone PIN number. The following day he took the accused's phone from Campsie Police Station to Ashfield Police Station and gave it to Senior Constable Duarte.
Detective Senior Constable Braz gave evidence that on 4 May 2018 the accused presented to Campsie Police Station to collect his phone. He gave the phone back to the accused.
In cross-examination, Detective Senior Constable Braz agreed that in taking the statement from the security guard, which he read from his notebook, he was not taking a formal statement, nor did he give the notebook to the security guard to read before leaving the Belmore Hotel. He gave evidence that he took the notes as he was speaking to the accused. There was no re‑examination.

[16]

Officer in charge recalled

The officer in charge Detective Senior Constable Lindsay was recalled and through him the Crown tendered nine photographs, being stills taken from the CCTV footage which became Ex AA. A twelve page document being the schedule related to the CCTV footage in Ex R, became Ex AB. A further schedule relating to the CCTV footage in Ex Q, became Ex AC.
A map prepared for showing the distance between Belmore and the suburb of Beaumont Hills was tendered without objection and became Ex AD. Detective Senior Constable Lindsay was shown a passport photograph of Mr Saadallah, which was marked for identification as MFI 7.
Detective Senior Constable Lindsay gave evidence of a photographic identification procedure undertaken by Mr Da-Ren Xie, in which a photograph of the accused was included and numbered 10. Detective Lindsay gave evidence that Da-Ren Xie was unable to make any selection in relation to that procedure so as to identify either of the males who had purchased the Desert Eagle pistol from him.
Fifteen photographs of the suspected armed robber, being stills taken from Ex R, became Ex AE, and 15 photographs of Mr Saadallah, taken from CCTV footage on 1 May 2018, entering and exiting the unisex disabled toilet in the Belmore Hotel on a number of occasions, became Ex AF.
Detective Senior Constable Lindsay gave evidence of a walk-through conducted at the Belmore Hotel on 12 July 2018 with the accused, who agreed to participate in the walk-through. A video of the walk-through became Ex AG.
Detective Senior Constable Lindsay identified the Desert Eagle pistol shown in Ex Z and identified it as the item that was given to him by Mr Da-Ren Xie as an example of the item he sold on 27 April 2018 to the two men.
Detective Senior Constable Lindsay gave further evidence about the review of CCTV footage at the Belmore Hotel by Detective Bartel, and the synopsis he created for relevant periods in the CCTV footage on 23, 24, 30 April and 1 May 2018. A bundle of synopsis documents in four parts was marked for identification as MFI 8.
Detective Senior Constable Lindsay gave evidence that police obtained a warrant for a preservation order for stored communications in relation to data stored on the accused's mobile phone. That data was analysed by an intelligence analyst, Joanne Sofrenic, for the period 20 April 2018 to 9 May 2018. The statement of Joanne Sofrenic became Ex AH and a 39 page Excel spreadsheet prepared by her became Ex AJ.
Detective Senior Constable Lindsay gave evidence that on 22 January 2019 he was granted a search warrant in relation to records held by Western Union Financial Services Australia Pty Limited. That related to money transfers conducted by Zahara Michails and Jaad Abi-Rached, the biological son of Ghada Toubia. A two-page transactions document relating to those money transfers became Ex AK.
Exhibit AK included two transactions by Jaad Abi-Rached, the first in time on 26 October 2016, which was not relevant to the proceedings. The second transaction occurred on 7 May 2018. It involved $5,000 being sent to a person named Ahmed Alghazawi at an address in Gateneau, Canada. Police were unable to establish who Ahmed Alghazawi was and Jaad Abi-Rached refused to provide police with a statement.
Exhibit AK also included details of a transfer by Zahara Michail on 9 May 2018 of $4,774.08 to Hala Thiab, the wife of Omar Saadallah, at an address in Gateneau, Canada.
Exhibit AL was tendered without objection as a map of the city of Gateneau, identifying the addressee locations.
Detective Senior Constable Lindsay gave evidence of bank records obtained in relation to Ms Michail's Bank West transaction account number ending in 3982. A bundle of those documents was marked for identification as MFI 9.

[17]

Evidence of Da-Ren Xie

Da-Ren Xie gave evidence that he set up an e-bay account named "Occasion" in 2015. It was primarily involved in selling plastic toy guns.
Mr Xie, after objecting to answer questions on the grounds of self‑incrimination, was granted a certificate pursuant to s 128 of the Evidence Act 1995.
The business sold plastic toy guns and computer keyboards imported from China. The guns ranged from handguns to rifles which were battery operated.
Mr Xie gave evidence that in April 2008 he sold a Desert Eagle pistol after communicating with the purchaser using mobile number ending in 020. A series of text messages between Mr Xie and that handset became Ex AM.
Exhibit D on the voir dire became Ex AN, and Ex E on the voir dire became Ex AO.
Mr Xie gave evidence that an appointment was to meet the purchaser at the IGA car park in Beaumont Hills. He gave the following evidence: "A. INTERPRETER: And then he was about half an hour late for the appointment. He told me that there was an accident on the way here. And he said he lives from far away. At the time I brought one pistol and about two to three rifles. After he saw all these he picked the pistol. And also he came with a friend of him, so there were two people came. The transaction was made quickly, it was only two to three minutes before he left. That was it. Q. When he picked the pistol, what was the pistol he picked? A. INTERPRETER: It was a Desert Eagle.
Mr Xie identified MFI 5 as an example of the Desert Eagle pistol that he sold, which he later provided to police. Three photographs of the Desert Eagle signed by Mr Xie became Ex AP.
Mr Xie gave the following evidence of the transaction: "Q. Can you remember how the other two people came to the meeting at the IGA in Beaumont Hills? A. INTERPRETER: They walked over, they didn't park at the IGA carpark, they parked across the road. Q. Did you see their car? A. INTERPRETER: Yes, I did. Q. Can you describe for the Court the car? A. INTERPRETER: I cannot remember clearly it was SUV, it was a small SUV, it's not a big SUV. The colour is silver or grey but I cannot remember clearly. Q. Which of the two men told you that they had had an accident on the way? Was it the man who bought the gun or the other man? A. INTERPRETER: It was the man who bought the gun. Q. Did the man pay for the gun? A. INTERPRETER: Yes, he paid $130. Q. Did he pay in cash? A. INTERPRETER: Yes. Q. How many Desert Eagle pistols did you bring to that meeting at the IGA carpark in Beaumont Hills? A. INTERPRETER: Only one. …"
He gave the following further evidence: "Q. What did the man say to you about the accident on the way there? A. INTERPRETER: He said "I'm very sorry we're late, we came from far away, there was an accident on the way here". Q. Did he tell you who had the accident? A. INTERPRETER: He just said they had a car accident. I didn't ask for details. Q. The man who bought the Desert Eagle pistol and paid $130 in cash - how old was he? A. INTERPRETER: He was young man, around 20 years old, but I'm not exactly sure. He looks young. Q. What nationality was he, can you say? A. INTERPRETER: He should be from Middle East. Q. How tall was he? A. INTERPRETER: About the same height as I am, around 180. Q. What was his build like? A. INTERPRETER: He's thin just like this gentleman. Q. You're indicating to the gentleman sitting in the suit and tie in front of his Honour. Your answer was he's thin, just like this gentleman? A. INTERPRETER: Yes. Q. What about his hair? What colour hair did this man who you bought the gun from? A. INTERPRETER: I'm not exactly sure but should be black. Q. What about the length of his hair? Can you say anything about that? A. INTERPRETER: Not long and not short, about this long. Q. You are indicating with your right hand and your thumb and your forefinger - what would you call that in centimetres? A. INTERPRETER: Around ten centimetres. … Q. What about the other man that you said came with him? Can you describe him? A. INTERPRETER: I cannot remember clearly, he's strong, he's a big build, his height is about same, about 180. Q. Can you remember anything else about that man? A. INTERPRETER: You mean the man who bought the gun or the man who came with him? Q. The man who came with him. A. INTERPRETER: He looks stronger or bigger than the man who bought the gun. His height is about the same and his skin colour is a little bit darker. Q. Just going back to the first man, the man who bought the gun, your estimate was that his hair was about ten centimetres? A. INTERPRETER: About the same as my hair now, not very long. Q. When you gave that estimate were you talking about the hair on his head, is that what you meant? A. INTERPRETER: Yes, the hair on his head. Q. Did you notice anything else about that man's face? A. INTERPRETER: The man looked very clean and fair. Typical look of a Middle Eastern young man. But with very fair skin, that type of Middle Eastern. Q. In relation to the other man, what nationality was he, I'm sorry? A. INTERPRETER: He should be - I think he's Middle Eastern as well but with darker skin."
Mr Xie gave evidence of a photograph identification exercise in which he was shown by the officer in charge two separate sets of 20 photographs. He selected photograph number 8 as being a photograph of a man similar to the man he sold the gun to. That photograph became Ex AQ.
Mr Xie was unable to select any photo of the other man in the second set of 20 photographs.
In cross-examination, Mr Xie acknowledged [2] of his statement dated 29 June 2018 which recorded that he was making a statement after a promise had been held out to him by the officer in charge that no information given by him would be used in any criminal proceedings against him in New South Wales, except with respect to the falsity of his statement or for the purpose of establishing the falsity of evidence given by him as a witness.
Mr Xie was asked whether the gentleman that bought the gun off him had a discussion with him while he was buying the gun and he answered: "I didn't ask, and he didn't say either."
Mr Xie was shown Ex AM which included a reference to a price of $210 for each gun. He confirmed that the Desert Eagle was sold for $130 and the rifles were sold for $210.
Mr Xie was asked why when he made his statement on 29 June 2018 he did not tell police that the man who wanted to buy the gun was late because he had a car accident. He said: "I may have forgotten or I can't remember."
Mr Xie identified the Desert Eagle gel gun as having orange parts. It was not the only type of handgun that he sold online. He gave evidence that all the guns were made in China, and according to the law in China, the guns had to have something obvious, showing they're not real guns. This meant that some are red and some are silver or grey. In general there has to be a distinguished difference from black guns. He was shown MFI 1 to identify the several parts of the gun that were coloured bright orange.
There was no re-examination.

[18]

Evidence of Alannah Sheekey

Ms Alannah Sheekey was up until 25 September 2018, employed as a manager at the Banksia Hotel in Banksia. She gave evidence of how winnings were paid from poker machines by way of a cash redemption terminal. At the Banksia Hotel, a patron could collect up to $4,999.95 in winnings from a ticket printed from the gaming machine. Any winnings above that amount had to be paid by cheque.
Security guards at the Banksia Hotel were employed by Sun Security. The Banksia Hotel was owned by the Monarch Group which also owned the Belmore Hotel and Ms Sheekey identified the accused as one of the people who worked at the Banksia Hotel as a security guard. He worked on Friday and Saturday nights between 10pm and 6am the next morning. He usually worked with Ibrahim Droubi. Ms Sheekey gave evidence that she had spoken to police about money won by the accused at Banksia Hotel on 4 May 2018. She was working as the night shift manager. She gave evidence that the accused was playing a machine at the hotel with a friend, who was visiting from overseas. She identified that man as "the accused's friend from Canada" on two stills taken from CCTV footage of the Belmore Hotel. The two stills became Ex AR.
Ms Sheekey gave evidence that before closing time the accused was playing a poker machine with Sean Brosnan and they won over $5,000. She gave evidence that because the accused worked for the pub he could not get the cheque in his name, so Sean put it under his name. She was asked: "Q. You're suggesting that Khaled won the money? A. No, it was definitely equal but he couldn't really put his name on it because it would look bad that he was playing the pokies at a pub that he worked for. Q. But the up to 5,000 could have been redeemed from the machine itself? A. You can't split it. Like, I think they won over 5,000 so you can't like, take it, it has to be in cheque and then you get the other half in cash if that makes sense? Q. Okay. A. Like if you win over a certain amount you have to get, like, say it's 6,000, you have to, it won't go in the ecash machine, like, it won't spit it out, you have to get it in cheque."
Ms Sheekey identified a copy of a cheque made out to John Phillip Brosnan for $1,201.00. She also identified a ticket copied from the Banksia Hotel on 5 May 2018 for a cash amount of $6,201.20, and a driver's licence provided in the name of John Phillip Brosnan.
Ms Sheekey clarified that the machine paid $5,000 in cash and the balance was taken by way of a cheque for $1,201.20. The copy of those documents became Ex AS.
In cross-examination, Ms Sheekey gave evidence that she wrote the cheque in Ex AS. The accused gave her a $50 tip and the same tip to Ibrahim Droubi.
Ms Sheekey gave evidence that she had met the Canadian friend of the accused at the hotel on two occasions, and he was playing the poker machines.
In cross-examination, Ms Sheekey was asked about the accused and his friend betting $5 and $10 hits on poker machines they were playing for about four hours. She agreed that she was not watching them for the entire four hour period, nor did she know exactly what bet they placed each time they played the machine.
Ms Sheekey gave evidence that she assumed that the accused and Sean Brosnan shared the winnings 50/50. She was not always aware, as a manager, of when a patron wins money on a poker machine.
Finally, Ms Sheekey gave evidence that the accused had been employed at the Banksia Hotel for approximately one year, however, he was stood down after the robbery on 2 May 2018. There was no re-examination.

[19]

Evidence of Ibrahim Droubi

Mr Droubi gave evidence that he met the accused in 2017 when they were both working as security guards at the Banksia Hotel. They worked together on Friday and Saturday nights and developed a friendship. They shared a common interest in betting which included soccer or football multis. Mr Droubi did not play poker machines but gave evidence that there were times when the accused was not working that he would come to the Banksia Hotel and play the poker machines.
Mr Droubi gave evidence that he received a phone call from the accused in which the accused said, "We've been robbed at the Belmore".
Prior to the robbery, in 2008 the accused brought a friend to the Banksia Hotel and introduced him, saying, "That's my mate, he lives in Canada". Mr Droubi met the friend again a week after that at the Banksia Hotel. He gave the following evidence: "Q. What were the circumstances in which you came to see the friend again? A. Khaled was working and he dropped him off again and he was telling me that he had a car accident. Q. Who was telling you that he had a car accident? A. Khaled told me his friend had a car accident and if I knew a panelbeater. I referred him to Golbert Smash Repairs on Princes Highway and that was it. Q. Did anyone tell you what - did Khaled tell you what his friend had had an accident in? A. It was a hire car. I can't remember the model of the car to be honest with ya but it was a hire car. Q. Did you ever see the hire car? A. I seen the hit in the - cause he was, he was in the car the time that when he showed me the accident. Q. They showed you the damage to the car, is that what-- A. Yeah that's why I said I knew Golbert Smash Repairs. Q. And where was the damage? A. I remember it was at the front. I think it was at the front of the car."
Mr Droubi identified Khaled's friend from Canada in a still photograph taken from CCTV footage at the Belmore Hotel. The photograph became Ex AT.
Mr Droubi identified in Ex AN WhatsApp messages sent between him and the accused. They included photographs of the damage to the hire car. They were sent on 27 April 2018. Mr Droubi denied that the accused's friend from Canada was in any way related to him, or that he was his cousin. He gave the following evidence: "Q. Did you ever tell anyone that the Canadian friend was your cousin? A. No. I only found out that he was my cousin is when the Detective came to my house to investigate me, to speak to me. They said to me, when they showed me the image, they said, "Is that your cousin?" I said, "Who said that?" And they said, "Khaled." So I rang one of the girls at Belmore, Satya, the bar girl there, I said, "Has Khaled been saying this guy's my cousin? Because if he has he's not my cousin."
Mr Droubi gave evidence that the accused's friend came to the Banksia Hotel a few times with the accused on the accused's day off. They would play the poker machines.
In cross-examination, Mr Droubi agreed that he and the accused became close friends.
Mr Droubi was shown Ex AN and provided the English translation to a number of Arabic expressions contained on it. They related to bets made on football matches. He gave further evidence that the accused had shown him the damage to the vehicle on 27 April 2018 when the accused and his friend arrived at the Banksia Hotel.
There was no re-examination.

[20]

Evidence of Zahara Michails

Ms Michails gave evidence that she became friendly with the accused on social media in 2016. They developed a romantic relationship about six months later and he would visit her in Adelaide. She moved to Sydney in February or March 2018 to be with the accused, and they moved into a two bedroom apartment in Campsie. The rent of $575 a week was shared between her and the accused.
Ms Michails gave evidence that in 2018 the accused told her he had a friend coming down on holidays and asked could he stay in the apartment in the spare room. She agreed, and the friend whose name was Omar came to stay, but she could not remember when he arrived. She was asked: "Q. How long did he stay there? A. I was working fulltime so I can't exactly remember because I was never, I was very rarely home during the day so it, the full amount of time I can't remember whether he was there the full time but probably anywhere between two to three weeks. Q. He stayed at your unit? A. But I'm not definite on that because I wasn't home so I hardly saw him. Q. And he stayed in the spare room to the best of your knowledge? A. He stayed in the spare room. Q. And he was there? A. Yes. Q. Did he have a nickname Omar? A. I think that they called, I knew him as Omar but I think that there was maybe, maybe Eddie. Q. Do you know where he came from? A. I knew very little about him at all and I didn't really even ask questions. Q. After he finished staying at your unit do you know where he went? A. I have no idea, no. Q. At the time that Omar was staying at your Campsie unit was Khaled working to your knowledge? A. To my knowledge he was working at night, not during the day. Q. Where was he working? A. He was a security guard. Q. Where? A. At the Belmore Hotel."
Ms Michails was asked about speaking to the police following the robbery. She was asked: "Q. After the robbery, did Khaled speak to you about speaking to the police? A. I'm not quite sure exactly what the question is but nothing specific, no specifics, I'm not quite sure. Like, did he try and stop me from speaking to the police? I'm not sure what the question is. … Q. Okay. What, if anything, did Khaled tell you about speaking to the police, if they spoke to you? A. He didn't really say specifically say anything about me speaking to the police, the police came to me and I was completely honest about whatever they asked me, so there wasn't anything specific that Khaled - other than the discrepancy in the time that Omar stayed. I can't remember exactly that time. Q. Tell us about that discrepancy. A. So I wasn't there, I was working full-time and I can't remember exactly how long he was there for or not, I'm not quite sure but I was working full-time so I don't actually know and I never ask questions either. Q. In relation to that discrepancy, what conversation, if any, did you have with Khaled about it? A. Nothing specifically, he just - I guess he asked me if I spoke to the police and if they came to me and I said yes they did. Q. Is that your best memory about speaking with Khaled or having a conversation with Khaled about speaking to the police? A. Yes, it is, about Omar yes about Omar staying, yes it is, yeah. Q. Have you - can you remember anything else about conversation with Khaled about speaking to police that concerned Omar staying with you? A. It was such a difficult time for me, there was so much happening. Q. Can you remember? A. I can remember him being probably upset that the police were coming to me and that I was I guess communicating with them but I can't remember specific conversations as such. Q. Have you exhausted your memory on that issue? Any specific conversations as such with Khaled? A. I can't remember a specific conversation but like I said yeah he there were times where I'm sure he didn't want he was concerned that the police were coming to me. That I can remember but specific conversations I can't remember. Q. Did he ever speak to you about any of his concerns that the police were coming to you that you can remember? A. He was just really concerned that he - he's innocent and he was just really concerned that they were, they were I guess I don't know, following him or - he was just concerned, he was just distressed and concerned so he had conversations with me about that but that's it and in you know for me I was concerned for him so."
Ms Michails gave evidence that she made a statement to police officers on 14 January 2019, and another statement on 26 November 2018.
The Crown was given leave pursuant to s 32 of the Evidence Act for Ms Michails to refresh her memory from her statement. She was asked to read [13] of that statement, and then asked: "Q. What did Khaled say - having refreshed your memory from paragraph 13 what did Khaled say to you that - what did Khaled say to you? A. Again, I can't exactly remember the right - the actual words but, yes, he did say that - to say to the police that he - that Omar didn't stay for that amount of time that he stayed and that he only stayed for this amount of time. Q. Khaled told you to tell the police? A. Yes. Q. That Omar only stayed with you for six days. Is that what's in paragraph 13? A. Yes, it is."
Ms Michails was then asked: "Q. You said in your evidence that as you sit in the witness box today that Omar stayed with you for two to three weeks at the Campsie unit? A. To my knowledge, like I said I'm not sure exactly how long he was there for, how many nights he was staying there for, but I'm assuming around that time. Q. Well don't assume. That's what you said in your evidence earlier? Is that your best recollection? A. Yes, it is. Q. Two to three weeks? A. Yes, it is. Q. As you sit there now? A. (no verbal reply) Q. At the same time that you made this statement or at any time that you spoke to police what, if anything, did you tell them about the state of your relationship with Khaled? A. What did I tell the police about our relationship? Well we were in a relationship, they knew that. Q. You were in a relationship during the entirety of the time, every time the police told, spoke to you were you in a relationship with Khaled Itani? A. Yes, we were. Q. Did you ever tell the police otherwise? A. Towards the end of, I guess towards the end of our, I don't even know how to say it, relationship, I did find out that he was married, I had no idea. Q. No, listen to the question. Did you ever tell the police that you and Khaled had broken up? A. We were, we were, since he's been in gaol or I don't understand your question again. Q. At any time that you spoke to any police officer, any detective involved in this investigation-- A. We did break up a couple of times, yes." … Q. Did you ever tell one of the detectives, one or more of the detectives that you and Khaled had broken up before Khaled went to gaol? A. We did break up a few times and get back together so whatever I've said was what was happening at the time. Like I said, our relationship was quite turbulent, it was on and off so, yes, we were together at times and we weren't. We broke up, we got together. We broke up, we got together so I'm sure there were maybe a time when I spoke to the police and said that we weren't together at the time, I can't actually remember. Q. All right. A. But we were on and off in a relationship, yes."
Having read [14] of her statement, Ms Michails gave the following evidence: "Q. I'll ask you the question again. Did you tell the Detectives or any detective that you and Khaled had broken up between the time after the robbery and before Khaled went to gaol? A. And I'm going to answer that honestly again, we have broken up many times on and off so there was, would have been a possibility that I would have said that we had broken up. There would have been a possibility and then we got back together. I mean do you want me to extend on what I'm saying? This has been very hard for me because I came to Sydney to be Khaled and through the events of finding out that he was married it was a very hard time for me so yes, we were breaking up on and off."
The statement of Ms Michails made on 26 November 2019 was marked for identification as MFI 10.
Ms Michails gave evidence that she spoke to police on 31 August 2018. She was asked: "Q. What did you tell them? A. We were constantly breaking - we were breaking up, but at the time that I gave that statement we were together, yes. Q. But what did you tell the police, Detectives Jouni and-- A. Khaled told me to say that we had broken up. Q. I'm sorry? A. Khaled told me to tell the police that we had broken up. Q. Khaled told you to tell the police that you had broken up? A. Correct. I'm not sure why."
Ms Michails was shown Ex AK and identified her name on the money transfer dated 9 May 2018. She gave the following evidence: "Q. You made this transfer, is that right? A. I made the transfer, yes. I was told by Khaled to make the transfer, I was just given something written on paper to transfer. That's all I - I have no idea who it went to, I thought it was just a friend. Q. So were all the details of that transfer given to you by Khaled? A. Yes, they were. Q. And the money that you transferred, who gave you that? A. Khaled gave it to me. Q. When did he give it to you? A. I can't exactly remember, the night before or the morning of. I really can't remember, I can't, because there were times where he'd leave really early so hardly saw him in the morning so maybe the evening but I really can't remember exactly when he gave it to me but it was given to me by him. Q. Did he give you cash? A. Yes, he did. Q. And he gave you all the money that you transferred? The whole lot? A. My apologies-- Q. The money that you transferred all of it was given to you by Khaled-- A. Yes, that's correct. Q. --in cash? A. That's correct. Q. Did he tell you where to make the transfer? A. He just said a Western Union. I've never ever been to a Western Union before but there was one in my street, in the street that I was working at at the time in George Street next to my work. So that's the one that I went to. He just said to go to a Western Union."
Ms Michails identified her Bankwest bank record which had been marked for identification as MFI 9 but became Ex AU. She was questioned about numerous entries in those bank records, including a credit of $5,000, being an ATM deposit made on 28 May 2018. She gave the following evidence: "Q. Where did you get the money from? A. That was my money that I had. It was my only little bit of savings that I had and I put it - Khaled asked me to put it into my account because he wanted to pay bills. Q. Where did you get the $5,000 cash to deposit into your account on this day? A. Over time it was money that I had accumulated. It was my own money. I was still quite scared and quite alone coming to Sydney. It was money that I had put away over time-- Q. Where was it put - where? In a bank account? Under the bed? Where? A. No, it was put in a suitcase. Q. Where was the suitcase? A. At my home. Q. Is that the truth? A. That's the truth. Q. Why did you give it to Khaled? A. Because he needed it, he said he was in debt. He said he had a gambling problem and he had debts with his credit cards and he needed money and it was the only money I had. And that was for myself, I was putting - that was for me if I ever needed it. Q. Why didn't you just hand it to him? A. He wanted me to put - I did everything he said. He wanted me to put it into my account. I'm not sure why-- … that's just what he wanted me to do. He asked me for that money and I put it into my account for him. Q. He didn't ask for you to give it to him in cash? A. No, he didn't. I'm not sure why. Like I said I don't know. There's lots of things I don't - I don't understand or know why."
Ms Michails was then asked: "Q. Was that the only money you had in a suitcase of savings? A. Yes it was. Q. Sorry just tell me again what Khaled instructed you to do with the money? A. He said he needed money and the money that I had my own savings that was for myself in case I ever needed it. He said he needed it to pay debt that he had, credit card debt. He had a gambling problem, I knew that and he was in debt. How much I don't know. That's information that I didn't have and I never ask questions. Q. Why not? A. You just trust your partner."
Ms Michails was asked about three payments of $1500 made from her account to the accused's credit card account. She agreed she made those payments on the accused's instructions.
Ms Michails was asked whether at the time the accused was arrested, was she still in a relationship with him. She answered: "A. Yes. Yes, we were - we were sort of on and off. Like I've explained earlier, we were on, we were off. At this stage we were kind of not really together but we were."
Ms Michails gave evidence that she was now not in a relationship with the accused.
In cross-examination Ms Michails gave evidence that when she was living together with the accused in Campsie they would share expenses. She agreed that he would, from time to time, borrow money from her and that he would return the money he had borrowed from her. She also agreed that he would give her money and sometimes she would give him cash.
Ms Michails was asked about the $5,000 cash transfer she made on 27 May 2018 into her account. She agreed that some was not cash that the accused had given her.
Ms Michails gave evidence that she had no memory of $5,000 a couple of days before she did the Western Union transfer on 9 May 2018.
Ms Michails gave evidence that she was at times constantly contacted by investigating police and that she felt overwhelmed and stressed. She gave the following evidence: "Q. Were you constantly telling Khaled how the police were making you feel? A. I was constantly telling Khaled how I felt about this whole situation. Q. And during those conversations would Khaled tell you what to say to the police? A. There were times where he was trying to calm me down. Q. Let's talk about those times. When he was trying to calm you down would he tell you what to tell the police? A. Sorry? Q. When he was trying to calm you down, during those conversations, would he tell you what to tell the police? A. There was a few times. Just a few times."
Ms Michails gave evidence that following the robbery, the accused was absolutely distressed about the robbery and "Really concerned, very upset. He just couldn't work out what was happening. More so he was just really stressed."
Ms Michails gave evidence that she had never seen the accused bring a gun home, or a fake gun home, and had never seen him with a big bag of cash following the robbery. She had never seen the accused and Omar counting bags of cash and on every occasion she and the accused spoke about the robbery, he told her he was innocent.
With respect to the $5,000 she transferred into her account on 27 May 2018, Ms Michails gave evidence that the accused had requested that she lend him that money and it was paid into her account. She gave evidence that she: "A. Just did what he asked, I trusted him. And yes, he did have a gambling problem. Q. Did he tell you to transfer it in portions so that he doesn't spend it on gambling? A. Yes."
There was no re-examination.

[24]

Evidence of Alice Tran

Ms Tran is a senior forensic accountant employed by the State Crime Command of the New South Wales Police Force, and a qualified chartered accountant. She prepared two statements dated 20 May 2019 and 28 January 2021, to which were appended numerous annexures comprising flow charts or summaries of financial analysis. All of that material comprised a folder which was marked for identification as MFI 13.
Ms Tran was qualified with a large body of financial documents by the officer in charge, which comprised eight sets of documents that were extracts of various CBA accounts of the accused, including account numbers ending in 0341, 4105, 3367, 4249 and 2682.
Ms Tran was also qualified with extracts from accounts in the name of Ghada Toubia, numbers ending in 6600, 5600 and 7365.
Further materials provided were a Gem Visa credit card in the name of the accused number ending in 7187, together with Bank West account extracts in the name of MM and ZT Michails, account ending in 3982, together with documents from the Australian Taxation Office ("ATO"), betting agencies TabCorp, Sportsbet and Bet365, relating to the accused.
Ms Tran was also provided with documents from Audi in relation to finance provided to Ghada Toubia and Western Union documents in relation to transfers from Jaad Abi-Rashed and Zahara Michails.
Ms Tran gave evidence that the ATO document showed a declared income for the accused of $6,259, with tax withheld of $1,350, resulting in a net income of $4,909.00. In the same financial year ending 30 June 2018, the accused's CBA transaction account ending in 0341, showed cash deposits totalling $53,172.50, comprising salary or wage transactions of $4,882.50 and cash deposits totalling $48,290.00. The difference between the deposits in the CBA account and the ATO records amounted to $48,263.50.
Ms Tran identified a deposit of $5,000 into Ms Michail's account ending in 8982 on 27 May 2018, following which, there were three transfers of $1,500 to the accused's CBA account ending in 0341. Annexure B to Ms Trans's first statement was flow chart 2, which showed the movement of funds from the Michail's account to the accused's transaction accounts and on to his credit card accounts. Annexure B was tendered as Ex AX.
Ms Tran gave evidence concerning the two separate international money transfers from Western Union to Canada in May 2018. She identified $5,000 transferred on 7 May 2018 by Jaad Abi-Rashed and a second transfer on 9 May 2018 in the sum of $4,774.08 by Zahara Michails. Ms Tran gave evidence in respect of the second transaction that a review of the Michail's Bank West account ending in 3982, did not identify any outgoing cash, outgoing transfers or any cash withdrawals of a similar amount around that date.
Ms Tran gave evidence of her analysis of Ms Toubia's three bank statements and identified a cash deposit on 12 June 2018 of $3,300. Annexure C to her statement was flow chart 3, which showed payments from her account following that deposit that corresponded with payments made to Audi in respect of the motor vehicle purchased on 16 June 2018. Annexure C became Ex AY. A total amount of $6,000 was paid by way of deposits for the Audi motor vehicle.
Ms Tran gave evidence of incoming and outgoing betting transactions identified in the bank statements of the accused, and set out in Annexure E to her statement. For the period July 2017 to October 2018, those transactions were summarised in Annexure E1 which became Ex AZ.
In her statement dated 28 January 2021, Ms Tran provided an Excel spreadsheet relating to the period following the robbery on 2 May 2018. Annexure A was admitted as Ex BA. The total incoming funds for the period 2 May 2018 to 6 October 2018 was $53,200.75, and the outgoing funds within the same period were $51,228.55. The combined credit card and loans debt for the same period was $33,512.82. During the same period, $32,382.09 had been paid off those accounts, whilst $35,950.50 was outgoing during that period in relation to the accused's credit cards and personal loan. As at 6 October 2018, the combined debt in relation to the credit card loan accounts of the accused is $37,081.23.
Annexure B to Ms Tran's second statement was a flow chart in respect of the accused's CBA credit card ending in 4105, which was divided between the pre-event period from 1 January 2018 to 1 May 2018, and post-event period from 2 May 2018 to 5 October 2018. In the post-event period, the total incoming funds into that account was $16,757.09, whilst outgoing funds were $18,566.76. Annexure B became Ex BB.
Ms Tran prepared a flow chart for pre- and post-event periods for the accused's CBA credit card ending in 4249 as Annexure B1. The post-event period was between 2 May 2018 and 14 September 2018, during which incoming funds amounted to $14,045, whilst outgoing funds were $15,465.83. Annexure B1 became Ex BC.
Ms Tran gave evidence that in the post-event period, namely after the robbery, there were 11 cash deposits into the accused's transaction account 0341 totalling $16,625, representing 36% of incoming funds into that account. The largest deposit occurred on 27 May 2018 in the sum of $5,000. Between 8 May and 15 May 2018, the total amount of $16,000 was received in a combination of the accused's CBA credit accounts and his GEM credit card account.
Ms Tran identified transfers in the accused's account 0341 from Ghada Toubia, Brendan Bell and Dushan Milenovic. At the end of the post-event period, she gave evidence that the difference between the credit card and personal loan accounts, and the accused's transaction account, was a negative balance of $35,050.85.
Ms Tran further identified a transfer from Jed Ward to the accused's CBA 0341 account on 25 April 2018 of $200.
In cross-examination, Ms Tran agreed that when she was asked to provide her assistance to the investigation, that Khaled Itani was accused of the robbery at the Belmore Hotel. She was asked to look at his financial situation, including any change in banking patterns following the event. That involved a comparison of the accused's banking records before and after the robbery.
Annexure D to her first statement listed cash deposits both before and after the robbery. Ms Tran gave evidence that she agreed that before the robbery the accused's banking records showed that he would frequently deposit sums of cash into his CBA bank account. She identified a deposit on 26 February 2018 of $7,650 and another deposit on 26 March 2018 of $4,020 into his account CBA 0341. There were further deposits which exceeded $1,000 which were cash deposits made prior to the robbery.
Ms Tran agreed that those cash deposits could not be explained by the accused's declared income to the ATO, in that they exceeded his declared income. She agreed that unexplained cash deposits were commonplace in the accused's pre-robbery transaction history. She also gave evidence that she had no evidence of where the money for the deposits came from. Annexure D to her first statement was marked for identification as MFI 14.
Ms Tran was also cross-examined about Annexure D1 to her first statement, a document headed "Cash Analysis Summary". That document contained tables which summarised cash deposits by locations and cash withdrawals by location. With respect to cash withdrawals she agreed that there were 238 withdrawals from an ATM in Banksia. Also on the annexure was a line graph which charted cash deposits and withdrawals which showed two noticeable peaks in deposits, one in February 2018 and one in May 2018. Ms Tran gave evidence that she had no explanation for the monies that were deposited in those months, namely $10,010 deposited in February 2018, and $13,375 deposited in May 2018 into the accused's CBA 0341 account.
Ms Tran gave evidence that she had no recollection and could not remember being advised about poker machine winnings by the accused in May 2018. She conceded there was a possibility that May 2018 peak were made up of poker machine winnings. Annexure D1 was marked for identification as MFI 15.
Ms Tran was cross-examined about her second report dated 28 January 2021 in which she referred to "Known funds" and "Other funds". She agreed that for both pre- and post-event periods the majority of funds going into the accused's CBA 0341 account were classified as "other funds". The pre-event period was four months and the post-event period was five months. She agreed that the pre-event cash deposits exceeded the post-event cash deposits by $6,300.
Ms Tran also agreed that based on the financial records, the accused's pre‑event gambling far exceeded his post-event gambling. This pre-event gambling was $25,154, whilst his post-event gambling was $16,963.98.
Ms Tran was also cross-examined on the Michail's bank account 8982, which was provided to her by police. In respect of a cash deposit of $5,000 made on 27 May 2018, she agreed she did not know the source of those funds. She gave evidence that soon after that cash deposit, three transfers of $1,500 were made to the accused's accounts. When asked whether if the $5,000 deposit was Ms Michail's own money, that would change her report, she answered: "A. There would be no changes. The connection was that it was - there were funds being transferred to Mr Itani's account which did not occur pre‑event but happened post-event. Q. And that connection may not necessarily be sinister, do you agree? A. Yes."
Ms Tran gave evidence that she had no way of knowing the source of the $3,300 deposit made into the account of Ms Toubia on 12 June 2018. She was asked: "Q. Again, if, following that deposit of funds into Ms Toubia's funds, there were subsequent transactions that had a connection to Khaled Itani, that might not necessarily be sinister. Do you agree with that? A. Not sinister. I'm just following the transactions. Q. Now, apart from Ms Michails, Ms Toubia, the police also have asked you to consider an international transfer relating to a person by the name of Jaad Abi-Rashed; is that right? A. They provided me with those documents relating to that transfer. Q. And would you agree with me when I say that you have no idea what the source of the money transferred overseas was? A. No, I don't know the source."
Annexure B to her second statement was a flow chart tracking payments made to the accused's credit cards. This was done pre- and post-event for CBA 4105 account. Ms Tran agreed that she did not know the source of funds used for repayments by Mr Itani to his credit card accounts.
In further cross-examination, Ms Tran identified in Annexure E to her first statement, a transaction on 21 May 2018 which represented the accused collecting $1,000 in cash from TAB winnings. There were two transactions of the same character that day. These two amounts reduced the betting outgoings of the accused by $2,000, which had been incorrectly included in the sum of $16,963.98. Annexure E was marked for identification as MFI 17.
In re-examination, Ms Tran was asked about Annexure D to her first statement (MFI 14). She provided an explanation as to transactions contained in that document as having the characteristics of wage transactions on the basis that they were the same or similar amounts, seven days apart, and each deposited at Flemington markets, plus the regularity of the transaction and the location description and amounts meant that she deemed them to have the characteristics of wage payments. After 17 May 2018, there were no further cash deposits recorded from Flemington markets. MFI 14 became Ex BD.
MFI 15 became Ex 3, MFI 16 became Ex 4, and MFI 17 became Ex 5.

[26]

Officer in charge recalled

Detective Senior Constable Lindsay was recalled. He produced a USB of two phone calls made between the accused and Zahara Michails from the Long Bay Correctional Centre on 17 January 2019. The recordings were played to the court and the USB became Ex BF.
In cross-examination, Detective Senior Constable Lindsay was asked about the accused's statement made on 2 May 2018, and the contents of [11], in which he had identified a man of Lebanese background coming into the hotel on 30 April 2018 between 2 and 3am. CCTV footage, being from DVR1, on 1 May 2018 at 2.18am, camera 8, was played to the court. Detective Senior Constable Lindsay identified footage of two middle eastern looking gentlemen walking into the hotel at that time.
Detective Senior Constable Lindsay was asked about the accused's description of seeing a man with black-coloured long hair, which was tied into a ponytail that sat high on his head. He identified a man in footage played from the CCTV at 23:23 hours on 1 May 2018, but disagreed that his hair was in a ponytail. He described it as "probably more of a man-bun".
Detective Senior Constable Lindsay was shown CCTV footage played at 2.31am on 1 May 2018, camera 5. He was asked: "Q. Sir, do you agree that the robber appears to have something in his hand pointing towards his face just before he walks into the disabled toilet at 2.35am and 51 seconds? A. He was holding his hand up to the side of his head, yes. Q. Would you agree with me when I say that there is no telecommunication evidence linking Omar Saadallah making a phone call at that time? A. That's right, yes."
Further footage from Ex Q was played which showed the accused at 2:38:48 on 2 May 2018 on the phone. Detective Senior Constable Lindsay agreed that evidence the police had obtained did not show that the accused was speaking to Mr Saadallah at that time.
Further footage shown at 2:50:15, camera 5, show the robber walking out of the bathroom, appearing to hold his right hand to his face. Detective Senior Constable Lindsay gave evidence that he agreed that the police evidence did not show that Mr Saadallah was talking to the accused at that time.
Detective Senior Constable Lindsay agreed that police never recovered the actual item used by the robber during the robbery, namely the firearm.
During cross-examination of Detective Senior Constable Lindsay, the Crown tendered four bundles of documents being synopses of various CCTV footage taken on 23, 24, 30 April 2018 and 1 May 2018, formerly part of MFI 8. The documents became the following exhibits: Exhibit BG - 49 page document headed "Belmore Hotel CCTV synopsis dated 23 April 2018 Exhibit BH - 13 page document headed "Belmore Hotel CCTV synopsis dated 24 April 2018 Exhibit BJ - 17 page document headed "Belmore Hotel CCTV synopsis dated 30 April 2018 Exhibit BK - 54 page document headed "Belmore Hotel CCTV synopsis dated 1 May 2018
In further cross-examination of Detective Senior Constable Lindsay, he was shown a photograph of Satya Kong in the manager's office. When asked what she was doing there, he answered: "A. From memory it was something to do with a reconciliation or something along those lines."
Exhibit BK was shown to the witness and he was asked about items appearing on page 23 of 54, described as: "Robber walks from pathway onto Tobruk and into hotel via side entry 2.35am. Robber has his right hand held to his ear. Robber walks into hotel directly to disabled toilets, which he enters."
Detective Senior Constable Lindsay agreed that there was no record of Omar Saadallah making a phone call to the accused at that time. He gave further evidence that during the walk-through that the accused participated in, he identified a dark SUV. The police were not able to undertake any investigations in relation to that dark SUV.
Detective Senior Constable Lindsay also agreed with the following:

That the accused had no convictions for dishonesty offences,
No convictions for firearms offences, and
No convictions for violent offences

Detective Senior Constable Lindsay was shown CCTV footage from DVR1, camera 9, of 1 May 2018, beginning at 2:22:17. He identified two middle eastern men in the footage, but did not agree that the first middle eastern man shown was interacting with the accused.
In re-examination, Detective Senior Constable Lindsay was asked: "Q. Detective, you were asked some questions about telephone calls between Mr Itani's mobile telephone and Mr Saadallah's mobile telephone, not corresponding with each other, insofar as records were concerned for relevant times, such as the robber entering the Belmore Hotel, the robber entering the toilet door, the robber exiting the toilet door to go to the storeroom? A. That's right. Q. And your answer was no? A. That's correct. Q. The Cellebrite download that or the Cellebrite examination that was conducted on Mr Itani's phone, did that have the capability to download calls or messages, if they were made on WhatsApp? A. No. Q. What if they were made on Facebook Messenger? A. No. Q. What about the application Viber? A. No."
The Crown then closed its case and there was no case for the accused.
The parties subsequently informed the court that the following were Agreed Facts: 1. That the accused departed Australia for Lebanon on 25 September 2018; and 2. The accused returned to Australia from Lebanon on 20 October 2018.

[27]

The Crown address

The Crown invited the court to examine the evidence chronologically, but also divide it into three discrete parts so as to be satisfied that the Crown had proved beyond reasonable doubt that the accused was party to a joint criminal enterprise to commit an armed robbery at the Belmore Hotel on 2 May 2018. The first part concerned the evidence in support of the planning and preparation for the robbery; the second dealt with the evidence surrounding the execution of the robbery; and the third part concerned the behaviour of the accused in the aftermath of the robbery.
With respect to the planning and preparation, the Crown submitted that Omar Saadallah arrived in Sydney from Canada on 20 April 2018 and that he stayed at the Campsie address of Zahara Michails until his departure for Canada on 8 May 2018. The court would be satisfied that Zahara Michails was told by the accused to tell police that he only stayed there for a short time. The accused, in his ERISP interview, told police that Omar Saadallah only stayed there for six or seven days. The Crown submitted this was an attempt to mislead the police on this issue and it was a lie told in an attempt to distance himself from Omar Saadallah. The Crown submitted the accused also lied about his relationship with Zahara Michails to distance himself from her and her residential address.
The Crown referred to the evidence that on 23 April 2018, Omar Saadallah hired a Mitsubishi Eclipse wagon from Hertz hire cars at Sydney airport. He drove that car to the Belmore Hotel where the accused was working on both Monday 23 April 2018 and Tuesday 24 April 2018, where he stayed until the early hours of the morning playing gaming machines and conversing with the accused and others in and around the hotel.
The Crown submitted that the accused was a heavy gambler with a gambling problem. He also was in serious credit card debt and by Thursday 27 April 2018, had started to look on websites such as Gumtree and Backyard Blasters, for toy guns and had sent emails making enquiries as to their availability.
When asked by police whether anyone else used his phone or would borrow it, the accused had denied that. It was that phone which included a search for a Desert Eagle Nerf toy gun. The Crown submitted I would find that it was the accused who conducted those searches and made those enquiries, and that explained why he was nervous when the phone was seized by police.
The Crown submitted that by 27 April 2018, the planning for the robbery was in fact underway and the accused was well on his way to sourcing a fake gun for its commission. He told police on 22 August 2018 that he and Saadallah went for a drive in the hire car, and although he could not recall where they went, he told police Saadallah had a minor accident on the Hume Highway. The location app on the accused's mobile phone identified that they went to Beaumont Hills on 27 April 2018, and they did so to buy a gun from Mr Da‑Ren Xie. Ex AM contained text messages between the accused's phone and Da-Ren Xie's phone, as does Ex AJ, in which they arranged to meet at the IGA car park in Beaumont Hills at 2.30pm on 27 April 2018.
The Crown relied on Mr Xie's evidence that the accused sent a message saying he needed 36 minutes, and one of the men apologised for being late, explaining they had been in a car accident.
The Crown submitted further support for the accident in the hire car occurring on 27 April 2018 en route to the meeting, came from the evidence of Ibrahim Droubi, that the accused spoke to him that evening, telling him that his friend had had a car accident and asking if he knew of a panel beater. Photos of the damage to the grey hire car were sent from the accused's phone to the phone of Mr Droubi on the evening of 27 April 2018.
The Crown referred to the description of the purchaser of the gun by Mr Xie, as a young man around 20 years old and about 180cms, with a thin build. The Crown submitted that the height of the man matched that of the accused. Mr Xie also thought that the purchaser's hair was black, with hair about 10cm in length, with fair skin and clean shaven.
The Crown submitted that the description Mr Xie gave of the other man as being strong with a big build, and also about 180 cms, and having skin a little bit darker, described Omar Saadallah. Mr Xie also identified a silver or grey SUV.
The Crown submitted that Mr Xie's failure to identify the accused or Omar Saadallah in the photo identification procedure, was explained by that procedure taking place on 22 January 2019, some nine months later. It had been a fleeting meeting, lasting only two or three minutes, in which the transaction was made quickly. Mr Xie had never seen the men before or after that transaction.
The Crown submitted that the gun used in the armed robbery, as described by Mr Yildiz and Ms Kong, and as shown in the CCTV footage, Ex Q, was exactly the same gun as that sold by Mr Xie on 27 April 2018. The Crown submitted that the gun was the same size and that the court would not be troubled by the gun used in the robbery not displaying any orange parts because they had been blackened or disguised. Similarly, the robber had disguised himself and had fake shiny black hair, which did not look in the slightest bit like real human hair. The Crown conceded that no witness to the robbery said they thought the robber had fake hair.
The Crown submitted that the CCTV evidence showed that on 30 April 2018, while the accused was working a closing shift, at 1.03am, Omar Saadallah arrived at the Belmore Hotel and shortly thereafter the accused indicated a particular gaming machine to him, which was situated closest to the storeroom door. The Crown submitted that for the three or four minutes they were shown to be there, the accused positioned himself behind the chair that Mr Saadallah was seated on, with his back to the side of the cloth banner that concealed the storeroom door, and that the accused moved the banner away from the storeroom so that Mr Saadallah could discretely look at it, as shown on Ex R.
At 2.08am on the same morning, Omar Saadallah was shown on the CCTV footage (Ex R) to enter the disabled toilet in the gaming room, and as he did so, he turned and before he closed the door, took a good look back at the storeroom door, which was adjacent to the disabled toilet door. At 2.45am that morning, the accused went to the same disabled toilet and was shown making a fleeting check of the disabled toilet. The Crown submitted that in the days leading up to the robbery, two different types of behaviour were demonstrated by the accused and Mr Saadallah when they went into the disabled toilet. There was behaviour consistent with "casing the joint at times, and at other times, then not".
The Crown also relied on the CCTV footage in Ex R to show the accused going to that toilet at 2.57am and again at 4.02am, for a quick check of the toilet. The Crown submitted that the CCTV evidence showed that on 1 May 2018 at 11.15pm, during his night shift, the accused moved the disabled toilet sign which was adjacent to the storeroom door, towards the storeroom door, for the purpose of propping that door open. This was relevant, as on 2 May 2018 at 2.35am, the CCTV footage showed the robber going straight to the disabled toilet and then 15 minutes later, straight from that toilet into the storeroom. The distance from the entry to the disabled toilet to the storeroom was 4 to 5 metres.
The Crown submitted that since his arrival in Australia, Omar Saadallah had been to the Belmore Hotel on every shift worked by the accused, but only after the accused had started his shift, and on each occasion he stayed there until the early hours or close to closing time. The Crown submitted that on the night before the robbery on 1 May 2018, Saadallah came in alone before the accused's shift started, arriving at 8.20pm, and that he left at either 9.35 or 9.39pm, before the accused started his shift. The Crown submitted that he was not there with the accused on this shift, because he was preparing for the robbery and he was not physically present with the accused on this shift because from 2.50am he was hiding in the storeroom. The Crown referred to Ex Q, CCTV footage at 9.25pm on 1 May, when Mr Saadallah went to the disabled toilet and, on this occasion, took a long look back at the storeroom door.
The same CCTV footage showed the accused starting his shift at 11pm on 1 May 2018, and at 11.15pm, he moved the retractable disabled toilet sign, which remained in the same position when the robber entered the storeroom at 2.50am, and then came out of the storeroom at 4.23am with the accused held at gunpoint.
The Crown acknowledged that after 11.15pm, both the manager and the bar attendant had gone into the storeroom and that neither gave evidence that the sign was in a particular place or was causing the storeroom door to remain open. The Crown submitted that notwithstanding that, the court would draw an inference that the accused moved the sign so as to prop the storeroom door open, so that it would be easy for the robber to get in.
Further, the Crown submitted that the evidence established that seven and half minutes before the robber entered the Belmore Hotel at 2.35am on 2 May 2018, his mobile telephone ending in 815, was processing through a Telstra cell tower based in Tudor Street Belmore. This was shown on Ex AJ, page 25.
The Crown submitted that the robber knew exactly what he was doing at 2.35am when he entered the hotel. He purposely headed for the disabled toilet and then emerged 15 minutes later at 2.50am, when he made "a beeline" for the storeroom. The Crown then made the following submission: "The robber knows that there is no locking mechanism and he knows it's not cosmetic and he knows he can get inside to hide and he knows how to pry open the door, and he knows this, you might think, because he's been given the information, the Crown says, by Khaled Itani, and he's able to get there, you might think, because Mr Itani has kept distracted the only other staff members who are on shift at that point in time, Ms Kong and Mr Yildiz, who are up at the main bar, and Mr Itani is talking to them, and you can see that on the CCTV footage at about 2.38 that morning."
The Crown submitted that the court would be untroubled by the lack of evidence of telephone communication between the accused and Mr Saadallah at the point of entry at 2.35am or thereafter, "having regard to the number of other mechanisms by which communication could be achieved, such as WhatsApp, Facebook Messenger and Viber".
The Crown submitted that the robber was a similar height and build to Mr Saadallah, and in the accused's ERISP interview, he had described Mr Saadallah as the same height as him, about 180 cms.
The Crown submitted that the court was entitled to look at issues of height and build, along with the fact that Ms Kong gave evidence that the robber spoke with a middle eastern accent. The Crown submitted he also had a gun identical to the one purchased from Mr Xie days earlier.
The Crown also relied on the evidence in the CCTV footage of the accused during his shift to support his involvement in the robbery. The Crown relied on the CCTV evidence at 23:37 on 1 May 2018, which established that the accused was taking a long look back at the storeroom door as he entered the disabled toilet. Again, at 1.10am, CCTV footage in Ex Q showed the accused taking another long look as he entered the disabled toilet, which the Crown submitted was part of assessing the storeroom door from the perspective of the disabled toilet. At 1.29am the accused again went to the disabled toilet, which the Crown submitted was a final check from the perspective of the toilet at 2.31am, four minutes before the robber entered the Belmore Hotel.
The Crown relied on CCTV footage taken at 2:38:22 showing the accused talking to the manager, Mr Yildiz, at the main bar in the hotel. The Crown submitted that this showed the accused paying particular attention to engaging the other staff at this point in time, or distracting them. This was, the Crown submitted, "because whenever they move he moves and he's … intent on hearing whatever conversation that they're having, keeping an eye on them, that they're both in that area and not elsewhere." This was notwithstanding that the CCTV footage showed at one point the accused moving along the bar, remaining by himself.
The Crown then relied on CCTV footage taken at 2.59am showing the accused adjusting a chair to the gaming machine closest to the storeroom, "and checking the door to the storeroom".
The Crown submitted that following 2.59am, the accused knew the robber was "safely ensconced in the storeroom". A check at 3.03am of the disabled toilet was described as "only a fleeting one". Further, the Crown relied on footage taken at 4.25am as being a final check that the accused perform on the whereabouts of the manager Mr Yildiz, prior to the robbery.
The Crown submitted that the court would pay close attention to the evidence concerning the closing procedures at the Belmore Hotel. The manager Mr Yildiz was a relatively new employee. He gave evidence that he clearly remembered asking the accused, "Did you check the toilets? Is there anyone left in the pub?", and the accused said, "No one left in the pub. I checked everywhere."
The Crown also relied on the evidence of Ms Kong, saying, "I overheard Maz ask Khaled if the toilets were all cleared, and he said yes, and that's when I proceeded to do the clearance", meaning clearing the poker machines.
The Crown submitted that both witnesses were unshaken in cross‑examination on this point, and both contradicted the accused who maintained that this was never said.
The Crown relied on the evidence of Ms Kong that she noticed something unusual about the way the accused was acting on this shift when she was clearing the money. She had stated, "he looked very agitated, a bit nervous, because he never used to walk, like, around the gaming room, he stayed in one spot, never asked for help or anything like that. That's why I found strange with the offering of help and the constant keeping an eye on me".
The Crown also relied on the evidence of Mr Yildiz that the accused never came into the office, and that they would use radios to communicate. On this night he was acting quite differently, and the Crown submitted that his actions were informed and his agitation was "because the time for staging the robbery was fast approaching".
The Crown submitted that the accused knew "that there was little point entering the storeroom at any point earlier than when Satya Kong had almost finished emptying the machines, because the money would have been locked up within the machines and not out on the trolley in the pencil cases for ease of access".
The Crown submitted that the accused gave a number of different accounts of how he came to enter the storeroom. First, in his statements to the attending police officers at the scene, and later in the walk-through and in his ERISP statement. He told police that he needed to go to the toilet and that is how he came to notice the storeroom door being open, which he went to check on.
The Crown submitted that Ms Kong had the keys to the poker machines. The Crown then submitted: "The accused also knew, you might think, that this money had to be accessed before Ms Kong finished her round and before Mr Yildiz came out to help Ms Kong clear the machines and those funds made their way into the safe in the office, the door to which, as Mr Yildiz told you, was unable to be opened once he deposited the money into it and closed the door, because he did not have the key to it. But he did have keys to the cash redemption terminals, which apart from the pokie winnings were a particular focus of the robber during this robbery. Ms Kong told your Honour the particular route she took to clear the machines and she charted that in exhibit V. She gave evidence that at the time she heard the accused call out her name as he approached with the robber, she was up to the final set of machines, being 27, 28 and 8, and you will find that evidence at T 174, line 5. … This is why, in the Crown's submission, the accused went to the disabled toilet at the time he did, at 4.23am, which was well after the pub had been locked and when clearing procedures were well underway, and indeed, had almost finished as he had emerged with the robber. This is not a coincidence, submits the Crown, but a well-planned attack by the accused and the robber on the pub, and the accused's account of why he went to the toilet, whether it be to check the toilet or use the toilet, was a ruse, and that CCTV shows, your Honour, he didn't even go into the bathroom at 4.23." The Crown then played Ex Q at that time.
The Crown submitted that the accused could not have used the toilet because he did not even go in to it. The real reason for going to the disabled toilet prior to the robbery occurring, was that he needed a reason to go to the storeroom in order for the robbery to be staged, "so before he did that", the Crown submits, "he made a final check that Yilmaz Yildiz was safely ensconced in the office, preoccupied with the Excel spreadsheets, before heading to the disabled toilet in order to begin the staging of this robbery, with the robber at a time … when the poker machines were almost entirely cleared and the money was accessible and that is exactly what he did."
The Crown invited the Court to look closely at the behaviour of the robber and the accused during the robbery itself. It was submitted that the robber took "A comparatively hands off approach to Mr Itani during the course of the robbery compared to the very hands on and very violent approach that is taken with Mr Yildiz, so much so that Mr Yildiz at one point hears the accused say to the robber, 'Take it easy'".
Ms Kong gave evidence corroborating that it was the manager Mr Yildiz and not the accused who was the focus of much of the violence. The Crown submitted that at various times on the CCTV footage, the accused was shown to be either beside or behind the robber, and the robber had turned his back on the security guard a number of times. This was characterised as highly unlikely behaviour if the accused was a stranger to this robber. The Crown submitted further, that after the robbery, the manager wanted to go out of the disabled toilet and call the police, but the accused told them to stay longer, in order to allow the robber more time to get away.
The Crown relied on the following evidence of what occurred after the robbery. When Detective Fretten seized the accused's mobile phone, the accused became nervous and requested it back for the purpose of deleting photos from it. He gave the Detective the wrong PIN number twice. The Crown submitted the accused had unexplained wealth immediately after the robbery. He gambled excessively in May 2018 and paid significant sums off his credit card in the same month, despite the fact that he never went back to work at the Belmore Hotel, or anywhere else.
The Crown submitted that it was the accused who was behind the transfer of $5,000 from Ghada Toubia's son Jaad Abi-Rashed, on 7 May 2019, to Ahmed Alghazawi via Western Union, by virtue of his relationship to Abi-Rashed and Toubia. Similarly, the transaction made by Zahara Michails on 9 May 2018 to Omar Saadallah's wife, Halah Thiab, of $4,774.00, was made at the behest of the accused. Zahara Michails gave evidence that she made this transaction on the accused's instructions, without questioning its purpose, and he gave her the cash to make it, either the night before or the morning of the transfer.
The Crown relied on the two gaol calls, Exs BE and BF, to submit that the accused, in a guarded yet deliberate way, had instructed her to tell police if asked, that the recipient of that transfer was her friend, and that the money had come from her savings because she had worked. Further, in cross‑examination, Zahara Michails had been asked whether the accused could have given her the cash that was transferred to Western Union, however, she did not remember that.
The Crown relied on the fact that on the evidence on 2 May 2018, the accused had $58.18 in his transaction account, however, in an eight day period from 8-15 May 2018, he was able to pay $16,025.00 off his credit card, and in May 2018, he was able to bet at least $10,570.00 for a return of only $214.
The Crown submitted that the accused's win on the poker machines of $6,201 at the Banksia Hotel on 5 May 2018 cannot account for the amount of cash the accused had access to in May 2018 and what he did with it. The accused had told a number of lies on the morning of the robbery, the most telling of which was that he wanted to and did use the disabled toilet just before the robbery, however, the CCTV camera showed that he did not even go into the toilet.
The Crown submitted that it had a strong circumstantial case, the strands of which formed a strong cable, and pointed to the accused being involved in the joint criminal enterprise to commit the armed robbery beyond reasonable doubt. The Crown submitted I would find and return a verdict of guilty.
The Crown further clarified that it relied on the lies told by the accused only as to credit and not going to consciousness of guilt.

[28]

The address on behalf of the accused

It was the defence case that the accused had nothing to do with the robbery that occurred at the Belmore Hotel on 2 May 2018. The accused was a victim of the robbery, and had maintained his innocence from that morning by giving exculpatory accounts.
Counsel submitted that the accused maintained his innocence to the police when they first attended the crime scene in a statement taken in a police notebook which he did not have the chance to read, in his statement dated 2 May 2018 (Ex S), in his electronically recorded interview on 22 August 2018, and in the controlled operation involving the hotel's manager Mr Yildiz.
In relation to the Crown's circumstantial case, insofar as it relied on strands in the cable reasoning, counsel submitted that the facts established on the evidence, by themselves, cannot prove the guilt of the accused beyond reasonable doubt. Counsel submitted that some of the basic facts upon which the Crown relies are not supported by the evidence, for example, the propping up of the storeroom door by use of the disabled toilet sign. Further, the inference that the Crown was asking the court to draw could not be made, as for an inference to be reasonable, it must rest on something more than conjecture, relying on R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47]. Counsel submitted that the ultimate inference the Crown sought to be drawn, namely that the accused was guilty beyond reasonable doubt, could not be proven beyond reasonable doubt.
Counsel submitted that much of the Crown case against the accused was based on speculation and conjecture. The first difficulty in the Crown case was proof of the involvement of Omar Saadallah, which counsel submitted was an indispensable part of the Crown case and could not be regarded as a strand in the cable. That was because the only person the Crown poses as the robber was Omar Saadallah. The Crown had opened the trial on the fact that the accused and Omar Saadallah acted in concert as a joint criminal enterprise. It was submitted that there may be a circumstantial case where one or more of the facts relied on by the Crown are so fundamental to the process of reasoning to find the guilt of the accused, that such facts must be proved beyond reasonable doubt. As intermediate facts, those facts become indispensable links in a chain of reasoning towards an inference of guilt, relying on Shepherd v R (1990) 170 CLR 573; [1990] HCA 56.
Here, the alleged involvement of Saadallah was clearly an indispensable link in the prosecution case because if the robber was not Saadallah, other aspects of the Crown's case became seemingly meaningless.
Counsel submitted that it was not possible for the Crown to establish Saadallah was the robber. First, his physical appearance differed from that of the robber shown in the CCTV evidence. Saadallah was a bald man, and the robber had what resembled long hair. The Crown submission that the court would infer that that was not real hair but fake hair, was based on mere conjecture. There was no expert evidence or other evidence as to whether the hair was real or fake.
Video footage was shown from Ex 6 taken at 4.28am. That CCTV footage showed hair sticking out from the back of the robber's head and also showed the robber violently push the accused into the bathroom. This evidence meant that the court could not find that the robber gave preferential treatment to the accused. It was also clear from the footage that the robber was wearing different coloured clothing than that worn by Mr Saadallah when he appeared in the hotel earlier that evening. Exhibit M established that Saadallah's height was 178 cms, whereas the evidence of Mr Yildiz was that the robber was between 185 to 190 cms tall.
Counsel submitted that to make a comparison between Saadallah and the armed robber from CCTV footage of both men walking into the disabled toilet, and thereby draw an inference that they were of similar height, or the same height, was a dangerous approach because of the camera angle from above.
Counsel referred to the CCTV evidence which showed the robber being on the phone at critical moments, namely before entering the hotel and before entering the disabled toilets, and after leaving the disabled toilets. There was no CCR evidence that linked either the accused or Saadallah to those phone calls. The submission made by the Crown that there was a possibility of communication by WhatsApp calls or Viber, or some other social media platform, was not supported by evidence, but was based on conjecture.
Counsel also referred to evidence concerning Mr Saadallah's movements which were not consistent with his involvement in the robbery. He arrived in Australia on 20 April 2018 and left on 8 May 2018. His application for a visa was submitted on 18 December 2017, which was before the accused commenced work at the Belmore Hotel. It was submitted that it could not have been Saadallah's intention on 18 December 2017 to rob the Belmore Hotel.
Once in Australia, the evidence established that Saadallah visited the Belmore Hotel while the accused was at work on 23, 24 and 30 April 2018. He also attended the Banksia Hotel with the accused on occasions. The fact that Saadallah remained in the country for six days following the robbery before his departure, also cast doubt on whether he was the robber. It was submitted that a visitor who had committed a grave or serious crime would not risk detention and apprehension for so long if they had indeed committed that crime.
The Crown had relied on the robber having a deep voice, and sounding middle eastern, relying on the evidence of Ms Kong. There was no evidence about whether Saadallah had an accent or not. In any event, counsel asked rhetorically, in respect of the middle eastern sound that Ms Kong described, "What does that even mean?" The evidence about the accent of the robber therefore did not take the Crown case anywhere.
Exhibit AJ established that the robber entered the hotel at 2.35am. At 2.27am on two occasions, the mobile phone of Saadallah was pinged at a cell phone tower in Tudor Street Belmore. It was submitted that the evidence established that Saadallah left the hotel at 9.39pm on 1 May 2018 and thereafter his phone was pinged from the Belmore Tudor Street tower on a number of occasions between 23:07:46 and 00:56:55 on 2 May 2018. His phone was also pinged from that same tower at 8:27:45am, a number of hours after the robbery. It was submitted that that evidence did not reveal precisely where the person was, however, the Crown could not exclude as a reasonable possibility that Omar Saadallah had some innocent business in being in the area that would pick up his phone using the Belmore Tudor Street cell tower.
In his ERISP interview, the accused told police of his belief that Saadallah may have been with a Persian girl. It was submitted the Crown could not exclude that as a possibility. There was therefore nothing sinister about Saadallah's presence in or around the Belmore area.
Further, whilst the armed robbery took place at 4.23am, at 4.42am, Saadallah sent the accused a message saying, "Are u done?" At 4.50am, he sent a further message stating, "i'm outside when you're done". It was submitted that the court might think it unusual for the robber to remain at the scene of the crime for whatever reason, following the commission of a grave and serious crime, because one would expect that it would be minutes before the police arrive following a robbery.
It was submitted that there was insufficient evidence to allow the court to conclude beyond reasonable doubt that Omar Saadallah was the man with the gun. It was not a finding the court could make, and if it was a link in the chain, the chain was broken.
Counsel submitted that the evidence did not establish that the accused propped open the storeroom door with the disabled toilet sign. The CCTV footage showed that at 11.15pm on 1 May 2018, the accused moved the retractable sign a short distance towards the storeroom door. However, it was submitted that the evidence strongly suggested that he did not prop open the storeroom door. This was described as a "prosecutorial red herring". The importance the Crown placed on that evidence was misguided and appeared to be an example of what the eye wants to see, and was a perfect example of how suspicion, even if genuinely held, can be completely misguided. The evidence established that after 11.15pm, both Ms Kong and Mr Yildiz were going in and out of the storeroom all night. Both confirmed that they understood that it was important that this door remained closed. At no time did anyone complain that the disabled sign was propping open the door.
The court was taken to CCTV footage of the employees entering and leaving the storeroom at 23:35 hours (Ms Kong), 23:48:20 hours (the accused), 00:45:30 on 2 May 2018 (Mr Yildiz), and 00:58:57 (Mr Yildiz). Again, at 1:15:50 Mr Yildiz again entered the storeroom and there appeared to be no interference with the sign, either when he entered or left the storeroom. The officer in charge had confirmed that no employee said anything about the sign propping open the door, or complained about the sign. Further, Mr Andrews, the manager, had given evidence about the ease of opening the door, that no staff member ever complained about not being able to open the door, and that security were required to check to make sure that everything was okay in the storeroom. Otherwise, he gave evidence that it was expected that the external door to the storeroom remained closed. Similarly, Mr Yildiz had given evidence that if at any time he saw the door to the storeroom open, then he would close it. He would also expect a member of staff to do the same. Ms Kong had been cross-examined about the storeroom door and gave evidence that she made sure that it was closed and flush with the wall whenever she left the storeroom. She gave further evidence that there was no obstruction between the door and the wall of the hotel, and that she did not leave the door open at all.
Counsel submitted a number of propositions arose from that evidence. First, there was no reason to prop open the storeroom door because it was easy to open. Secondly, everyone knew how important it was to keep the storeroom door closed and no one noticed that it was propped open. Nobody complained about anything unusual about the storeroom door or the disabled toilet sign. The evidence strongly suggested that the storeroom door was not propped open by the disabled sign and therefore that strand in the cable of the Crown's case was broken.
Next, counsel submitted that there was nothing sinister or unusual about anything the accused was doing or anything he said in the lead up to the robbery.
Counsel submitted that the CCTV footage relied on by the Crown amounted to snippets of what happened on 1 May and snippets of what happened in the shifts prior to 1 May 2018. There would have been hours of footage from all of the angles that would have shown benign matters, one of which was the accused presence in the manager's office. It was submitted there could be no suggestion on the evidence that anyone informed the accused that the office was out of bounds to him as a security guard. Counsel referred to Mr Yildiz's evidence where he had no memory of ever telling the accused that he was not allowed in his office. Further, Mr Andrews had never discussed with him the hotel security plan. This was relevant to the suspicions raised by Mr Yildiz and Ms Kong about the accused's conduct on the night of the robbery. Mr Yildiz had agreed that when shown the footage of the accused in his office at 3.22am, he was quite relaxed and it wasn't a problem for him that the accused was in his office. The reason was because there was nothing wrong or sinister about the security guard having a discussion with the hotel manager in the manager's office.
Counsel also referred to the CCTV footage at 3.19am, when police officers entered the hotel, following which, at 3.22am, there was a discussion between the security guard and the manager in the manager's office. Mr Yildiz agreed that it was possible that the accused was discussing with him the police being on the premises to ask him questions about a fight earlier in the day. There was nothing untoward or sinister about it. Further, in his statement on 2 May 2018, Mr Yildiz said nothing about any concerns he had about the accused or Mr Saadallah. Thus, the evidence of Mr Yildiz about unusual behaviour or suspicious behaviour of the accused on the night of the robbery needed to be treated with caution because those suspicions crept in after reflection and perhaps discussion with Ms Kong.
Counsel also submitted that there was nothing sinister about the accused wanting to wait in the disabled toilet for a short time before leaving, after the robber threatened to shoot anyone who left the toilet. Nor was there anything unusual or sinister about the accused saying to the armed robber, "take it easy, man".
Counsel referred to the evidence of Ms Kong to the effect that there was something suspicious in the way the accused was acting when she was clearing out the money, and that he looked, "very agitated, bit nervous, because he never used to walk around the gaming room, he stayed in one spot, never asked to help or anything like that".
Ms Kong's description of the accused being "very agitated and a bit nervous" did not appear in her statement. There was nothing unusual or sinister about the accused doing laps or walking around the poker machine room at closing. The evidence did not establish that anyone ever told the accused that he shouldn't walk around the poker machine room at closing. However, it was submitted that the evidence does establish that walking around or patrolling the poker machine room was part of the accused's closing routine. The accused had told the police that during his ERISP interview. Further, Ms Kong had conceded in her evidence that it was possible that walking around whilst she was emptying the money from the poker machines was something that the accused did, but it was something that she had never noticed. This was characterised as a perfectly proper concession and was consistent with the accused's record of interview.
Counsel submitted that the accused's offer to Ms Kong of help with the poker machines and his question about leaving the poker machine doors open was consistent with the accused's innocence. There was a new system in place and it was only about one week old. It was therefore entirely understandable that the accused was unaware of it, given that he only worked on Mondays and Tuesdays at the hotel. Ms Kong gave evidence that this was the first and only conversation that she and the accused had about the new system.
Counsel submitted that there was nothing implausible about this, and nothing sinister about the accused as security guard, asking about a new system of collecting money. The evidence also established that the accused and Ms Kong were familiar with one another. It was submitted that the suspicions of a witness can never be determinative of the outcome of a circumstantial prosecution. Thus, the suspicions of Ms Kong and Mr Yildiz did not take the Crown case very far.
Counsel referred to the $96,000 stolen that may have comprised coins and notes. The evidence was silent on that, however, given the technology available, and the cash redemption machine, suggests there would have to be notes. Counsel asked rhetorically, "Where is the $96,315.00?" He submitted that the Crown could not account for anything close to that sum.
Counsel referred to what he described were a number of red herrings in the evidence of financial transactions. The first was the transfer of $5,000 by Jaad Abi-Rashed to Ahmed Alghazawi by Western Union on 7 May 2018. The Crown invited the court to infer that that transfer was made at the direction of the accused, using cash that was stolen from the Belmore Hotel. It was submitted this was a very long bow to draw. There was no evidence as to where the money came from or why it was sent, and there was no evidence from either Mr Abi-Rashed or Mr Alghazawi. The inference the Crown sought to draw rested on mere conjecture. Further, it was not incumbent upon the accused to establish that some inference other than guilt should be drawn from the evidence, relying on Baden-Clay, supra, at [62].
Further, Ms Tran had given evidence that she had no knowledge of the source of the $3,300 deposit paid by Ms Toubia into her account on 12 June 2018. Similarly, the $5,000 cash deposit into Ms Michails' account on 27 May 2018 was money Ms Michails said came from her savings. There was no evidence to contradict Ms Michails' version in that regard. The evidence was not challenged and did not appear to have been a feature of the circumstantial case put by the Crown in her closing address. There was no reason for the court to reject that version, and therefore it was not a relevant transaction. The transaction was relevant because it explained away a portion of the funds used to pay off the accused's credit cards.
Counsel submitted that the analysis of the accused's financial transactions carried out by Ms Tran, the forensic accountant, did not support an inference that the accused was in possession of cash from the robbery, following the robbery. It was submitted first, that the evidence established that the accused was in the habit of making frequent and sometimes large cash deposits before the robbery which could not be explained by reference to his declared income. Ms Tran gave evidence that unexplained cash deposits were commonplace in the accused's pre-robbery transaction history. For example, $7,650 was deposited by the accused on 26 February 2018, and $4,020 on 26 March 2018. Smaller regular payments made by way of cash deposits were suspected to be income derived by the accused. In February, there had been a peak when $10,010 was deposited into the accused's CBA 0341 account. In May there was another peak when $13,375 was deposited into the same account. Ms Tran had conceded the possibility that if poker machine winnings were paid out in cash, that would explain the peak in May 2018. Ms Tran further agreed that both pre-event and post-event, the majority of funds going into the accused's CBA 0341 account were classified as "other funds". It was submitted there was nothing unusual about large cash deposits being made into the accused's bank account before the robbery, and the presence of a larger deposit in May 2018 was not in itself unusual or sinister. Rather, there was an innocent explanation for the money peak in cash deposits.
In his ERISP interview, the accused had told police that he had won money on gambling machines. At question and answer 259, he told police that he had won "$6,700, something like this", which was quite close to the $6,201 he had won on 5 May 2018. Exhibit BD showed deposits on 26 and 27 May totalling $6,150. The accused's explanation could also explain the $3,400 cash deposit on 16 June 2018. Also relevant was that in the four month pre‑event period, cash deposits amounted to $22,905, whereas, in the five months post-event period covered by the banking records, the cash deposits were $16,625, a difference of $6,300 confirmed by Ms Tran.
Counsel provided an aide memoir in respect of the defence CCTV references in Ex 6, which was marked for identification as MFI 19.
Counsel returned to the concession made by Ms Kong, that there was nothing in her first statement to police about the accused being agitated or nervous at a time when she was servicing the machines 10 or 11. She agreed that it was possible, with the passage of time, that she may have been mistaken about that. This was characterised as an honest and appropriate concession, demonstrating that with the passing of time it may be that memories change and people's suspicions become emboldened.
Counsel also returned to the CCTV footage at 4:28:14 on 2 May 2018, when the accused was taken into the disabled bathroom, along with the two other employees. It was submitted that the Crown's submission in relation to the conduct of the accused at that point in time, being suggestive of guilt, was an unfair submission. It was the security guard who first stuck his head out and given the threat of the robber to shoot if anyone walked out, there was nothing unusual or suspicious, or sinister, about what the accused did at that time.
Counsel returned to the analysis of the pre- and post-event cash withdrawals made by the accused from his account. On 5 May he made four withdrawals of $500 at the Banksia Hotel, suggesting that he did not have access to a large amount of cash that was stolen from the robbery.
Further, Ms Tran gave evidence that the accused pre-event gambling by far exceeded his post-event gambling, based on his banking records. The pre‑event gambling was $25,154, whereas the post-event gambling, over a longer period, was $16,963.98.
Counsel referred to the evidence with respect to the accused's credit cards which demonstrated that between 8 May 2018 and 23 September 2018, there were payments of $6,300 made into those accounts. Further, the evidence did not establish the source of the funds used for repayments that totalled $10,950.
Counsel submitted that in respect of the deposit by Ms Michails of $5,000 into her account on 27 May 2018, that resulted in $3,500 being transferred by way of payment to the accused's credit cards, which also equates to most of the $5,790 shown as account transfers, seen in the flow chart at Ex BB.
Counsel submitted that the accused did have access to money, not only from poker machine winnings, but also from the recovery of his own debts that he had loaned to people. The evidence the Crown relied on in respect of cash deposits, cash withdrawals, gambling activity, and credit card payments, did not support the inference that the Crown was asking the court to draw, namely, that the money must have come from the robbery.
Nor could the court draw the inference that the money sent by Zahara Michails to Halah Thiab, being $4,774 on 9 May, should amount to an inference that those funds were the proceeds of the robbery. Counsel submitted there were a number of reasons why the court would not draw that inference. First, it was a relatively modest sum of money and nowhere near what one would expect to be a significant portion of the share the robber would be expected to get for his role in the robbery, if in fact Mr Saadallah was the robber. Secondly, absent any other evidence of Mr Saadallah receiving or being in possession of a significant portion of $96,000, the transfer did not advance the prosecution case very far. Thirdly, the evidence establishes that Mr Saadallah and the accused were friends and had been friends for many years, and were indeed close friends. There could be any number of reasons why the accused would have sent his friend a relatively modest sum of money that has nothing to do with the robbery.
It was submitted that the financial evidence put before the court did not support the inferences that the court was being asked to draw.
In relation to the evidence of Mr Da-Ren Xie and the Desert Eagle pistol, counsel submitted that there was no direct evidence that the gun supplied by Mr Xie was the same gun used in the robbery. The circumstantial evidence relied on by the Crown had a number of difficulties. First, the gun used in the robbery was never found. The court could not be sure whether the gun used in the robbery was real or fake and the gun in Ex 2 had a number of obvious parts that were bright orange, and not one of the witnesses said anything about any of the bright orange features of the gun. Ms Kong identified it as being "all black", however, the gun not only had a number of orange parts, but the gun barrel itself was orange. There was absolutely no evidence or direct evidence that the gun seemed painted or coloured, and a significant difficulty for the Crown is that the CCTV footage clearly shows an entirely black gun. Thus, the link could not definitely be established in the Crown's circumstantial case. It was submitted that the court would need to find beyond reasonable doubt that the gun sold by Mr Xie was the gun used in the robbery, because it was an indispensable link in the chain. It was submitted that the court could not make that finding beyond reasonable doubt.
Counsel also challenged the inference the Crown relied on, namely, that it was the accused who purchased the gun. Counsel conceded that the evidence established a link between a phone number of the accused and of Mr Xie. It was submitted that that does not prove that the accused was there when the gun was purchased. Rather, there was significant doubt as to whether the accused was there. It was not just that Mr Xie was unable to identify the accused in a photo identification process, Mr Xie's description of the purchaser was wildly different to that of the accused. Mr Xie's description of the man's age, absence of beard and fair skin colour, were completely inconsistent with the darker complexion of the accused seen on CCTV. Whilst the evidence established that the mobile phone of the accused was used to communicate with Mr Xie, and the mobile phone was there when the gun was purchased, the description given by Mr Xie is so wildly different that the court would find difficulties concluding that it was the accused who purchased the gun.
Counsel also referred to Ex AO, which included a number of searches or correspondence about the purchase of a toy Nerf gun with foam darts, and asked rhetorically, "Why would a robber need foam dart suction cup refills to stage a robbery with a fake gun?" Counsel submitted that this evidence sheds doubt as to whether or not the actual searches on the accused's phone were truly done in the course of trying to procure a fake firearm for the purposes of staging a robbery. It was more indicative of an interest in buying a toy.
Further, counsel relied on the fact that the accused, as well as Mr Yildiz, referred to the gun used by the robber as being plastic. He asked rhetorically, "Why would he say that if he was the one who purchased the fake gun to stage the fake robbery?" It was submitted that a guilty person would try and distance themselves from the fact that a fake gun was purchased, particularly if searches for a fake gun were made knowingly from his phone.
It was submitted that the Crown would need to prove, beyond reasonable doubt, that Ex 2 is the exact type of gun that was used in the course of the robbery, and that it was the gun that Mr Xie sold that was used in the robbery. It was submitted that that could not be proved beyond reasonable doubt. Secondly, the Crown would have to prove that it was the accused who purchased the gun, and again, that was not an inference that the court could draw.
Counsel relied on the evidence of the controlled operation between Mr Yildiz and the accused, in which the accused made absolutely no admissions. A further exculpatory exercise was the walk-through, and then there was the accused's ERISP interview.
Counsel referred to the evidence in Ex AJ which established that at 5:28:42am on 2 May 2018, the accused sent an SMS message to Mr Saadallah saying, "ill be late bro cz we got rubbed". These were followed by four further SMS messages between Saadallah and the accused within a minute, in which Saadallah asked, "should I leave? or wait for you?", and "should I come back later?", to which the accused responded, "know so you can come pick me up", and then "they will take us to the station later so when I finish I'll let u …". These messages were entirely consistent with innocence and were entirely consistent with the accused's account in that he was a victim of the robbery.
Counsel submitted that the court could not reject the consistent denials and protestations of innocence made by the accused.
Counsel referred to the accused's statement made on 2 May 2018 (Ex S), in which he told the police about the loan made by him to James Leatherbarrow, the previous manager of the hotel. Counsel submitted there were aspects of the accused's statement which were supported by the CCTV footage. For example, he described the attendance of two Lebanese males and his description matched quite squarely with what was shown on the CCTV footage at 2.18am on 1 May 2018. The accused also told police about the attendance of a man of muscular build, about 28 years old, who had black coloured long hair which was tied at the back into a ponytail which sat high on the back of his head. CCTV evidence on 1 May 2018 at 23:24:23 showed a gentleman of that description with what was either a ponytail or what the officer in charge described as a "man-bun". Counsel submitted that the accused during his walk-through described seeing an SUV following the robbery, which was supported by the synopsis tendered by the Crown.
Counsel addressed what the Crown submitted were lies told by the accused. The first related to his answer at ERISP Q446 in relation to Omar Saadallah staying at the Campsie unit, and the accused's status of the relationship with Ms Michails. It was submitted that whilst participating in the ERISP, the accused was clearly under the impression that someone was trying to set him up and extort him. He made several references to that and particularly at Q1474. It was quite clear that the controlled operation had left him with a sense of apprehension and a sense of anxiety. It was submitted that no one corrected the accused and no one told him that the operation or the interaction with Mr Yildiz was part of a controlled operation, and that he did not have to worry about it. This would explain why the accused felt defensive when parts of Mr Yildiz's and Ms Kong's statements were put to him. It was submitted that it was open for the court to find that the controlled operation could very well have given rise to a heightened level of apprehension and worry and suspicion that could have affected the manner in which he answered the police questions. It was submitted that the purest version of the accused was his statement given to police on 2 May 2018. The court should therefore be cautious in approaching the question of credibility of the accused during his ERISP. Counsel submitted that the lies relied on by the Crown did not take the Crown case too far. The court should bear in mind that a person may have a reason for lying, quite apart from trying to conceal his guilt.
In relation to the Crown submission regarding the accused's giving instructions to Zahara Michails to lie to the police, counsel submitted that that should be considered in context of Ms Michails' evidence that police were constantly in contact with her, that she felt overwhelmed, that she felt absolutely stressed, and that she complained constantly to the accused about how the police were making her feel. It was during those conversations that the accused would tell her what to say to the police, and they were conversations at times where he was trying to calm her down. When asked: "Q. When he was trying to calm you down during those conversations, would he tell you what to tell the police? A. There were a few times, just a few times."
Counsel relied on that evidence to submit there could be any number of reasons why a person might tell a lie. It could be said to protect another person or to avoid some other consequence, and the evidence supported a conclusion that that is what happened here. The evidence established that it was possible the accused told Zahara to lie to protect her from the distress that she was feeling as a result of the investigation and to avoid the consequence of being the subject of further police interest. That was also supported by what was said in the recorded gaol calls between Zahara Michails and the accused.
Counsel submitted that the court should have regard to the possible motivation for the accused saying what he said to Zahara Michails. He was subject to an unjust accusation which went part and parcel with the controlled operation involving Mr Yildiz. He had been bail refused and that explained why he was quite defensive when questions were put to him by the police about what Mr Yildiz said in his statement.
Counsel submitted that the evidence relied upon by the Crown as to planning of the robbery, did not take the prosecution case anywhere. The evidence supported a conclusion that there were times when Saadallah would gamble alone without the accused, for example, an SMS message sent on 28 April 2018 at 00:40:06 from the accused to Saadallah which read, "Come here, the machines better". It was submitted there was absolutely no significance that anyone could attach to the fact that Saadallah was at the Belmore Hotel prior to the shift of the accused commencing on 1 May 2018.
In relation to the Crown's submissions concerning the accused attending the disabled toilets on numerous occasions, it was submitted that the Crown's argument was quite tenuous. There could be any number of reasons why a security guard could go to the bathroom either for a fleeting check or to personally use the bathroom. The Crown's reliance on this evidence did not take the matter very far. The submissions made by the Crown relating to whether the accused or Saadallah were turning around when they were walking into the disabled bathroom, where they were looking when they left the disabled bathroom, were tenuous arguments that did not take the Crown case very far.
Counsel also addressed the submission made by the Crown in relation to the accused distracting Mr Yildiz at about 2.30am on the morning of the robbery. On watching the CCTV footage, there was no evidence of a distraction and the court could not make that finding. Further, the evidence relied upon by the Crown of CCTV footage at 2.59am, where the accused was adjusting the chair to the poker machine closest to the storeroom, nine minutes after the robber had entered the storeroom, was characterised as a long bow the prosecution were trying to draw. It was not an inference the court could draw upon careful viewing of the footage.
Counsel submitted it was not for the accused to propose ultimate hypotheses as to who committed the robbery. Otherwise, the character of the accused was raised in a limited sense, and the court would have to take into account that the accused does not have any convictions for dishonesty, violence or firearms.
Further, the court would take into account the fact that the accused had the chance to flee the jurisdiction. It was an agreed fact that he departed Australia for Lebanon on 25 September 2018, and returned on 30 October 2018.
Finally, it was submitted that the Crown could not prove beyond reasonable doubt that the accused had anything to do with the robbery that occurred at the Belmore Hotel at about 4.30am on 2 May 2018. It was an entirely circumstantial case and with respect to those circumstances that would need to be proven beyond reasonable doubt, the Crown could not do so. When the court weighs up all the evidence, it was submitted that the inescapable conclusion was that the Crown had failed to prove its case beyond reasonable doubt.

[29]

Directions of law

Section 133 of the Criminal Procedure Act 1986 provides as follows: "133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference.
The first direction that I am to give myself concerns the circumstantial case brought by the Crown against the accused. The Crown contends that the case it brings against the accused is what is known as a "strands in the cable" circumstantial case. Counsel for the accused on the other hand has submitted that the case brought by the Crown includes two links in the chain of factual findings, namely: 1. That the robber was Omar Saadallah; and 2. That the toy gun sold by Mr Xie on 27 April 2018 was the gun used by the robber during the robbery.
The significance of these two facts, being intermediate facts in the reasoning process, is that they are facts which the Crown would have to prove beyond reasonable doubt for the Crown to satisfy the court that it had proved its circumstantial case against the accused.
In Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) said at 579: "…it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable, it may well be appropriate to tell the jury that the fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where … the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning …" At 585, his Honour went on to state: "Whether it is desirable for the trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful."
The Crown relied on Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74], where Simpson J (with whom Spigelman CJ and James J agreed) said: "Whether a fact on which the Crown relies as part of a circumstantial case is or is not 'indispensable' may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not 'indispensable'. Where the answer is in the negative, the fact is 'indispensable' and the jury should be directed accordingly."
Here, the Crown has submitted that the two facts identified by the accused are not indispensable to the Crown case and thus the appropriate direction to give myself should be a strands in the cable direction. The accused has submitted to the contrary, characterising each of the facts identified as being indispensable to the Crown case and without which there would be no Crown case capable of proof beyond reasonable doubt.
The Crown opened its case from the outset on the basis that the accused was involved in a joint criminal enterprise to commit the armed robbery with the armed robber, and that the identity of the armed robber was a friend of the accused, Omar Saadallah. The Crown opened its case on the basis that the robbery was planned, that the two men had travelled to Beaumont Hills on 27 April 2018 for the purpose of purchasing a Desert Eagle gel blaster replica handgun from Mr Xie, that that gun was the gun wielded by the robber five days later on 2 May 2018, and that the accused facilitated the armed robber's entry into the storeroom. Ultimately, the Crown case was that the robber, although disguised, was in fact Omar Saadallah.
I am not satisfied that it is an indispensable fact in the Crown case, that it was the accused who purchased the Desert Eagle pistol from Mr Xie. Indeed, given the description of the purchaser given by Mr Xie in his evidence, and his inability to identify the accused or Mr Saadallah in a photographic identification procedure, there may be some doubt as to whether it was in fact the accused who purchased the item from Mr Xie. However, I am satisfied that whether the item purchased was the gun used in the robbery is an indispensable fact in the Crown case, without which, or in the absence of evidence of that fact, there would not be a case to go to a jury.
I am also satisfied that the finding of fact as to whether the armed robber was Omar Saadallah, is also an indispensable fact in the Crown case, without which, or in the absence of evidence of the fact, there would be no case to go to a jury. I am therefore satisfied that both of the facts identified above are indispensable to the Crown case and are therefore required to be proved beyond reasonable doubt.
I therefore give myself the following direction.

[30]

Circumstantial evidence - link in the chain direction

The Crown asks me to draw an inference or conclusion of guilt beyond reasonable doubt from the facts which I have summarised.
It will not be open to me to come to a conclusion favourable to the Crown unless I were, first to find as a fact that: 1. the robber was Omar Saadallah; and 2. that the toy gun sold by Mr Dan Ran Xie on 27 April 2018 was the gun used by the robber during the robbery.
As these facts are essential to my coming to a conclusion in favour of the Crown - because the Crown must prove its case beyond reasonable doubt - then I would first have to be satisfied as to the existence of these two particular facts beyond reasonable doubt. These particular facts must be proved beyond reasonable doubt not because they alone prove the guilt of the accused but because they are both an essential step in the reasoning that the Crown asks me to follow in order to establish its case. Unless these facts are proved beyond reasonable doubt, the reasoning relied upon by the Crown must fail.
As I have already said, in relation to facts which are not essential to my process of reasoning, I would not consider those facts I find established by the evidence in isolation, but I would have regard to them as a whole.
If I were satisfied beyond reasonable doubt as to the existence of the essential facts, then I can take those facts together with all the other facts I find established and ask whether I can draw an inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown asks me to find is not available then the Crown's circumstantial case fails. But it is for me to determine what conclusion, if any, can reasonably be drawn from the established facts, and then consider whether there is any other reasonable explanation for those facts other than that of the accused's guilt. If there is no other explanation consistent with all the established facts considered together, then it would be open to me to convict the accused.
If, however, I am not satisfied beyond reasonable doubt as to the essential facts to which I have referred, I must return a verdict of not guilty. I should also find the accused not guilty if, looking at the established facts as a whole I cannot conclude beyond reasonable doubt that he is guilty. As I have said, this would also be the position if, at the end of my deliberations, I am of the view that some other reasonable explanation exists for those facts other than that the accused is guilty.

[37]

Factual findings

Unless otherwise stated, the following are my factual findings based on the whole of the evidence. 1. Omar Saadallah arrived in Sydney from Canada on a visitor's visa on 20 April 2018. He had applied for that visa in December 2017. 2. Mr Saadallah stayed with the accused and Ms Michails at their apartment in Campsie whilst he was in Sydney. 3. Mr Saadallah departed Sydney for Canada on 8 May 2018. 4. On 23 April 2018 Omar Saadallah hired a grey Mitsubishi motor vehicle registered number CP 13 KF from Hertz Australia. 5. I find that that vehicle was involved in a motor vehicle accident on 27 April 2018 when the accused and Omar Saadallah were en route to a meeting with Mr Xie at Beaumont Hills. 6. I am satisfied that the purpose of that meeting was to purchase a Desert Eagle gel blaster replica handgun. 7. I am satisfied that the accused was with Mr Saadallah at Beaumont Hills at the time that purchase was made. Given the description given in evidence by Mr Xie of the purchaser (namely a man approximately 20 years of age, clean shaven with fair skin) and his failure to identify either the accused or Omar Saadallah in a photographic identification procedure undertaken nine months later, I am unable to find that it was the accused who actually purchased the replica handgun. 8. I find that the accused was employed by Sun Security to work as a security guard at the Belmore Hotel and that he worked the night shifts there on Monday and Tuesday nights. I find that he worked on 23 and 24 April 2018, and again on the evenings of 30 April 2018 and 1 May 2018. 9. I find that on each of the first three of those shifts, Mr Saadallah visited the Belmore Hotel whilst the accused was working for a time, and played poker machines. I also find that he spoke to the accused on those occasions and to others in the hotel. 10. I find that during his shift which commenced at approximately 10pm on 1 May 2018, the accused, at 11.15pm that night, moved the retractable disabled toilet sign which was partially obscured by a banner which fell from ceiling to floor level. The purpose of the banner was to cover the location of the door to the hotel's storeroom where stock was stored. The storeroom was not accessible to members of the public, however, staff had access to it for the purpose of obtaining stock as required. 11. Following the accused moving the retractable sign, Mr Yildiz and Ms Kong were both were shown on CCTV entering and/or exiting the storeroom a number of times up to and including the early hours of the morning of 2 May 2018. 12. I am not satisfied and do not find, as the Crown contended, that the accused had moved the retractable sign so as to prop open the storeroom door. 13. I find that on 1 May 2018, Omar Saadallah entered the Belmore Hotel at approximately 8.20pm and left at 9.35pm. During that time, Mr Saadallah visited the disabled toilet in the gaming area and on at least one occasion, upon entering the disabled toilet, which was adjacent to the entry door to the storeroom, was observed to turn and look in the direction of the storeroom doorway, located behind the banner referred to above. 14. I find the accused, in the course of his duties as a security guard at Belmore Hotel, also visited the disabled toilet in the gaming area on numerous occasions during each of the shifts he worked. Some of those visits consisted of the accused opening the bathroom door and giving it a cursory glance inside. Others involved him entering the bathroom for a number of minutes, and on an occasion he too was shown on CCTV to turn around as he entered the bathroom and look in the direction of the storeroom door. 15. At 1.03am on 1 May 2018, when Omar Saadallah was playing a poker machine adjacent to and in the vicinity of the storeroom door (numbered 14 on Ex V), with the accused standing behind him, I am not satisfied as the Crown contended, that the accused was familiarising Mr Saadallah with the location of the storeroom door. 16. I also reject the Crown submission that the CCTV evidence established that the accused and Mr Saadallah were "casing the joint" in the days leading up to the robbery. This was mere conjecture on the part of the Crown. The accused, having been employed there as a security guard for a number of months, was well aware of the lay-out of the premises and no doubt the location of the CCTV cameras in the hotel. 17. Nor am I satisfied that at a time after the robber had secreted himself in the storeroom, the accused was distracting other staff while standing at the bar in the front of the hotel, as contended by the Crown. The CCTV footage comprised images of various areas of the Belmore Hotel, and in fact was a compilation of footage taken from numerous camera angles. In all cases they appeared to be cameras affixed to the ceiling and therefore showed footage taken from above the events that unfolded. The footage was not accompanied by audio, and the footage from one system (DVR1) was four minutes ahead of the other system (DVR2). Some caution therefore has to be exercised in finding facts, and in particular, from drawing inferences from events depicted in the CCTV compilations, Exs Q and R. A further example of this is the occasion during the accused's shift on 1 May 2018, when the accused is shown walking from the gaming bar into the manager's office, where he was apparently speaking with the manager. No inference could be drawn that there was anything sinister, or indeed against the hotel's staffing policies, in that activity. 18. What the CCTV footage does show clearly is a disguised man entering the hotel at approximately 2.35am on 2 May 2018. He was wearing a hooded jumper over his head, long grey pants with tan coloured shoes, and a black backpack on his back. Upon entering the hotel, he went straight to the unisex disabled toilet at the rear of the gaming area. Fifteen minutes later at approximately 2.50am, CCTV footage showed the same disguised man emerging from the disabled toilet and going straight to the entrance of the storeroom, located behind the banner referred to above. 19. At approximately 4.23am, during the process in which Ms Kong was collecting the poker machine takings, the accused entered the storeroom and a short time later emerged with the robber holding him at gunpoint. The robber then confronted the gaming attendant Ms Kong, demanding that she put the takings into his backpack and then confronted the manager Mr Yildiz, threatening him with the gun and then violently assaulting him with the gun. 20. I find that the robber then forced Mr Yildiz to open the cash exchange machines, before forcing Ms Kong, the accused and Mr Yildiz into the disabled toilet, threatening to shoot them before leaving the premises. 21. I find that the armed robber escaped with $96,315 and was seen leaving the premises onto Tobruk Avenue. 22. I am not satisfied beyond reasonable doubt that the gun used by the armed robber was the same gun sold by Mr Xie on 27 April 2018. That Desesrt Eagle replica handgun had a number of distinctive orange plastic components including the trigger, the undercarriage, a button on the trigger casing, together with a lever above the trigger and its barrel. The CCTV footage, which differentiated coloured items, did not depict any of those orange coloured components and all the witnesses described it as being a gun that was "all black". 23. Nor am I satisfied beyond reasonable doubt that the armed robber was Omar Saadallah. First, the armed robber was heavily disguised. He was wearing clothing that was entirely different from the clothing worn by Omar Saadallah when he visited the hotel premises earlier that evening. The armed robber also appeared to have long black coloured hair, tied in a ponytail at the back, whereas Mr Saadallah was either bald or had his head closely shaved whilst he was in Australia. I do not accept the Crown contention that the hair of the armed robber, as depicted in the CCTV footage, was obviously a wig. I am mindful of the caution with which a trier of fact must approach such identification evidence, in accordance with the High Court's decision in Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13. 24. The Crown also relied on evidence derived from mobile phone providers and summarised in Ex AJ, to demonstrate that Omar Saadallah was in Belmore, and therefore in the vicinity of the Belmore Hotel, just prior to the armed robber entering the hotel at 2.35am, and that he was also in Belmore, and therefore in the vicinity of the hotel, following the armed robbery which took place at 4.23am. What Ex AJ also demonstrates is that at 12.55am the accused sent Mr Saadallah a message saying, "can u pick me up tonight?" At 4.42am Saadallah sent the accused a message saying, "Are u done?", and another message at 4.50am saying, "i'm outside when you're done". At 5.28am, the accused sent Saadallah a message saying, "ill be late bro cz we got rubbed". Saadallah replied at 5.29am saying, "should i leave? or wait for you?" At 5.29am, Saadallah sent another message, "should I come back later?" This evidence does not support the Crown case. Rather, it provides some exculpatory evidence consistent with Omar Saadallah not being the armed robber and is therefore consistent with the accused's innocence. 1. I find that the accused did lie to the police in his record of interview about his relationship with Ms Michails ending after one month, and about Omar Saadallah staying with them for "six or seven days".

[38]

Findings based on the accused's banking records and expert evidence of Ms Tran

I am satisfied on the basis of the analyses by Ms Tran of the accused's banking records, that prior to the robbery on 2 May 2018, the accused had sources of income far in excess of his reported income to the Australian Taxation Office. The accused clearly was involved in gambling and sums deposited into his account on a weekly basis were capable of characterisation as wages, particularly those from the Flemington Markets.
The analyses of Ms Tran demonstrated that more money was paid into his various accounts in the four months leading up to the robbery, than was paid in during the five months following. I am also satisfied that the accused lent money to others from time to time and received repayment of those loans, both before and after the robbery. An example of that was the monies he loaned to Mr James Leatherbarrow, the former manager of the Belmore Hotel, whose employment was terminated following his admission that he had stolen funds from the owner of the hotel. There were other transactions in his banking records supporting such loans.
The evidence of Mr Brosnan corroborated the accused's statement that he won substantial amounts of money at times on the poker machines and on 5 May 2018, three days after the robbery, the accused won $6,201.
Having regard to the whole of the evidence relating to the financial analyses by Ms Tran, I am not satisfied that the Crown have established their contention that following the robbery, the accused was shown to have unexplained wealth. The evidence merely established that the source of funds paid into his accounts was unexplained. Nor does the evidence of payments made to his credit cards establish that those monies were paid from the proceeds of the robbery. The financial position of the accused following the robbery was demonstrated to be not very different from his financial position prior to the robbery, with the exception that his expenditure on gambling decreased following the robbery.
I am satisfied that it was the accused who provided Ms Michails the sum of $4,774 to transfer to Mr Saadallah's wife in Canada on 9 May 2018. Whilst the source of that money remains unexplained, the payment of itself does not advance the Crown's case other than to arouse suspicion. I am unable to make any finding in respect of the previous payment of $5,000 made by the accused's step-son to an unknown person in Canada, several days earlier.

[39]

The post-event exculpatory conduct of the accused

Constable Choi arrived at the Belmore Hotel a short time after the robbery at 4.38am. He spoke to the accused who told him that he had gone into the storeroom because he had noticed the storeroom door was partially ajar. When he had turned around to leave the storeroom, the armed robber had come up behind him and placed what he believed to be a gun at the back of his head, before taking his mobile phone and pushing him up the stairs and into the gaming room. Detective Braz also obtained an account from the accused when he arrived at the hotel at 5.25am. The accused gave him a similar account.
The accused was taken to the police station to make a statement on 2 May 2018. His statement became Ex S. In that statement the accused had told police that on Monday 30 April 2018 he was working at the Belmore Hotel when he was approached by two middle eastern looking men, one of whom had asked him whether the cameras in the hotel were linked to the police station. The accused told them they were. The accused then told police that he had seen another man of middle eastern appearance in the hotel on Tuesday 1 May 2018, who had black coloured long hair which was tied at the back into a ponytail which sat high at the back of his head. The man had lost a large amount of money before he left the hotel at 3am. The accused then gave an account of what occurred after the hotel had been closed and the poker machine attendant started clearing the machines. He described the armed robber as about "182cms tall, of a big build, in a dark black coloured thing covering his whole face. I couldn't see his eyes or his mouth at all. The man had long hair which was tied back in a low ponytail. The ponytail went down to the man's shoulders. The colour of the man's hair was black. The man was wearing black coloured clothing covering his upper body with no symbols on it. The man was wearing tracksuit pants, but I don't remember the colour. He was wearing yellow coloured boots like workmen's boots. I didn't see any symbols on the man's pants or shoes. The man was wearing red coloured gloves covering his whole hands. The man yelled, 'Don't look at me or I'll shoot'."
The accused told police that he was scared the man was going to shoot him, that he was holding a gun which was shiny and black.
The accused told police that when the manager Mr Yildiz was getting money from the exchange machine, he observed the robber getting impatient and he said to him, "Please don't hurt anyone. We will give you whatever you want." After the manager had given the robber money from the machine, the robber had pushed all three of them towards the back of the hotel and into the disabled toilet saying, "go inside, if anyone goes out I shoot".
The accused told police that they stayed in the disabled toilet for about two minutes, when Mr Yildiz told him to leave, however, he said to the manager, "we should stay in here more". When they left the disabled toilet the police were called.
In July 2018, police conducted a controlled operation involving Mr Yildiz. The accused met with Mr Yildiz, who attempted to blackmail him for a sum of money in return for Mr Yildiz not disclosing to police that he thought the accused and Omar Saadallah were responsible for the robbery. That meeting was lawfully recorded, however, the accused denied being involved.
On 12 July 2018, the accused participated in a video recorded walk-through with police at the Belmore Hotel, during which he made no admissions. The walk-through was consistent generally with what he had told police in his statement Ex S.
On 22 August 2018, the accused participated in an ERISP with the police as a suspect. In that interview the accused told police the two lies referred to above, namely, that he broke up with his girlfriend Ms Michails after one month or so, and secondly, that Omar Saadallah stayed with him at Ms Michails' apartment at Campsie for six or seven days.
In that interview, the accused told the police that he had been with Mr Saadallah when he had an accident in his hire car. He also gave police an explanation as to why Ms Kong may have told them that he had introduced Mr Saadallah to her as Ibrahim Droubi's cousin. He told police he usually kept checking the premises whilst Ms Kong was emptying the machines, and that he always checked the toilets "a lot of times". He also told police that he had had a conversation with Ms Kong about closing the machine doors.
When police put to him that Ms Kong had told them in her statement at [49], that she saw the accused pick up pencil cases from the stool in front of machines 27 and 28, and throw the two pencil cases to her to put them in the bag, the accused said: "I don't know why she's doing this, putting me like, I don't know. Okay, the chair, it was, the, the, the poker machine was like this. This chair and this chair. There, there was bags here and bags here. He told us both to get the money. So I picked up this one, she picked up this one. This is what happened."
The accused denied saying to the others in the bathroom that the robber might be in the office taking money, but agreed that he had told them, "wait, just wait, let, let us wait until he's gone". He also agreed that he had asked Ms Kong, "how much money do you think they took?"
The accused was also asked about a number of things Mr Yildiz had said, and gave police a lengthy recitation of what had occurred when Mr Yildiz had met with him and told him that he believed that he and Mr Saadallah had committed the robbery and that unless he paid him money, he would go to the police.
Moreover, the accused had already told Detective Senior Constable Lindsay about this occurring, and at no time prior to his ERISP interview did the police make the accused aware that it was the police who had run this meeting as a controlled operation.
When asked how he could afford to gamble and live when he had not worked since the robbery, the accused told the police that he was using money on his credit cards, but that he had also won money and people had repaid him loans he had lent.
When asked whether he had any information as to who may be responsible for the robbery at the Belmore Hotel, the accused said to police, "I swear I didn't do anything, I didn't know anything about it."
When asked where his friend Mr Saadallah was that night, the accused said that he was with a girl he described as "the Persian girl". He also told police that Mr Saadallah had called him when the police were at the hotel, wanting to come and pick him up, and that he was next to the hotel after the incident. That was borne out by the phone evidence in Ex AJ.
Further telling evidence exculpatory of the accused, was that the armed robber was shown on CCTV on the phone as he entered the hotel and subsequently as he entered and exited the disabled toilet inside the hotel. Detective Senior Constable Lindsay gave evidence that there was no CCR evidence linking the accused and Mr Saadallah making phone calls to each other at that time. The Crown contention that they could have been communicating by other formats such as WhatApp or Viber, could only be mere conjecture not based on any evidence.
Finally, the accused was entitled to rely on his good character limited to the extent that he had no criminal convictions for offences of dishonesty, violence or involving firearms.

[40]

Determination

I am not satisfied that the Crown has proved its case beyond reasonable doubt against the accused Khaled Itani on a number of bases. First, I'm not satisfied beyond reasonable doubt that the Crown has established that the replica handgun sold by Mr Xie on 27 April 2018 was the weapon used by the armed robber at the Belmore Hotel on 2 May 2018. Notwithstanding the suspicion that may be aroused as a result of the searches conducted on the accused's phone as to the availability of toy guns, and his location at Beaumont Hills when the transaction took place, even if it could be established that it was the accused who purchased the replica gun, the Crown has failed to establish that it was that gun that was used in the robbery.
Secondly, the Crown has failed to establish that the armed robber was in fact Omar Saadallah, for the reasons outlined above. I am not satisfied beyond reasonable doubt that the armed robber was Omar Saadallah, and these two facts were indispensable to the Crown case. On this basis, the Crown has failed to establish two critical links in the chain in its circumstantial case, which on that basis, must fail.
In any event, I am not satisfied that the Crown has established that the accused was involved in a joint criminal enterprise with Omar Saadallah to carry out the robbery at the Belmore Hotel. Joint criminal enterprise was explained by the High Court of Australia in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at [12] as follows: "12 The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission."
Here, the Crown has failed to establish that the accused and Omar Saadallah reached any understanding or arrangement amounting to an agreement between them to commit the robbery at Belmore Hotel. There is no direct evidence establishing such an agreement, and it cannot be inferred from all of the circumstances.
The Crown relied on the suspicions expressed by the manager Mr Yildiz, and the poker machine attendant Ms Kong, as to some of the conduct of the accused on the night in question. Cross-examination revealed that those suspicions were not expressed to the police at the time each witness made their statement immediately after the robbery, but were expressed in statements made months after the robbery. To add to that suspicion, the Crown also relied on the lies told by the accused to the police, not as consciousness of guilt, but going to the accused's credit. Also suspicious, according to the Crown case, were the financial transactions referred to above, including a payment of $5,000 into Ms Michails' account on 27 May 2018 which was subsequently expended on the accused's credit cards by three separate payments, a payment of $4,000 to Audi Australia in respect of the purchase by the accused's wife of an Audi vehicle following the robbery, and the two Western Union transfers referred to above. However, it is trite to say that suspicion, not even grave suspicion, can be a substitute for proof beyond reasonable doubt. Further, in R v Baden-Clay, supra, the High Court said at [46] and [47]: "46 The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v R, Gibbs, Stephen and Mason JJ said: 'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v R. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v R. see also Thomas v R.' 47 For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.' Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.' The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal."
Leaving aside the failure by the Crown to prove beyond reasonable doubt the two intermediate facts which are indispensable to the Crown's circumstantial case, having regard to the whole of the evidence here, the guilt of the accused is not the only rational conclusion that may be inferred. Rather, there is an inference consistent with the accused's innocence reasonably open on the whole of that evidence. That inference is available notwithstanding some of the post-event conduct of the accused, including his request to Detective Fretten upon seizure of his mobile phone, to have it back to delete photographs, and the provision of him on two occasions of the incorrect PIN number to allow the police access to the phone's contents. A further matter of suspicion arose by virtue of the accused telling Ms Michails to tell police that Saadallah had stayed with them for a matter of days, something he himself told the police.
The matters of suspicion raised by Mr Yildiz and Ms Kong do not advance the Crown case. Each was capable of innocent explanation or interpretation. For example, the evidence of Ms Kong concerning the conversation about leaving the poker machines open was explained away by the fact that the new system had been in place for one week, during which the accused had not been working at the hotel. Other matters which fell into the same category was the evidence of Mr Yildiz that the accused told the robber to "Take it easy", and his evidence that the accused stopped him from leaving the disabled toilet.`
Applying the direction that I have given myself in respect of the various exculpatory statements the accused made to the police, even if I did not accept those statements but think they might be true, then I am required to acquit the accused of the offence charged.
With respect to the lies told by the accused, they went to matters which were not of any great weight in the overall determination of the issues and cannot be used to prove the accused's guilt.
Thus, on the whole of the evidence, I am satisfied that there is a rational inference to be drawn consistent with the innocence of the accused. I therefore find that the Crown has failed to prove its case against the accused beyond reasonable doubt on each of the above bases.

R v Itani

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Judgment (42 paragraphs)

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Cases Cited (17)