R v Izzard

"On 12 June 2021, at Parramatta in the State of New South Wales, [Tyran Izzard] robbed Vicky Sharma of property, namely, a mobile phone and Bluetooth earbuds, the property of Vicky Sharma, whilst being armed with a dangerous weapon, namely, a firearm or imitation firearm."

3. Before turning to the second Count on the indictment, I note that there is an available statutory alternative to Count 1 (cf MFI-7), namely:

"On 12 June 2021, at Parramatta in the State of New South Wales, [Tyran Izzard] robbed Vicky Sharma of property, namely, a mobile phone and Bluetooth earbuds, the property of Vicky Sharma, whilst being armed with an offensive weapon."

4. The second of the Counts on the indictment was that:

"Between 12 June 2021 and 14 June 2021, at Sydney in the State of New South Wales, [Tyran Izzard] dealt with proceeds of crime, namely, $900.00 in Australian currency, knowing that it was the proceeds of crime and intending to conceal that it was the proceeds of crime."

5. The third Count on the indictment was a statutory alternative to the second Count and was that:

"Between 12 June 2021 and 14 June 2021, at Sydney in the State of New South Wales, [Tyran Izzard] dealt with proceeds of crime, namely, $900.00 in Australian currency, knowing that it was the proceeds of crime."

6. Upon his arraignment, Mr Izzard pleaded not guilty to the three Counts on the indictment.

7. In my deliberations, I must consider each Count separately. As the evidence and issues in the trial developed, it is convenient to consider Count 1 first.

8. In order for the Court to find Mr Izzard guilty of that Count, the Crown must prove, beyond reasonable doubt, each of the elements of that Count.

9. "Beyond reasonable doubt" are ordinary, everyday words and that is how I shall apply them.

10. It is not for Mr Izzard to prove his innocence, but for the Crown to prove his guilt to the high standard I have referred to.

11. Count 1 has six elements (see MFI-16, which I incorporate by reference).

12. As the evidence in the trial developed concerning Count 1, the only issue in dispute is whether the Crown has proved, beyond reasonable doubt, that it was the accused who, while armed with a dangerous weapon, robbed Mr Sharma. An alternative way of posing the only issue in dispute as the evidence in the trial developed is whether the Crown has excluded the reasonable possibility that it was Dean Zammit who committed the offence alleged in Count 1. For the avoidance of doubt, except for the issue of the identification of the wrongdoer, I am satisfied that the Crown has proved, beyond reasonable doubt, each element of Count 1.

13. I shall determine the sole issue of fact according to the evidence: that is, the oral testimony of witnesses; and the contents of exhibits.

14. The oral evidence in the trial consisted of the testimony of Mr Vicky Sharma, Mr Dean Zammit, and Sergeant Jeremy Walsh (the officer in charge).

15. In addition to the oral testimony of those witnesses, the Crown tendered a number of exhibits, including a statement of agreed facts (Exhibit B).

16. Mr Izzard did not give oral evidence in the trial. He exercised his right to silence in that regard. No adverse inference will be drawn against him because he did not give sworn evidence. His silence in the trial will not be used against him in any way. However, Mr Izzard did participate in an electronically recorded interview on 25 September 2023, which has been placed into evidence (Exhibit E; MFI-9). Suffice to say, Mr Izzard made no relevant admission in that interview.

17. The uncontested evidence in relation to Count 1 may be summarised as follows.

18. On the evening of 11 June 2021, Mr Sharma had been socialising with his wife and some friends in his home unit in Parramatta.

19. At about 1:15am on 12 June 2021, one of Mr Sharma's guests wished to return to her home. Another guest offered to drive her home. Mr Sharma and a third guest agreed to accompany the driver on that journey.

20. After the first mentioned guest had been dropped off at her home, the motor vehicle containing the driver, Mr Sharma and the other guest returned to Mr Sharma's unit.

21. Approximately 900 meters before the motor vehicle arrived at that unit, Mr Sharma asked to be let out of the motor vehicle so he could walk the balance of the journey to get some fresh air.

22. As Mr Sharma was walking along the street talking on his mobile phone to a friend in India, another motor vehicle pulled up and stopped on the other side of the street. This motor vehicle was owned by the late Lauren Smith. Ms Smith was in her motor vehicle, as was (at least) her then partner, Mr Dean Zammit.

23. A man then emerged from Ms Smith's vehicle and confronted Mr Sharma.

24. The man who confronted Mr Sharma (whom I shall refer to from now on as "the robber") was armed with a firearm.

25. The robber stood very close to Mr Sharma (about 6 to 7 inches away from him) and pointed the firearm at Mr Sharma's face. He demanded money.

26. When Mr Sharma said he did not have any money, the robber took Mr Sharma's mobile phone and earbuds.

27. Having done so, the robber ran back to Ms Smith's motor vehicle and got into the front passenger seat. The vehicle then took off at speed.

28. Mr Sharma's estimate of the time of the interchange between himself and the robber was very brief - approximately 30 seconds.

29. Mr Sharma said that the lighting in the area "was not great". He described the robber as about 5 foot 10 inches in height and of a medium build. I pause to observe that Mr Izzard is 6 foot 3 inches tall. Contrary to the submissions made by the Crown prosecutor, I regard the difference as significant to the sole issue in dispute. The robber only spoke eight words to Mr Sharma ("Give me the money," which was repeated once). Mr Sharma also described the robber as wearing a hoodie, and his face was covered with a cloth mask. No other physical description was provided by Mr Sharma. Mr Sharma said he did not pay much attention to the firearm. He could only describe it as being about 50cm long - a most unremarkable and minimalistic description.

30. At the time the robber took Mr Sharma's mobile phone, it was still open and operative; and one of the occupants of Ms Smith's motor vehicle was able to use that phone to swiftly access Mr Sharma's NAB account.

31. Between 1:49am and 2:04am on 12 June 2021, $2,300.00 was transferred by someone in Ms Smith's vehicle from Mr Sharma's account to Mr Zammit's CBA account. At some time on 12 June 2021, a cash withdrawal of $2,000.00 was made by Ms Smith from Mr Zammit's account.

32. Between 2:08am and 2:41am, $4,100.00 was transferred by someone in Ms Smith's vehicle from Mr Sharma's account to Ms Smith's CBA account. At some time on 12 June 2021, there were transfers and cash withdrawals by Ms Smith from her account - although there is no clear reconciliation in the bank records as to what happened to the majority of the money transferred from Mr Sharma's account to Ms Smith's account.

33. The Crown's case in relation to Count 1 is that there was another person in Ms Smith's motor vehicle and that that person was the accused - and that it was the accused who was the robber.

34. Furthermore, it is the Crown's case that Mr Zammit and Ms Smith were in some way coerced by the accused to transfer the funds from Mr Sharma's account to their respective accounts; and that those transfers were subsequently withdrawn in cash and paid to the accused. This was done, it was submitted, to put some traceable distance between Mr Izzard and the robbery. Amongst other things, that aspect of the Crown case theory was somewhat diminished, in my view, by the fact that, on 13 June 2021 at 2:38am, Ms Smith transferred $900.00 from her Streamline Basic account to Mr Izzard's St George bank account.

35. The Crown case largely relies on the evidence of Mr Zammit.

36. In considering Mr Zammit's evidence, I have to consider whether he gave an honest account and whether he gave an accurate account.

37. Moreover, I am not obliged to accept or reject the totality of Mr Zammit's evidence. If there is a good reason, I can accept parts and reject parts of his evidence.

38. Specifically, Mr Zammit's evidence included the following.

39. At the time Ms Smith's motor vehicle stopped opposite Mr Sharma, he [Mr Zammit] was the driver; Mr Izzard was seated in the front passenger seat; and Ms Smith was asleep in the back seat. Mr Zammit was well affected by ice and was not paying particular attention to what was going on around him. Notably, considering the description Mr Sharma gave of what the robber was wearing, Mr Zammit was wearing a balaclava - an item of clothing not dissimilar in appearance to a hoodie and face mask - even more so in poor lighting.

40. Mr Izzard got out of the motor vehicle and walked off.

41. When Mr Izzard returned after a very short period of time, he was holding an extra mobile phone. After leave was given to the Crown prosecutor to cross-examine Mr Zammit during his examination in chief, Mr Zammit also then said that, at the time he returned to the motor vehicle, Mr Izzard was carrying a gun which he described as a brown gun with a black barrel about 50 to 60cm in length and which he was confident was a sawn-off shotgun. Notably Mr Zammit said that he had not previously seen that firearm.

42. Notably, and relevantly to an assessment of Mr Zammit's reliability, Mr Zammit said he was "pretty sure" Mr Izzard did not have that gun "on him" when he initially got into Ms Smith's motor vehicle. It is also notable and relevant to an assessment of Mr Zammit's reliability that Mr Zammit first gave this description of the firearm to police on 13 June 2025 - and in circumstances where, when he made his alleged observations, he was severely affected and intoxicated with methylamphetamine. It is also notable that this engagement with police was not as a result of Mr Zammit initiating that contact as a result of remembering something or otherwise; rather, it was initiated by police and, to use the vernacular, came out of the blue insofar as Mr Zammit was concerned.

43. After returning to the motor vehicle, Mr Zammit said Mr Izzard said words to that effect that he had just robbed Mr Sharma and directed Mr Zammit to drive off at speed.

44. In the journey which immediately followed, Mr Zammit said Mr Izzard effectively coerced Ms Smith and himself to provide their bank account details, after which Mr Izzard made the various transfers I have already referred to into those two accounts; and, at a later time, cash withdrawals were made from those accounts by Ms Smith, which cash was then given to Mr Izzard.

45. The accused's position (through the cross examination of Mr Zammit) in relation to this evidence is that he was not in Ms Smith's motor vehicle on the occasion Mr Sharma was robbed - or at all that night; and that it was Mr Zammit who was the robber.

46. Whilst the Crown presses that the robber was Mr Izzard, it nevertheless acknowledges that there remains a possibility that Mr Zammit may have otherwise been criminally involved in the events giving rise to the criminal proceedings against Mr Izzard.

47. On either basis, I am of the opinion that Mr Zammit was a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the criminal proceedings against Mr Izzard in connection with the robbery of Mr Sharma on 12 June 2021. I, therefore, note that Mr Zammit's evidence may, for that reason, be unreliable, and I further note that I must exercise considerable caution in determining whether to accept his evidence and / or the weight to be given to it (cf Evidence Act 1995 (NSW), ss165(1)(d) and (2)).

48. In addition to the warning I have just given myself, I must also remind myself that, in any criminal trial where the Crown case relies solely or substantially upon the (direct) evidence of a single witness (which is the situation for Count 1), the relevant tribunal of fact must be satisfied, beyond reasonable doubt, that that witness's evidence is both honest and accurate.

49. In the course of her oral address, Ms Burkitt of Counsel (who appeared for Mr Izzard) submitted that there were a number of issues raised in Mr Zammit's evidence which adversely affected his reliability and credibility. Those submissions were helpfully reproduced in [4] to [22] of MFI-19 (as well, of course, as being recorded in the transcript).

50. I accept each and all of those submissions.

51. I also note the meaningful and significant discrepancy between Mr Sharma's evidence as to the height of the robber and the actual height of Mr Izzard.

52. Generally, Mr Sharma's evidence does not meaningfully advance or support Mr Zammit's evidence - in the sense that it is also consistent with Mr Zammit being the robber.

53. At this point I have considerable concern about the honesty and reliability of Mr Zammit's evidence. However, before making a final assessment of the reliability of Mr Zammit's evidence, I have to consider whether it is supported by other (circumstantial) evidence.

54. The Crown relied on a number of circumstantial considerations in this context.

55. The first and most significant (to my mind) is that, on 26 June 2021, Mr Izzard was in possession of a key to a motor vehicle in which he knew was to found (and which subsequently was found by police) a shortened shotgun with a double over-under barrel - and upon which Mr Izzard's DNA was (meaningfully) found on its trigger, trigger guard, eject mechanism and barrel.

56. The appearance of that shotgun is consistent with the limited (and unremarkable) description provided to police by Mr Sharma in June 2021; and the more detailed description provided to police by Mr Zammit in June 2025.

57. As to Mr Zammit's belated description of the firearm, I have a considerable sense of unease in accepting that he was able to recall - for the first time - a description of a firearm of which he had only a brief observation four years previously and whilst heavily intoxicated with methylamphetamine.

58. The second circumstantial consideration was that, on the Crown's submissions, Exhibit N showed Mr Izzard getting out of Ms Smith's motor vehicle from the front passenger side; and it showed Mr Izzard returning to that motor vehicle at a time after the robbery.

59. I do not accept that that exhibit establishes those asserted facts. All it proves is that, at the point in time captured on the CCTV, a person got out of and returned to the front passenger seat of Ms Smith's motor vehicle. It does not objectively exclude Ms Smith as being in the driver's seat; or Mr Zammit being the person getting out of and back into the motor vehicle.

60. The third circumstantial consideration was that, in the Crown's submissions, Exhibit O showed the accused sitting in the front passenger seat holding a mobile phone (inferentially being Mr Sharma's) as Mr Zammit drove the motor vehicle away from the scene of the robbery.

61. Again, I do not accept that that exhibit (or the CCTV footage from which it was extracted) identifies with any degree of reliability the identity of the driver, the front seat passenger, or the object apparently being held by that passenger.

62. The other various circumstantial matters relied upon by the Crown (T187ff) are, with respect, circular (in the sense that they are merely relying on assertions by Mr Zammit) and of no meaningful assistance in resolving the only issue in dispute in relation to Count 1.

63. Ultimately, although the first circumstantial matter to which I have referred does provide a level of support for Mr Zammit's evidence, I am not satisfied beyond reasonable doubt that Mr Zammit is an honest or reliable witness in relation to the only issue in dispute in relation to Count 1.

64. In the result, I am ultimately left with a reasonable doubt as to whether Mr Izzard was the robber in Count 1 - or, to put it another way, the Crown has not excluded the reasonable possibility that it was Mr Zammit who was the robber.

65. I, therefore, find Tyran Izzard not guilty of Count 1on the indictment - and because of the concessions fairly made by the Crown, I also find him not guilty of the statutory alternative to Count 1 as well as Counts 2 and 3.

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