R v Jaghbir - [2020] NSWSC 1383 - NSWSC 2020 case summary — Zoe

NSWNSWSC

R v Jaghbir

[2020] NSWSC 1383

Supreme Court of NSW|2020-09-11|Before: Davies J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-09-11

Before

Davies J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Background

The unit had been rented by the deceased's wife, Amanda Nabhan in November 2016. Both the deceased and his wife lived there until they separated in December 2016. The deceased's wife moved out.
In January 2017, Adam Dawson and Kate Stapley moved into unit 1 on the ground floor of the back block. They become associated with the deceased, and Mr Dawson would socialise with the deceased.
The deceased and the accused were friends, and were in regular contact. They had a number of mutual friends including Esam Elkodat (aka Sam Husseini) and Ahmad Ahmad (aka Rock).
On 9 April 2016 Safwan Charbaji was murdered and Abdullah El Masri was wounded. Mahmoud Ahmad was charged with Charbaji's murder. On 29 April 2016 Mahmoud's and Ahmad Ahmad's brother, Walid Ahmad, was shot dead in Bankstown. Since that time the Ahmad family had been under close police attention. Subsequently, on 25 October 2016, Hamad Assad was murdered. His murder was thought to be in retaliation for the murder of Walid Ahmad. The deceased and Ahmad Ahmad were suspects in Assad's murder. It was thought that all of these shootings may have been related, and all were being investigated by the Middle Eastern Organised Crime Squad.
By February 2017, the deceased was under police surveillance. A Firearms Protection Order (FPO) had been served on him. His phone calls were being monitored, and police regularly visited him at his unit. At about 2.30am on 4 February 2017, the deceased was shot at on Parramatta Road. The evidence did not disclose who was responsible for the shooting, nor did it suggest that the assailant(s) had been identified.
The accused lived with his parents in Lidcombe. He worked as an electrical trade assistant with MNI Electrospark, undertaking maintenance work for the Department of Housing. From 8 March 2017 until his arrest on 8 November 2017, his mobile phone was being intercepted. The evidence also suggests that he was under investigation before that time, probably since January or February 2017 and that he had a FPO placed on him. The accused, Emad Sleiman and Mustafa El-Hallak were all close associates.

[2]

The damage to the door to unit 6 and its replacement

At about 6:30am on 2 March 2017 the police attended to carry out a search of unit 6/8 Bennett St pursuant to the FPO. In the absence of the deceased being at the unit, access to the unit was obtained by forcing entry through the unit door. In the process the door and its lock were damaged such that the door could no longer be secured.
At about 2:15pm the real estate agent, who had become aware of the damage to the door that morning, met with the deceased and a person who was a locksmith and fire door expert, Todd Bidewell, from Bell Locksmiths. Mr Bidewell told the deceased he would repair the door pending the arrival of a new, custom-made fire door. However, the deceased said that he would rather arrange and pay for someone to install a new solid core door until the fire door was ready. The agent agreed to this. Mr Bidewell left a new Lockwood 001 dead latch in a red box with the deceased to use on the temporary, replacement door. Mr Bidewell was planning to re-use that lock on the new fire door when it was installed.
Shortly afterwards, the deceased telephoned an associate of his, Gerrard Gideon, and told him that the real estate agent was only going to patch the damaged door until the fire door was ready, but that he (the deceased) did not want to leave things like that. He asked Mr Gideon if he could "get 'Snake' to get me a whole new door and come put it on" (who 'Snake' was, was not identified, but it was not the accused). The deceased told Mr Gideon that he had a lock, and that he would text through the door measurements. In the course of the conversation the following exchange occurred: GG: Is the lock alright (sic)? KB: Um the lock? We have a lock. Do we have a lock? Ok, cool. Yeah I have a lock then yeah. GG: Just so I know if he needs to buy one or use the old one. KB: Yeah. Tell him to bring er one for the inside. GG Yeah, alright (sic). (Italicised sections spoken in Arabic and translated)
At about 5:40pm Mr Elkodat arrived at the deceased's unit. While he was there he contacted the accused and asked him to change a door for him at "Black". There was no evidence explaining the change of plan from having Mr Gideon organising 'Snake' to fix the door, to Mr Elkodat organising the accused to do the work. The accused said he could get a person called Dario there in an hour, and asked Mr Elkodat to send him the measurements. A little later the accused and the deceased spoke on the phone about the door measurements.
The accused subsequently called a work colleague and handyman, Dario Ratinon, and asked him to fix the door that night. The accused said he would buy a new door, but asked Mr Ratinon to secure the broken one that night.
At 7:45pm that evening Mr Ratinon arrived at the property. The deceased showed him the front door which had a hole in it next to the door handle and the lock. The deceased also called the accused and complained that Mr Ratinon did not have a new door. Mr Ratinon then spoke to the accused and told him that he (Mr Ratinon) had been unable to find a new door at Bunnings that evening but that he would secure the door with plywood sheets and put a new door in the unit the next day.
Mr Ratinon secured the door by screwing sheets of plywood over the damaged areas on the inside of the unit. He also installed a Lockwood dead latch lock that he said he found inside the unit on the floor. Mr Ratinon could not recall where the keys to this lock were or if the latch was still in its packet when he located it. Mr Ratinon then left.
At 8:57pm the accused told the deceased on the phone that he had a door which he would drop off in an hour and would arrange for someone to install it the next day. The accused then called another work colleague, Stuart Norton, and asked him to replace the deceased's door the next day.
That night the accused arrived at the unit complex at 10:46pm with the door. He and the deceased carried the door up in the lift. The CCTV footage shows the accused leaving the unit block at 11:07pm via the eastern/pool entry door.
At 11.25pm the accused sent a text message to Mr Norton saying: Unit 1 will let you in and u can use the lock that's there because Dario installed a new one and I have a spare key to let u in I will give it to u in the morning.
The following morning (3 March) at about 7.00am the accused gave a single key to the deceased's unit to Mr Norton, and $150 in cash to complete the job. Mr Norton and a work colleague, Kenny Habib, arrived at the unit complex. They were given access to the car park by Adam Dawson. They walked up to the ground floor but found they were unable to move the lift. Mr Dawson told Mr Norton that he would need a swipe pass to operate the lift. Mr Norton called the accused, who in turn called the deceased, and explained Mr Norton's problem. The deceased told the accused to tell Mr Norton to go around to the back - that there were stairs he could walk up. He said to tell him "to tell my neighbour to let him in through there" and to use the stairs. (The neighbour was either Mr Dawson or Ms Stapley in unit 1.) The accused told Mr Norton to use the stairs. The Crown designated this information as "the Building Access Information" and, for convenience, I will similarly refer to it. The Crown identifies this Building Access Information provided to the accused by the deceased as significant. I will return to it later in the judgment.
Mr Norton and Mr Habib then went around that way into the stairwell. They were able to open a steel grille door on one of the levels by reaching through the bars and pushing the handle down. On the second floor Mr Norton opened the door to unit 6 using the key the accused had given him.
They discovered that the replacement door the accused had obtained was not a solid core door. They rang and told the accused he had got the wrong door, and they left the unit at 8.22am without installing it. Mr Norton returned the unit key to the accused at work at about 4:00pm on that day.
At 8.46am the accused rang Emad Sleiman; the call lasted 85 seconds. At 2.47pm on that day the accused again called Mr Sleiman; this call lasted 29 seconds.
At 5:55pm CCTV footage shows the accused and Mr Ratinon arriving at the building complex via the southern side path. The deceased let them into the unit. They removed the front door that had been patched and took it out of the building. The CCTV shows that the dead latch installed the previous night by Mr Ratinon had been removed from the damaged front door.
Mr Ratinon said in his first statement that the lock he installed was one brought to the unit by the accused. He said the packet was open and there were two keys. In his second statement he said that he was not sure if he installed a new lock or used the same lock he had put on the door the night before.
Mr Ratinon saw the accused hand the deceased "a key on a keyring". He was not sure if there were two or more keys handed over, nor whether they were gold or silver, nor whether they were original keys or cut keys.
When removing the door, Mr Ratinon said that he removed the door-closer. A new door that the accused had brought with him was installed by Mr Ratinon. He said that he did not fit the door-closer to the new door. He left it in the unit. However, the photograph of the living room of unit 6 taken the day of the murder shows that the door-closer was fitted to the new door.
The accused and Mr Ratinon left the building complex by the southern path at 7.30pm. At 7.31pm the accused made a 25 second phone call to Mr Sleiman.
Prior to the deceased's murder, the real estate agent did not receive any keys for the new door installed by Mr Ratinon.
At 9.29pm on 3 March Mr Sleiman made a 20 second call to the accused.
On 5 March 2017 the accused and the deceased spoke on the phone during which the deceased asked the accused to obtain "one of those things a good one so I can put it on my door". From the conversation the deceased earlier had with Mr Gideon, and from a later conversation he had with the accused, I take this to be a reference to an additional lock to be fitted on the inside of the door, probably a bolt with a security chain. The accused said he would come around either that afternoon or the next day. No such lock was installed.

[3]

Attempted break in on 8 March 2017

At approximately 3:30am on 8 March 2017 four armed intruders were captured on footage from CCTV camera 2 at 8 Bennett Street. They entered the complex via the southern side path. They obtained access to the pool area. Unit 2 on the ground floor had been unoccupied since July 2016. Unit 2 was on the southern side of the back building. It had a balcony near the entry to the foyer from the pool area. It had a sliding door into one of the bedrooms of the unit from the balcony. The lock on that sliding door was inoperable and it was often left unlocked. One or more of the intruders gained access to the foyer area of the back building by entering through that balcony door and walking through unit 2 and then out into the foyer. The glass entry door was then opened from inside. While in the building complex they removed the handles from the adjacent steel grille door which gave access from the pool area to the foyer area and to the car park stairs. These handles were later found in the burnt-out car which was believed to be the getaway car.
At 2.52pm on 8 March 2017 Mr Sleiman rang the accused. They had a 42 second phone call. At 3.36pm the accused rang Mr Sleiman and they had a 34 second phone call. At 3.48pm the accused again rang Mr Sleiman and they had an 11 second phone call. At the same time, CCTV footage shows the accused alighting from a van and entering the building where Mr Sleiman lived in Park Road, Auburn. The same CCTV shows the accused leaving the building at 4.08pm and driving away in the van.
At 5.15pm on 8 March 2017 the accused rang the deceased, and asked him if he could come down to measure to "put the lock in". This appears to be a second lock which the deceased knew about and was, seemingly, requested by the deceased in the conversation he had with the accused on 5 March ([51] above]).
At 5.50pm the accused walked down the southern path and through the gate into the pool area. As he walked towards the glass front door of the back block the CCTV shows him looking towards the steel grille door. As he entered the foyer, the Crown submitted that he looked again in that direction. I shall return to this matter later in the judgment. The accused left the premises at 6.15pm. At 6.17pm Mr Elkodat called the accused. The accused told him he'd been at "Black's" to measure for a new lock he was going to get him, and put rubber around it.

[5]

The murder

At some time about midnight on 9/10 March 2017 Ms Hage went to bed and slept. At some point Ms Hage woke to find that the deceased was asleep on the lounge in the living room. She got him to come to bed with her. She said they both went to sleep. At 2:19am four armed assailants wearing disguises were captured on CCTV footage walking west along the southern side path of the complex. They entered the complex by the fire stairs door on the river side of the building.
At about 2:30am Ms Hage was awoken. The bedroom was dark, the deceased yelled "Hey" and he pushed Ms Hage's head, moving her away from him. Multiple shots were then fired at the deceased. Ms Hage said that the deceased said he was sorry. She said an Arabic prayer over him and he died. I will return later to discuss this account of the events.
At 02:30:33, Ms Hage rang Mustapha Dib. She said she was at Blackie's house, that he was dead, that someone came and shot him and she did not know what to do. He told her to call the ambulance.
At 02:31:33 Ms Hage dialled Triple-0. She said she needed an ambulance because someone had been gunned down. The operator asked if the person was breathing and she said "No, he's finished". When she was asked what actually happened, she said "I don't know I was just sleeping and I just heard screaming and then I looked and … it happened so quick." She said he was dead, and when the operator asked if she should try CPR on him she said again that he was dead.
At 02:39:36, Ms Hage rang Mr Elkodat. She told him that someone came and shot Blackie and he was dead.
At 02:44:18 Mr Elkodat rang Ms Hage and asked if there were any police there. She told Mr Elkodat that the deceased was dead, that they shot him dead.
At 02:46:11, Mr Elkodat again called Ms Hage. When she answered the phone she said to him that "they have broken his buzzer so I can't even buzz the ambulance".
At 02:52:06, Mr Elkodat rang Ms Hage again to tell her that they were trying to get in and asking her why wasn't it (presumably the buzzer) letting them in. She said she couldn't, it was not letting anyone buzz anyone in. He told her to walk out the back door to let them in.

[9]

The surveillance device recording - 25 July 2017

This was a long conversation between the accused, Mr El-Hallak and a person described as Male 1 (M1). The conversation covered a number of matters but a good deal of it concerned the investigation into the deceased's murder, the enquiries the police were making about the accused in that regard, as well as Mr Sleiman's shooting and the fact that Mr Sleiman thought the accused might be responsible for it.
At one point the accused got out of the vehicle to buy some tools that he had seen advertised. M1 and Mr El-Hallak continued talking about who Mr Sleiman thought was responsible for shooting him. It appears to be the case that both M1 and Mr El-Hallak thought that the accused was not involved in the shooting of Mr Sleiman, but M1 thought that Mr El-Hallak should talk to Mr Sleiman to persuade him that the accused was not involved. The conversation continued in this way: ME: Ah ha, because why, why is AJ gonna set Emad up when he could have set him up, when they, when they were gonna knock Blackie he could have got Blackie to knock Emad before Emad knocks Blackie. Correct? Simple. And they've walked together by themselves a million times. AJ could have turned around and pulled it on him. Do you know what I mean? M1: It's true. ME: Fuck that's (Arabic) cheap. (background conversation) M1: I don't know man just fix it up for this cunt, cause (Arabic) it, slack man. ME: Oh a hundred percent. Trust me cuz he's not gonna (Arabic) cut him unless he knows, he's not gonna put him on the phone say listen one, two, three. M1: Yeah because I know I know how this guy works that's why that's what you know what I know you're close with Emad that's why I'm telling you. ME: I'm, I'm close with AJ. M1: Because even if I was Emad I'd think that too. But because I know this guy off by heart I already know he's he's just a dumb cunt you know, like it's not him he's got nothing to do with it. ME: Like I know a hundred percent he's got nothing to do with it. And ever since it happened within a couple of days Emad went in so I've never had a chance to sit down and speak to him. M1: Why, why don't you go visit him? ME: I don't want to because I don't want it red hot on myself. They don't know I was with him. Because thing, if they knew I was with him they would have spoken to me about it by now. Correct? Correct? … ME: Yeah his wife goes. And like, and AJ knows I, I'm by him, by his side because AJ, Emad called me, when he called me last week, alright he goes shu you been seeing the other bloke, I knew who. I said yeah he still cuts his hair and that. He goes walla has he said anything I said no. And then I tapped AJ and said, do you want to speak to him, like that, he goes yeah I said you know what he just rocked up give me a sec. Then I put him on the phone. M1: Don't tell me he turned on him? ME: No he just told him, he goes, he starts what's been happening one, two, three. And shoo do you know any info or something. He goes bro he told him straight, he goes bro I have a feeling that it's you. You know what I mean? But he maybe knows something and maybe wants him to tell him you know what I mean? Maybe. M1: It's got nothing to do with this guy bro. ME: A hundred percent. (italicised words translated from Arabic)
The accused then returned to the vehicle and there was a brief discussion about the tools he bought and the price he paid.
The conversation then turned back to Mr Sleiman's view that the accused was involved with his shooting as follows: ME: He told him, he goes to him I still have a gut feeling it's you. Then him and AJ spoke. M1: But fix it up for him bro fix it up for him bro. AJ: Nah I fixed it up with him when I was speaking to him. M1: You're not gonna be able to fix nothing you fix it up Musti bro cause cause you're closer with him. ME: I'm gonna wait till he comes out but, I already know bro and it's true. And I've spoken to his nephew his nephew speaks to him. M1: Is that Shadi? ME: Yeah. And his nephew goes nah you're a hundred percent right. Cuz how many times has him and AJ been one on one he could have set him up a million times. Why would he wipe out the Ahmad's main, why would he wipe out the Ahmad's main shooter. Yeah? And then get someone else to shoot ah thing. It doesn't make sense. Do you get what I mean? He would have set it up and at the end of the day he would have made Blackie turn on them if he was on their side. Do you know what I mean? AJ: You think about it yeah I could have done it like that (clicking noise [fingers]), yeah. As they went in they would have came that way. ME: You know what I mean he could have told him listen they're coming in tonight one, two, three. Get strapped and blast them all. (emphasis added) The highlighted part of the conversation is what the Crown asserted to be an admission by the accused.
A little later in the conversation, the following is said: ME: But it all started from Pirate. [ Pirate, real name Wissam, is one of Mr Sleiman's nephews] Pirate has hated this cunt from day one. And I keep, I keep telling this cunt, I keep telling this cunt, be careful, I keep telling him, and I keep telling him and I kept telling him. You know what I mean? - mobile phone message tone - AJ: That Pirate has always been jealous for nothing. For nothing, nothing, nothing, nothing. Ever since I was hanging out with Emad, the guy (Arabic) went crazy world war seven happened. ME: And I kept telling this cunt... AJ: He told Emad watch out, this guy's a dirty cunt. And Emad told me, he goes why is this guy calling you dirty cunt? ME: (over talk) And Emad Emad pulled pulled me aside and told me one two three that's my phone. He goes to me, one two three. Do you reckon, AJ's. And I said bro straight the fuck out, I've known AJ, yeah, before I knew Wissam, before I knew thing? I said, the guy will lie to you every now and then, but to turn around and dog you, na bro I don't think. I go, I said to him, put yourself, put yourself, put yourself in AJ's position. You hung out with a crew, yeah? They, they ripped him 150 grand. He was fucken dirty. They keep promising, he'll get his money he'll get his money. He'll get his money he'll get his money. He didn't get his money, so he went to you. What's the, ahh that's my cousin ..[ind].. I said what would you do? He goes na, he goes fucken oath, I, ME: I'd turn against them. I said well there you go bro. Isn't he isn't 150k out of debt from the other (Arabic) dogs? Is he or isn't he? I don't know. Whatever it is... AJ: Two hundred and sixty five. M1: Two hundred and sixty five. ME: There you go, and isn't he still paying it until now? M1: I can't believe it man. ME: Do you know what I mean? So tell me where the dog act is in this. And I've explained that to Pirate, and I've explained that to Shedi [probably Shadi, Mr Sleiman's other nephew]. Tell me where the dog act is in it. AJ: I went and seen Shadi but, remember when I seen him... ME: (over talk) Yeah yeah. AJ: ...I seen him at the shop as well? ME: Where's the dog act in it? AJ: I told Wissam but, you what, you think I'm a dirty cunt? Tell me now, if you think I'm a dirty cunt? So you can spit in my face. I go, you know one thing, ok. ME: (over talk) You rip me, I rip you. Simple as that. AJ: I told him, plain and simple. He goes, yeah. I go me and your uncle, ah what's-it-called where have we been together? He goes everywhere. I go, even without the phone, come pick me up. I told him, come pick me up. I've gone and picked him up, and we've left. No one knows. No one knows, no phone call, nothing, ok. I've picked him up from alley ways before, yeah. And I knew about the alley way. He goes yeah. I go, couldn't I, couldn't I thing there and then? He goes yeah. I go so now put yourself in my fucken position. I go don't blame me and don't call me no dog. He goes no (Arabic) I swear on the Koran really I understand exactly where you're coming from he goes but you know at the heat of the moment... ME: And he's had his (Arabic) steel/gun. And he's had Emad's (Arabic) steel/gun with him. You know what I mean? He could've pulled the trigger on he could've pulled his own trigger on him. AJ: The guy gave me six seven of them bro, don't you think I couldn't have, ..[ind].. next to me. What's he gonna do ah, burn the gun? ME: You know what I mean? But, maybe Emad is saying it to him to test him. But to see what does he know? AJ: He goes I got information from inside saying that you were with them a couple of days before that. I go do you remember when Esam came to give me a thousand dollars? He goes yeah. I go remember I told you that he's coming to give me a thousand dollars? He goes ohh yeah that's true. When they came to see me, I used to message him and tell him listen they're coming to see me. So if anyone sees me, you know what I mean. He knows they're coming to see me. ME: And as soon as it happened, you know what, it even looks uglier, ..[ind].. because as soon as Blackie passed away, they stopped, him and Emad stopped contacting him. AJ: (over talk) No but I got he's (sic) BlackBerry ME: (over talk) But obviously they had to do it for a reason... AJ: (over talk) Yeah at the start yeah. ME: (over talk) … [ind]..don't think, anything… AJ: (over talk) I told him don't call me at all. Not even message me… ME: When you have someone who's been inside for 20 years (Arabic) he's still small minded. Do you know what I mean? (italicised words translated from Arabic)
I accept that the conversation between M1 and Mr El-Hallak when the accused was not present may only be used for context purposes. I do not use anything said by them when the accused was not present against the accused, nor draw any inference against him arising out of anything they said.
When the deceased was arrested on 8 November 2017 he was placed in a room at the police station with his brother Ali. The conversation between them was recorded. The following was said: AJ: (Arabic) If they put me inside there's one thing (Arabic) go to Fedi remember Fedi umm Sleiman the panel beater. Ali: Ah. AJ: And tell him let the screws take care of my brother. Ali: Yeah. AJ: OK Ali if you need his number call Mustafa, don't call him just go to the smash repairers ..[ind].. Ali: .. [ind].. [coughs] alright I know the guy. AJ: And tell him let the screws take care of my brother, you wanna protect your brother tell him the easiest way take care of my brother. (emphasis added; italicised words translated from Arabic) The highlighted section was said by the Crown to be a further admission by the accused.

[10]

Expert evidence

Witnesses may ordinarily only give evidence about what they observe, hear or perceive. However, if a person has specialised knowledge based on the person's training, study or experience they may give evidence of an opinion that is wholly or substantially based on that knowledge. Expert evidence is admitted to provide a jury or a judge as fact-finder with information and opinion which is within the expert witness's expertise but which is likely to be outside the experience and knowledge of the average layperson.
Mr Ross Squire, is an expert forensic locksmith who provided a report and gave oral evidence. His evidence may be summarised as follows.
The lock on the sliding balcony door to unit 2, through which the intruders gained access on 8 March, was inoperable. The result was that it was possible to access unit 2 from the balcony outside, and thereby gain access to the foyer area on the ground floor, and thereafter the carpark by a flight of stairs down.
There was no evidence that the lock to the door leading to the fire stairs on the river side of the back block had been tampered with. One of the keys returned by Ms Stapley to the estate agents some days after the murder was an original key to this lock. Ms Stapley had received a set of keys which had, at one time, been in the possession of the deceased. They had been given to her by Mr Elkodat who had earlier obtained them legitimately to clear out the deceased's belongings from unit 6.
The key to that lock was of a kind that could not be duplicated other than through Sydney Locksmiths. Businesses which, in the ordinary course, duplicate keys do not have the facility to duplicate such keys and are not permitted to do so. That is because the key blanks and profiles are not supplied to locksmiths who are not part of the registered system. Mr Squire accepted that the system was not perfect.
Mr Squire said that the entry door to the fire stairs would automatically close because of the door-closer mechanism. The only way the door would be found in an open or ajar position would be if someone had put something in place to hold it ajar.
The lock to the grille door located on level 1 and giving access to level 2 showed no signs of tampering or interference. The key to the door referred to in paragraph [89] also operated the lock on the grille door on level 1. Mr Squire found that on three or four separate occasions when he visited the premises that this grille door and other internal grille doors were either partly or fully ajar.
The lock installed on the door to unit 6 had not been tampered with. The lock was issued with two original keys. One of these was on the set of keys given by Ms Stapley to the estate agents, and the other had been found on a table near the door by Detective Scifleet. The key returned by Ms Stapley had markings indicating that it had been duplicated. There were no markings on the other single key to indicate that it had been duplicated.
The damaged handles recovered from the burnout car were the handles which had been removed from the steel grille door giving access to the foyer to units 1 and 2 from the pool area. They were examined by Mr Squire. He determined that, if an operational key had been made from the key mechanism in the external handle, it would not have fitted any of the other doors in the building.
Relevant to the question of how access might have been gained to the rear fire stairs and to level 2, was the time the assailants were in the rear building. This was calculated by the times shown on the CCTV. The assailants were captured immediately before they entered the building and immediately after they left it. The time was 3 minutes and 44 seconds. Whilst at the premises, Mr Squire's assistant traversed the route taken by the assailants using two different methods. The first method involved unlocking the two doors through which the assailants had to pass. The second method involved the grille door on level 1 being left open.
Mr Squire concluded that the assailants were either in possession of keys to both the rear entry door and the door to unit 6 or that the doors had been left open.

[11]

Accused's silence and decision not to give evidence

The accused did not give evidence himself, nor did he call any evidence. An accused person may always, by giving evidence or by calling other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or parts of the Crown's case, but there is no obligation to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. The accused is presumed to be innocent by me until I have been satisfied beyond reasonable doubt by the Crown that the accused is guilty.
Although the accused may give and call evidence in relation to the whole or any part of the Crown's case by way of explanation for it or by way of additional matters which the accused may wish to raise, the accused may equally elect to give no such explanation, nor call any evidence in that regard. The accused is entitled to say nothing and make the Crown prove his or her guilt.
The accused's silence in court and his election not to call any evidence cannot be used against him. His election not to offer an explanation of the whole or any part of the Crown's case by giving evidence or calling evidence constitutes no admission by him and no inference can be drawn from that fact. Nor can such an election be used by me to fill gaps in the evidence tendered by the Crown, and it may not be used in assessing whether the Crown has proved its case beyond reasonable doubt.
I cannot speculate about what might have been said in evidence if the accused had given evidence.
When asked to participate in an Electronically Recorded Interview with a Suspected Person (ERISP), the accused said that he was not prepared to answer any questions. That was his right, as he was advised by the police. I cannot use his exercise of that right against him, nor can I draw any inference from that decision not to answer questions. Whilst the accused answered a number of questions asked of him by the police in the ERISP, at a certain point in the interview he said he would not answer any more questions. That was also his right and I cannot use that against him, nor draw any inference against him for why at that point he ceased to answer questions.
The accused was also given a special caution. However, nothing adverse can result from his failure to mention anything in circumstances where he did not give evidence or rely on anything in his defence of the Crown's case.

[12]

The accused's accounts of events

It is necessary for me to give consideration to what the accused has said at various times, but in particular in his ERISP.
The relevant part of the ERISP is as follows: Q 212. OK. All right. Ah, as you know, Ahmed, ah, we're obviously investigating the murder of Kernel which happened at 2.30 in the morning on the 10th of March, 2017 and ah, basically um, ah. Kernel was inside his unit at that premises when a number of um, male persons ah, got into the unit and shot him while he was in his bed. Do you understand that? A. Yeah. Q213. Do you know anything about that? A. No. Q214. All right. Ah, and there was a um, female friend of his, ah, was present asleep at the time when the male persons got into the unit. Um, but she wasn't, ah, she wasn't shot at the time Kemel was shot. Do you understand that? A. Yeah, I understand that. Q215. Do you know who that person is? A. I'm not too sure. Q216. OK. Have you heard anything about that person? A. I don't know. I don't know. Q217. You haven't heard or you don't know? A. I don't know the person, I haven't heard, I don't know. Q218. OK. All right. A. I don't ask questions. It doesn't concern me, that's it. Q219. OK. A. If it's not in a part of my field of work, whatever, it doesn't bother me. Q220. [09:42] All right. Now, we obviously, after, after the murder, or prior to the murder are you aware that um, on the 2nd of March the police ah, did a search of um. Kernel's unit at Mortlake? A. I was aware later on, yes. Q221. OK. What, what, when did you become aware? A. I can't remember what time it was, it was later on in the afternoon. Q222. Yeah. A. The door had been broken and he asked me if I could fix it up. I told him I can't fix it but I can send you somebody to fix it. Q223. OK. And what happened then? A. And we sent somebody there who boarded up the door to ensure the door opens and closes, and then they returned the next day and replaced the door. Q224. OK. And who was that? A. That was Dario. Q225. Do you know Dario's surname? A. No, I don't. Q226. Uh-huh. So can you explain to me then what happened, who called you? A. Esam called me. Q227. Yeah. A. And then, ah, Barakat called me, and if I had my phone I would've showed you the transcript of the messages, him sending me the address and the size of the door. Q228. Yeah. A. And I told him that I will send somebody, and I did send somebody who attended and he spoke to them. Q229. OK. A. I have no more further comments about it. And I do understand that you guys have spoken to the people that replaced the door. Q230. How do you know we've spoken to people? A. Because I was informed by them. Q231. OK. Who, who told you that we'd spoken… A. They told me that you've spoken to… Q232. Who's they? A. Dario and Stuart. Q233. OK. A. Doesn't concern me, at the end of the day I did nothing wrong, there's a transcript there, and we'll go from there to no further questions about it. Q234. I don't understand. What, what do you mean there's no further questions? A. That's it. Q235. You don't want to say anything else? A. There's nothing else to say, that's it, like… Q236. Well, I'm not sure exactly what you mean. Are you, are you happy to answer more questions? A No. Q237 Sorry? A No. Q238 OK. All right. Um, well, before, before we finish, ah, before we finish up the interview I'll just give you an opportunity ah, is there anything further then that you wish to say about the matter? A No, I don't.
On 6 June 2017, in a phone call from the accused to Detective Senior Constable Tearne, the accused was complaining about the enquiries police were making of him, his family and friends. The following conversation ensued: AJ: yeah I do understand that you are trying to do your job, but you know what I mean, a friend of mine has passed away. I'm not really too happy about it ok, you guys have served me with an FPO, youse have come an raided my house several times, ok you have accused me of all these accusations of having firearms, I've never been charged before, and to top it off youse are going around to me friend's houses, people that I grew up with don't want to come past and say hello, thinking something's going to happen, you know what I mean, at the end of the day I'm not a bad kid. I go to work every day. Yeah, yeah I do understand that mate, yeah, mate if I knew anything I would have come clean when the coppers came, ok, but if I knew ok, I would have got some closure for his family, ok, the last time I seen him was a couple of days before he passed away, when the coppers kicked his door in, the last time I seen him was when we replaced his door, yeah, you know what I mean, you already spoken to my carpenters who installed the door, yeah they were there because I asked them to go there, the guy called me up and asked me can you please make safe to my door, because my door has been kicked in this morning, like a normal friend, and I do work in the maintenance field, I sent somebody there, ok, who made safe to the door, and the next person the next day installed the door, which you guys have questioned and spoken to, you know I do appreciate, if I knew or I could point some fingers ok, to get the mother fucker who had hurt some bodies family, I will be more than happy to assist, ok, you know what I mean. I'm not worried, or am I hiding from you guys, ok, but I do work, I don't have all the time in the world to sit down and do interviews and get raided and sit down for 6 hours in the gutter, yeah and I'm obliged if I know anything to let you guys know, but unfortunately, the coppers have come to my house and spoke to me, they have raided my house several times, you know I get harassed on the streets, I get harassed at home, and now my friends are getting harassed, if I knew the truth ok, if I knew the truth, ok we could have gotten to the bottom of it, but I don't know. BT: We can only approach people and ask questions, it's our job to find out what happened, at the moment we are investigating for the coroner. We're obliged to make these enquires, as you said, you were there changing the door, that's important. AJ: yeah but why was the door kicked in? BT: well AJ: The house was getting raided and nobody was home so the coppers kicked the door in, so if you guys didn't kick the door in, there would have been no door replacement, is that correct? But if no one kicked his door down, I wouldn't have been notified, ok my carpenter wouldn't have attended, ok and I only attended, said hello, the carpenter done his job and I have taken off. I don't need to write a statement, at the end of the day I am more than happy to speak to you but I am not obliged to write a statement. You know, because you know at the end of the day its like I'm a fucking criminal, you know it's not like I'm a fucking criminal. I've never been charged before, just because I work in the maintenance field and because I know some fucked up people doesn't make me a criminal, you know what I mean. I know I have done nothing wrong; it's just stupid because you are going around to my friends and you are scaring them, and now no one wants to come hang out with me, or come say hello, because they think they are going to get into trouble, well I told you mate, if I could share some light, ok, or I can show you guys some truth ok, I would have been more than happy to, ok if I knew ok, or knew of anything or knew of any disturbance or knew of any conflict OK, You spoke to the carpenter who installed it they installed it I didn't touch the lock. Because he asked me to. Kemel, when the door got kicked in. I've still got a message from him, sending me the measurements of the door, he sent me the measurements of the door, I forwarded them to the carpenter, which the carpenter has shown you the text messages, that you guys have taken photos of, because he has informed me of what happened....and he wasn't too happy about it, and he goes I don't want to do any more work with you or anything else ok because I don't want to get into any trouble, ok, just to go and make 50 bucks, yeah I'm concerned too, I don't want to go and work for anyone else either. I don't want to be stuck in the middle of a gun fight or anything like that mate, I've got a family to take care of, yeah that's fine, when I have time I will come in and speak to you guys, you know, I leave my house everyday nice and early and I come back late, I don't know what time I come back, you know, I don't like these people coming to my house and my neighbours don't even say hello to me anymore. They think I'm a criminal, my other neighbour thinks I'm a terrorist that many cops are coming to my house, they go what are you getting done for terrorism, I go I'm not a fucking terrorist mate, just because I'm an Arab you want to call me a terrorist, I'm going to start punching on with my neighbours because of you guys, fucking 30 or 40 coppers at a time running in my house, I do understand its serious mate, I'm not taking it as a joke, ok, at the end of the day the guy was my friend, ok, at the end of the day the guy was my friend and I'm not happy with what happened, nor and I happy for anybody to lose their life, ok, the guy is the one who contacted me, I.. he got in contact with me, and asked me please, my door 1, 2, 3. He sent me the measurements of his door, we organised his door, the door was purchased, the carpenter went there, I gave him the door, he supplied him a lock, they installed the lock and the door thank you very much, never heard from him again, sent me a message saying thank you very much, I'm more than happy to send you a screen shot of what he sent me, I'm more than happy to send you a screen shot of the message, … (emphasis added)
On 29 June 2017 the accused called Detective Tearne. The call appears partly to have been a complaint that another police officer had not contacted the accused as he had promised to do, and also to complain about the way the police were treating him and other people associated with him. During the course of the conversation, the accused told Detective Tearne that the deceased was his mate and that the deceased had called him and asked him to send a carpenter. After telling Detective Tearne that although he had physical problems he did not live off Centrelink but went to work every day. The conversation then continued: BT: Well what's that got to do about changing the lock? AJ: I didn't change the lock. I'm not a fucking locksmith to change the lock. I was on site when the door was getting changed yes. BT: Or sorry, the door. AJ: …the lock was already replaced. BT: The lock was already replaced? AJ: Dario installed the lock. BT: Well wouldn't you do the door and the lock at the same time? AJ: They went there, they put the lock on. At at the start, the first day. When they went there and they put the timbers on there because you've got the photos of the timbers from Stuarts phone when you took a photo. BT: Who put the, sorry, who put. Who did that bit? AJ: Dario attended at the start, ok. He put a timber on the door from each side until he went and got a door. Ok. BT: Yeah but AJ: He installed the lock, and he took off. Stuart went there to go and install the door, the door was the wrong door, it was a hollow door, it wasn't a solid door. It was the wrong measurement of the door. We ended up going, we ended up finding the doors at Moorebank Bunnings. Moorebank, Newbridge Road Bunnings, what-ever it is the Bunnings that's on Newbridge Road. Revesby, Moorebank whatever it is. The door was purchased from there, ok, we attended site. Dario dismantled the door. BT: Yeah AJ: Ok and put the new door on there and put the locks back on there. The same lock that was given to him the day one when I wasn't there. I wasn't on site when the door was first repaired, on the first day. When the door was smashed in half. That same lock was reused on the new door, it was a brand new lock. Dario installed it on the door. BT: Where did Dario get it from? AJ: Get what from? BT: Well the lock? AJ: From his van BT: So where would he have got that from then? AJ: I'm not too sure mate. I didn't supply the lock. I supplied Dario to go install the door, yes. This is what I don't understand... BT: ...What's that. AJ: I don't install locks, you can come search my whole entire van. I'm happy to sit on my roof until you get here to search my whole entire van until you find and tell me if you find a lock. You'll find washers, you'll find taps, you might find little bits and pieces yeah. You'll find a plane, I can shave a door. I can't install a lock. I can install a window lock, two little screws that pop in and out. A little latch. I can do bits and pieces.

[14]

(a) The Crown

In relation to the remaining elements to be proved, the Crown points to the following matters which it says, when taken together, lead to the only rational inference, namely that the accused is guilty of the offence: (i) The accused had in his possession a key to the unit door from 2-3 March 2017, seven days prior to the murder; (ii) On 3 March 2017 the accused had numerous telephone communications with Mr Sleiman proximate in time to the accused coming into possession of the unit door key; (iii) At about the time the accused came into possession of the unit door key he and Mr Sleiman were in the same geographical area; (iv) The accused took an active role in replacing the unit door; (v) Within the same minute the accused had completed his involvement in replacing the unit door and lock he telephoned Mr Sleiman; (vi) The accused and Mr Sleiman were in the same geographical location within two hours of the door replacement (the Hallak Barber, a business run by their mutual associate Mr El-Hallak); (vii) Of the two original keys to the front door of the deceased's unit, the expert locksmith, Mr Squire, opined that one of them had been duplicated; (viii) The accused had the opportunity to have that key duplicated or provided to another person for that purpose; (ix) The unknown assailants gained access to the unit with a key to the front door of the unit; (x) The deceased was shot on 4 February 2017, making it unlikely that he simply left his door unlocked on 10 March 2017; (xi) The deceased was not intoxicated on 10 March 2017, a matter of significance as to the likelihood that he simply left the door unlocked on that night; (xii) The unit complex had various security measures in place such as external door locks, electronic elevator activation, rendering access difficult without a key, a fob or a person to grant access; (xiii) Ms Stapley's evidence in relation to the side gate off the southern path which was that, although it should not have been open, for as long as they lived there it was always left open; (xiv) The murderers failed to gain access to the floor on which the deceased's unit was located on 8 March 2017 despite attempts to do so, and during that failed attempt removed the lock on the security grille door giving access to the foyer from the pool area; (xv) After the failed attempt to gain entry into the deceased's building, the accused attended Mr Sleiman's residence for about 20 minutes. The accused then telephoned the deceased to attend his premises, and later did so, paying particular attention to the security grille door without the lock; (xvi) It was the same or substantially the same group of assailants who attended on 8 March as on 10 March (the security grille door handle removed on 8 March was found in the burnt out getaway car on 10 March which had also been used on 8 March); (xvii) The accused became aware on 3 March 2017 of access to the back block by a rear set of fire stairs, overcoming the need to use the elevator; (xviii) Access to the deceased's floor in the unit block could be obtained from the glass, rear fire stairs door and one internal fire stairs grille door on the first floor; (xix) At the time of the murder, the rear fire stairs door was open quite a lot of the time, according to Mr Dawson; (xx) If locked, the fire stairs grille door could be opened by putting a hand through the metal slats and opening the handle from the other side; (xxi) Within half an hour of obtaining the building access information, the accused was in telephone contact with Mr Sleiman; (xxii) Upon the return of the assailants on 10 March 2017, they used the rear fire stairs door and traversed through the fire stairs grille door; (xxiii) On 10 March 2017 at 8:59pm, the accused was out the front of Mr Sleiman's residence with Mr Sleiman; (xxiv) The accused was in the company of Mr Sleiman, his nephew Shadi Darwiche and Mr El-Hallak for about 45 minutes at Mr Sleiman's residence on 12 March 2017; (xxv) Mr Sleiman was shot on 29 March 2017; (xxvi) The murder of the deceased was in the broad context of a series of numerous retribution style murders including Hamad Assad who was a friend of the accused. The deceased was implicated in Mr Assad's murder; (xxvii) The nature of the relationship between the accused and the deceased appeared to be based on the accused being the "maintenance man … people call me when things, when they've got problems with their house". They did not have a relationship where they would "hang out" together; (xxviii) The relationship between the accused and Mr Sleiman involved regular contact including visits by the accused to Mr Sleiman's home, and an apparent mutual business interests associated with at least one shipping container; (xxix) On 31 March 2017 Mr Sleiman's parole was revoked. Just after Mr Sleiman went back to gaol the accused said, "He's got $25,000 of mine I was meant to go get it. It's going to take time now to get it."; (xxx) The accused made an admission captured in a surveillance device whereby he acknowledged his involvement in setting up the murder of the deceased; (xxxi) There was a form of rift between Mr Sleiman and Mr Elkodat, which resulted in the accused being required to notify Mr Sleiman if Mr Elkodat or his associates were coming to see the accused; (xxxii) The accused was owed $265,000 by Gerard Gideon, an associate of the deceased, about which the accused was so "fucken' dirty" that it justified "turning against them", and he sought the assistance of Mr Sleiman; (xxxiii) In the surveillance device recording of 25 July 2017 the accused was very keen to ensure that Mr Sleiman did not contact him by telephone following the murder of the deceased; (xxxiv) The accused made various utterances that downplayed the level of his involvement with the door replacement, and he failed to mention the possession of the key; (xxxv) After the accused's arrest, he was recorded on a surveillance device saying to his brother that his brother should go to Fadi Sleiman and tell him "let the screws take care of my brother, you wanna protect your brother tell him the easiest way take care of my brother". The implication here is said to be to ensure that the accused protected Emad Sleiman by not divulging damaging information and in that way the accused was to be afforded care in custody by the prison officers.
The Crown submitted that there were other minor matters in the evidence which should also be added into the mix. These included what were said to be lies by the accused to a number of persons which amounted to a consciousness of guilt. The lies were said to be constituted by silence, in that the accused omitted to disclose the full extent of his involvement particularly his possession of a key to the unit at an important time. It was submitted, alternatively, that these lies by omission could be used as other circumstances which, when considered with the above matters, lead to a conclusion of guilt as the only rational inference.
The Crown submitted that there are no intermediate facts (in the sense discussed in Shepherd v The Queen (1991) 170 CLR 573) which the Crown needed to prove beyond reasonable doubt. That is to say, there is no intermediate conclusion of fact that is a necessary link in the chain of reasoning.
The Crown drew attention to what was said in Plomp v the Queen (1963) 110 CLR 234, recently referenced in The Queen v Baden-Clay (2016) 258 CLR 308 at [69], concerning testing human experience and credulity, and submitted that a consideration of the various basic facts, particularly the accused's access to the key to the unit, what was said in the admission and the further admission, the accused's being owed $25,000 by Mr Sleiman, the timing of the contacts with Mr Sleiman, and the deceased's suspected involvement in the shooting of the accused's friend Hamad Assad, would lead to the only rational inference that the accused had provided assistance to the assailants knowing that they intended to kill the deceased.
The Crown submitted that while motive may more readily allow the Court to conclude that the accused was guilty of the offence, it was not an essential element to prove. The Crown, nevertheless, pointed to two matters. The first was the debt which he was owed by Mr Gideon of $265,000 and in respect of which, having gone to Mr Sleiman about it, the accused was prepared to turn against "them", being Mr Gideon, the deceased and their crew. Secondly, the Crown submitted that it should be inferred that the $25,000 owed to the accused by Mr Sleiman related to the killing of the deceased and the accused's role in it.

[15]

(b) The accused

Mr James QC submitted that there are three intermediate facts which need to be proved beyond reasonable doubt. The first was that Mr Sleiman arranged or participated in the killing. Mr James submitted that the Crown cannot establish that Mr Sleiman was so involved beyond reasonable doubt, and that no such inference can be drawn from the evidence, which was simply that there was contact between them at various times, particularly when the evidence showed that they had other business relations. The reliance on what was said to be the admission was a bootstraps argument and assumed Mr Sleiman was involved.
The second intermediate fact was the motive of the accused. Thirdly, he submitted that the provision of the key or imparting of the Building Access Information would have to be established beyond reasonable doubt. The provision of the key or the imparting of the Building Access Information cannot be considered to be intermediate facts. They are the assistance said to be provided. In that way, they are ultimate facts or conclusions, and I accept that they must be found beyond reasonable doubt.
Mr James referred me to the principle that was established in Briginshaw v Briginshaw (1938) 60 CLR 336 in relation to the proof needed relative to the importance of the conclusion to be established. He submitted that such an approach was called for when determining the inferences that could be drawn from the basic facts put forward by the Crown. He also drew my attention to principles involved in drawing inferences, and distinguishing them from conjecture, from such cases as R v Merritt [1999] NSWCCA 29; Burrell v R [2009] NSWCCA 163; and Davidson v R [2009] NSWCCA 150.
Mr James submitted that the Crown had put forward a number of scenarios which were not consistent with one another. These included a motive that involved being paid $25,000 by Mr Sleiman for providing the key; a motive involving an attempt to recover $265,000 owed by Mr Gideon; or a motive involving reprisal against the group to which the deceased and Gideon belonged because the amount had not been paid. Mr James submitted that the motive in the present case was entirely conjectural.
Mr James submitted that nothing could be inferred from allegiances and affections amongst the various people identified in the trial, nor from viewing the various killings as reprisals or retribution.
Mr James submitted that, since the four intruders on 8 March did attempt to enter through the rear door of the back block, no connection with the accused could be inferred. This was because it was the Crown case that the accused had imparted the specialised knowledge about the existence of the rear door, and yet that knowledge was not availed of on 8 March. In that way, for all that is known, the intruders may simply have been staking the place out with no connection to the accused. Mr James submitted that, in any event, the accused had no specialised knowledge because a large number of people knew the back fire stairs were an access point. Mr James submitted that the Court could not be satisfied beyond reasonable doubt that he provided the Building Access Information because he did not have that information sufficiently to the exclusion of others. In that way it could not be said that he was the one who passed it on.
Mr James submitted that Ms Hage's evidence was unreliable. He submitted that she had given different accounts at different times of what occurred in the unit that morning, and that it could not be assumed from her evidence that the deceased did not in fact answer the door, thinking they were police, and let the assailants in. Mr James pointed, in that regard, to the scattering of the gun cartridges and to the fact that the deceased was shot in the back and the back of the legs.
Mr James submitted that the removal of the handles from the pool area steel grille door did not in any way assist the later entry into the building by the assailants on 10 March. In that way there was nothing sinister about the fact that the accused may have looked towards the broken lock area on that door.
Mr James submitted that, as far as the key was concerned, there was no evidence that the deceased restricted the use of the keys to the unit. He submitted that the deceased himself may have duplicated the key at least because it was necessary for the agent to have a key. Mr James submitted that the Crown concentrated only on the fact that the accused had a key, and did not demonstrate that nobody else could have obtained a duplicate key, nobody else could have arranged the duplication of the key, and that it had to have some sinister involvement. Mr James said that the evidence of Mr Ratinon about the key left a lot of confusion as to which key was in whose hands at what point of time.
Mr James submitted that all of the people involved (Sleiman, Elkodat, and the deceased) were or would have expected to be under surveillance. He submitted that after the murder the accused would also have expected to be observed. He submitted that nothing in the accused's conduct in that intensive surveillance and monitoring period yielded anything by way of an unequivocal admission or fact inculpating him.
Mr James submitted that the Crown's submissions amounted to an assertion that, unless a rational alternative hypothesis is propounded and established, then the Crown case became easier to accept. Mr James submitted that this amounted to a reversal of the onus of proof. Mr James submitted that the Crown must exclude that anyone other than the accused could have done the things said to amount to the provision of assistance.

[17]

General principles

Where the case made by the Crown is a circumstantial case, it is not, of course, appropriate, to assess each of the strands in the cable individually to reach a final view about the accused's guilt, whether that final view be that the matter is proved beyond reasonable doubt or not. Rather, the various circumstances are to be assessed together and, after doing so, it must be asked whether there is an inference consistent with innocence that is reasonably open on the evidence.
In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court said: [46] The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, 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 The King. 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 The Queen; see also Thomas v The Queen." [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" (emphasis added). 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" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. [48] Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."

[18]

Issues to be determined

As I have indicated, there was little challenge to the factual matters already set out. Detective Maree, the officer in charge, was not cross-examined at all except to obtain clarification of Exhibit A (CCTV photographs) and Exhibit B (an aerial photograph of 8 Bennett St).
Mr James objected to evidence relating to Mr Sleiman's shooting and evidence of any alleged connection between Mr Sleiman and the accused. However, he accepted that the evidence should be admitted so that its relevance could be determined in the final judgment. Mr James also accepted that in a circumstantial case, relevance may not be able to be assessed until the whole of the evidence was considered. Further, he accepted, in relation to objections made concerning the statement of Detective Sergeant Joseph Maree of 12 January 2018 that to the extent that the material was put forward as context evidence, it was admissible.
Although Mr Elkodat was cross-examined, Mr James said that nothing he said was of importance on which I could rely.
When I consider the evidence given by the witnesses I take into account not only the evidence they gave but how they gave their evidence. I observe their body language. I consider whether they may have been nervous for being in unfamiliar and very formal surroundings. I first consider whether they are truthful witnesses and, if they are, whether they are reliable. I take into account that the events in question took place up to three years ago. I have regard to consistencies and inconsistencies in the evidence they gave in the witness box, and to whether their evidence was consistent with out of court statements or other objective material. I may accept part of a witness's evidence and reject other parts.
I was not asked by either counsel to give a warning to myself about the reliability of any witness on any ground in s 165 of the Evidence Act 1995 (NSW) or otherwise. Nor do I consider that I should do so. It was not suggested in particular that either Mr Elkodat or Ms Hage might reasonably be supposed to be criminally concerned in the events giving rise to the proceedings. Mr James submitted, however, that I would find that Ms Hage was an unreliable witness.
Mr Elkodat was not a very satisfactory witness. He claimed an inability to remember almost anything that was not presented to him incontrovertibly such as telephone intercepts involving him. His inability to remember making contact with the accused about changing the deceased's door until the telephone call he made to the deceased was played was untruthful. So too was his evidence concerning his knowledge of various people and their friendships or relationships with each other.
Ultimately, his evidence was most relevant in relation to what happened to the keys to the unit after the murder, although as the agreed facts made clear, there was little dispute about that matter. Having listened to the various intercepted phone calls to which he was a party after the murder, I accept his evidence that he did not have anything to do with the deceased's murder, that he did not have keys to the deceased's unit before the murder, and that he did not get a duplicate key made to the deceased's unit.

[19]

How did the assailants enter the unit?

The only witness whose evidence was challenged was Ms Hage, and that challenge appeared to relate only to her evidence that suggested that the assailants were not let into the unit by the deceased. The basis for the challenge came from a contemporaneous note made by Constable Connan Di Benedetto after Ms Hage had left the unit when the police arrived. Ms Hage was telling Constable Hogg what had happened. From the time Ms Hage said that she and the deceased arrived home after having purchased food at "Java HQ" (otherwise referred to as "Java Lava"), Constable Di Benedetto's notes read: They returned home. Around 2am two or more people have knocked on the door stated 'New South Wales Police". POIs have gone into unit. Vic[tim] has pushed girlfriend out of the way. Vic has been shot roughly 15 times."
Constable Di Benedetto was called as a witness by the Crown. Copies of relevant pages in his notebook were not in the Crown Brief. The lawyers acting for the accused requested a copy of those pages. The Crown sought to call Constable Di Benedetto in order to cross-examine him pursuant to s 38 of the Evidence Act because of what appears in the extract above. A limited objection was made on the basis that Ms Hage had not been asked if she had said what was there recorded. The evidence was clearly unfavourable to the Crown, and I considered that Ms Hage had been asked on multiple occasions what had occurred. Leave was granted to the Crown to cross-examine Constable Di Benedetto. Mr James also cross-examined him. The issue was a significant one because it went to the reliability of Ms Hage's evidence generally, which in turn concerned how the assailants entered the unit.
Constable Di Benedetto quite properly accepted that when he made his notes he was not writing a verbatim account of what was said. He said the conversation between Constable Hogg and Ms Hage was fast and "very all over the place", that he was doing the best he could, and that he may have made an assumption or interpreted what was said to have used the word "knocked". He is not to be criticised for the notes he made which, apart from the words "knocked on the door", were unchallenged. That is not to say, however, that he accurately recorded Ms Hage in that regard.
Ms Hage's first statement was made later on the morning of the killing of the deceased. In that statement she gave a brief summary of what had occurred earlier that day and into the evening. She referred to the fact that at about 10:30pm the buzzer in the unit went off. She assumed it was the police because she said they always checked up on the deceased. When he returned from speaking to them she asked if everything was all right, and he said, "Yeah, don't ask questions".
She said that she went to bed at midnight and when she woke up a little later she noticed that the deceased was not with her. She found him asleep on the couch. She woke him and got him to come to bed with her. She said they both went to sleep. She then said this: I don't know what it was but all I can remember is something being said or me thinking about "police". I heard Kemel yell out "Hey". I looked around but the room was pitch black. I could not see anything. I felt him push my head really hard. I didn't fall out of the bed but it moved me away from him. I then heard multiple gun shots. It was really loud, it smelled like fire in the room.
She then said that she knew at that point that she was going to die. About a minute later she moved over to Kemel who was coughing, and he said, "I'm sorry." She then said an Arabic prayer twice with him before he stopped breathing. What thereafter occurred has been detailed earlier.
When Ms Hage gave evidence on the first occasion before the Crime Commission on 12 July 2017 she said this: Like there and then that was me and we were sleeping. And then all I remember was hearing, … I remember seeing a bigger guy and another one. But the bigger guy, they were dressed like police, and then he goes, um, "New South Wales Police" like "New South Wales Police". And then, um, I just assumed that they're getting raided or something do you know? Like I hadn't been in that situation so I just didn't know. And then he's like "Hey" and he pushes me and he's like that [DEMONSTRATES WITH BOTH HANDS]. And then I, I turned my, I put my head down because I had heard gunshots.
She said that she put her head down and she didn't know what to do, "Like do I call the police - but they're the police. In my head they're the police that just killed him so I didn't know what to do". She said she jumped up and was telling him to do an Islamic prayer. Then he choked and died.
She was asked if the men were dressed like police and she said: Like it was enough to see like nothing was shown and they had like a bullet proof vest. She said one of them was a bigger guy who had a deep voice. She didn't feel like he was an Australian. He was covered in a balaclava.
At the Basha enquiry held on 9 June 2020, she relevantly gave this evidence in response to questions by Mr James: Q. You went back to watching TV, you went to bed and, when you woke up, you saw Kemel wasn't there, so you got him up and brought him back to bed? A. Yep. Q. You then remember some loud noise and the word, "Police", correct? A. Yeah. Q. What did you actually hear at that point in time? A. We were sleeping and then we woke up to someone screaming I think it was "New South Wales Police", and then I just heard heaps of gunshots and then I remember just putting my head down and then just waiting, like - I just waited for them to kill me. Q. So you heard somebody shouting, "Police"? A. From what I remember I'm pretty sure, yeah. Q. Do you recall Mr Barakat making a phone call at about that time? A. No, but I'm pretty sure the police have his phone if he did use one. Q. I'm sorry, I can't hear you? A. The police have his phone - any phone calls he made, the police would know. Q. Do you recall whether, at about that time, there was a knocking on the door? A. When he passed away? When they came --- Q. Before he passed away, at the time at which someone is yelling, "Police"? A. No, because we had been woken up to them on his door, killing him. Q. Say that again? A. We had been woken up - like, I was sleeping here and he was sleeping there and the door was there (indicated), the bedroom door. They were on the door. Q. That's on the bedroom door? A. On the bedroom door. Q. Had there been any knocking on the outside A. No, we had heard no noises, nothing. I just woke up to the people, saying I think it was "New South Wales Police", and then just doing what they came in for. Q. Now at that point, did he yell out anything? A. He was like in shock and he goes, "Hey" and then --- Q. No, I'm just asking did he yell out anything? A. Yeah. Q. What did he yell out? A. I think, "Hey". Q. "Hey"? A. Yeah. Q. When was the last time you read over your statement? A. I read over it today but. Q. I see. And then was there a point at time at which you read Mr Barakat something from the Koran? A. That was when he passed away. Q. And what was it you read to him from the Koran? A. When you pass away, when someone passes away, there is like a specific thing you say. Q. Were you reciting or reading? A. I don't remember, actually. Q. Did you have a book with you? A. No. Q. So you were reciting from your memory? A. Yeah. Q. You say you heard multiple gunshots and you smelt the smell like fire? A. Yeah. Q. At that stage, were you lying alongside Mr Barakat? A. Yeah. Q. And did he push you away? A. He was like, when he came in he was like, "Hey" (indicated), and I was right next to him. Q. You made a gesture then when you said "hey", in which you used both hands pushing out to either side, correct? A. Yeah. The door is here, he's there and I'm there (indicated). When they came in he's like, "Hey", and then I remember, like it was like he pushed me, but it wasn't like - I don't know. Q. Did he say that he was sorry? A. Yeah, I think so. Q. And how many shots were fired? A. Heaps. Q. Lots and lots? A. From what I remember, I remember at the time it was happening I thought that they were just shooting at each other or - I didn't know what was going on, but it was, from my memory, it was a lot. Q. During the time the shots were fired, were you moving? A. No, I just put my head down. Q. Did you put your head under the pillow or something like that? A. Oh, I seriously can't remember. Q. Now you told him not to be sorry, is that right? A. I don't remember. Q. And you told him to repeat after you, and that's when you recited the passage from the Koran? A. I think so.
At the trial she gave the following evidence in answer to questions by Mr James: Q. Was there an occasion when people came to the door of the unit, knocked on the door and shouted "police, police"? A. Not that I remember, no. Q. Was that what happened the night Mr Barakat was killed? A. No. Q. Did they knock on the door? A. No. Q. Did they break in shouting "police, police"? A. I don't know how they got in but they got in. When they got in and when they got to his room from what I remember, I think it was "police" or something "New South Wales police" or something along the lines they screamed it. Q. You got a look at them? A. Sorry? Q. You got a look at them? A. By the time I had realised, I went into shock. I don't remember actually what happened after that so yeah. Q. Did you see that these were persons wearing police uniforms? A. I don't remember. Q. Or police equipment, I should say? A. I don't know. I can't remember. I just - I don't know. Q. Did they have markings on what they were wearing that said New South Wales police? A. I was not paying attention to that. The last thing I remember, I don't know, it was just --- (witness indicated) Q. At various times prior to today, you have been asked questions about these events, haven't you? A. Over the three years, almost four yes. Q. Sorry? A. It has been almost four years, yes. Q. And from time to time you have had different recollections of what happened, isn't that right? A. Which is normal, yes. … Q. That night you were in the bedroom with Mr Barakat when these people came in, right? A. Correct. Q. You can't remember what they looked like? A. I didn't see. Q. You didn't see? A. No. Q. Was it dark? A. I honestly can't remember it was. I was not something I wanted to keep in memory like. Q. Did Mr Barakat push you out of the way of these people? A. We were laying down. I don't know. I can't remember. Q. Was there a point of time in which you took Mr Barakat's head in your arms and recited or read a prayer for the dying from the Quran? A. I don't remember. Q. Was there a point in time in which he spoke to you after they shot him and before he died? A. I don't remember. … Q. Did you wake up? A. No, I woke up to them on the door. Q. On the door to the bedroom? A. Yes. Q. So you had no idea of how they got in? A. No. Q. And you say you didn't let them in? A. No, I was asleep. Q. So do you say you have a positive recollection you did not let them in? A. Yes, because I remember being woken up to them there. Q. Whatever your memory problems might have been concerning the activities of that night, you're sure it wasn't you that let them in? A. I'm positive. Obviously I'm going to always remember the fact that I was woken up to someone being killed for the rest of my life. … Q. Now, as you sit in the witness box now, is it fair to say you say you can't remember really very much about what happened that night? A. I don't remember, no. Q. That you can't remember really how it came about Blackie was murdered? A. What do you mean? Q. Well, you just - you can't remember how these people got in, whether they shouted "police" or not? A. I don't know how they got in. Q. And you don't know whether they shouted "police" or not? A. It was something they shouted. Obviously I'm not going to remember what they said. All I remember was them shooting, and I'm not worrying about nothing but my life at the moment, in that time. Q. You remember lots of shots? A. I think so, yeah. Q. You can't say that they hadn't been buzzed up to the unit? A. By us, no. We were sleeping. Q. How would you know whether Blackie was asleep? A. Because he was asleep too. We were both woken up. Q. You were both woken up at the same time? A. I don't know if it was at the same time, but when they had said it, we were just - I'm pretty sure if he got up to buzz someone in or whatever, I would have woken up to it as well. Q. But you don't recall any buzzer? A. No, at all. … Q. Was it the case that you thought it was the police, you let them in and they shot Mr Barakat? A. Definitely not. … Q. Either somebody let them in or the door was defective, yes. A. No one let them in. I know that for a fact. Q. Is that because you were asleep? A. Yes, we both were asleep. We did not let them in. Q. And the door was not defective? A. As in not working? Q. Yes. A. I'm not sure about that. I don't remember. Q. And the door was not shut or locked? A. It would have been shut. I don't know if it was locked.
In general terms, I thought Ms Hage was an honest witness. It is difficult to imagine the horror of what she experienced that night. She lay next to the deceased as he was repeatedly shot. She thought she was about to be killed too. Her distress was evident from a number of the phone calls she made immediately after the shooting, and from descriptions of how she looked by a number of police officers who first attended the scene. Ms Hage said that she suffers from severe PTSD, that she had bad memory loss from a lot of things that had happened. She said that she had subsequently been harassed, bullied and assaulted.
I accept that parts of Ms Hage's evidence concerning who she called after the shooting, who she spoke to after the shooting, her evidence about the phones she took from the unit and her evidence about "the boys being angry" had aspects of unreliability to it.
However, her evidence about what happened in the unit when the assailants were present and shooting the deceased was very largely consistent in all of her accounts. I accept her evidence entirely that she did not let the assailants into the unit. I accept that she did not say that anyone knocked on the door. When Constable Di Benedetto recorded that statement he did not record what Ms Hage said. Constable Hogg recorded in her notebook, Sleeping 12 midnight - woke to someone yelling 'NSW police' - stormed room. There is no mention of knocking. Although Mr James submitted that it could not be assumed from her evidence that the deceased did not in fact answer the door thinking they were police and letting them in, at no stage did he suggest to Ms Hage that the deceased had in fact done so, nor did he ask her if the deceased did so.
In my opinion, all of the evidence is inconsistent with the deceased having let the assailants into the unit. It is inconsistent with Ms Hage's consistent evidence that when she and the deceased woke the men were "on the door" of the bedroom. It is inconsistent with the fact that all but one of the shell casings were found in the bedroom, and the one remaining case was found in the hallway to the bedroom and not the living room. It is inconsistent with the position the deceased was found in, and, in my opinion, the fact that some of the bullets appear to have entered the deceased's body from the rear does not provide any support for the notion that he was shot when fleeing from the assailants in the living room after he let them in.
Although it is not necessary to do so, as it is not an intermediate fact, I find beyond reasonable doubt that neither Ms Hage nor the deceased let the assailants into the unit that night.
It follows from that finding that the assailants gained access to the unit without any other person's assistance at the time of entry. The evidence makes clear that they did not enter the unit from the balconies of the unit. The CCTV footage makes clear that they entered and exited the building by the rear fire stairs door. The period of time spent within the building made it impossible for them to have entered the flat otherwise than through the front door to the unit. The evidence from the police was that entry had not been forced, for example, in the way it was when the police entered on 2 March to enforce the FPO. Further, the evidence from Mr Squire was that the lock had not been manipulated in any way to be opened by means other than a key.
There is only one other possibility in relation to entry, and that is that the door was not locked at the time Ms Hage and the deceased retired for the night. Two things compel a conclusion that the door was not left unlocked. First, there was a door-closer on the door, and the lock was such that the door-closer on the door would mean that the door would shut and lock without the door needing to be closed manually by someone. The lock was such that if the door was closed and the lock engaged it could only be opened by a key from the outside.
Mr Squire said that it was possible for the door to be in the closed position but for the lock not to be engaged to prevent access from the outside as a result of the handle being put in the "held back position". In such circumstances the lever on the lock would no longer be in the horizontal position (where the door was locked) but would be in a vertical position. As Mr Squire described it: So to the casual observer just walking past the door, say from the kitchen, lounge area, whatever, if they glanced at the door, they would simply see straightaway that it was in an unlocked condition. Further, one or other of Ms Hage and the deceased would need to have placed the handle in that position.
The second matter was Ms Hage's evidence that the deceased was, as she described it, "anal" about security. That evidence is borne out, not only by the desperation demonstrated by the deceased to have a new solid core door immediately after the police broke the door down, but from the fact that the deceased had been shot at in the month before the door had been broken down by the police. His concern about security is also emphasised by the fact that he wanted a second lock put on the inside of the door, and asked the deceased to organise that on 5 March 2017 and, for that matter, in his call to Mr Gideon on 2 March to bring "one for the inside".
It will be recalled that the deceased first fell asleep on the lounge in the lounge room on the night of 9/10 March 2017. He was not, as the post-mortem toxicology showed, intoxicated by drugs or alcohol. In the light of the aforementioned matters, I find that it is inconceivable that the door lever would have been left in the vertical position by the deceased on that night, and he remained in the lounge room after Ms Hage retired to bed.
Although it is not necessary to do so, as it is not an intermediate fact, I find beyond reasonable doubt that the assailants entered the unit by unlocking the front door lock with a key which they had in their possession.

[20]

The key to the unit

It is next necessary to consider how the assailants would have possession of a key which operated the front door lock of the unit door.
The agreed facts say at paragraph 67: A photo of the lock Ratinon put on the door the night before on 2 March [Exhibit Z] appears the same as the lock that police seized from the door on 11 March. Quite apart from that statement, there is no evidence that there was any change to the lock that Mr Ratinon installed on 3 March after that date and prior to the murder. The evidence establishes that the door and lock installed by Mr Ratinon when the accused and the deceased were present on 3 March was satisfactory for the deceased's needs apart from his desire to have an additional lock which he spoke to the accused about on 5 March. That was the second lock which the accused rang the deceased about on 8 March (at [54] above). I am entirely satisfied that the lock Mr Ratinon installed on 3 March was the same lock on the door on 10 March when the deceased was killed.
Although there was some inconsistency between the two statements of Mr Ratinon (see at [36] and [45] above), the better view is that the lock Mr Ratinon installed on 2 March on the broken door, was the Lockwood lock that Mr Bidewell had taken to the unit on the afternoon of 2 March, and was the lock Mr Ratinon removed from the broken door and installed on the new door on 3 March.
Although Detective Sergeant Maree gave evidence that the lock in the red box, that was the subject of the photo annexed to Mr Bidewell's statement (Exhibit V), was not the lock on the door at the time that the deceased was murdered, that evidence was inconsistent with the evidence of Detective Mark Scifleet who was the first police officer to be let into the unit by Ms Hage after the shooting. Detective Scifleet said in his statement: I noticed the door appeared to be freshly painted and it had recently had a new Lockwood lock fitted and I noticed an empty Lockwood grand deadlock door lock packet on the floor behind the door. I also saw a single Lockwood brand door key on the side table just inside the door of the apartment, I picked up the key and placed it in the door lock on the outside of the front door and I tested it and it opened the front door of the apartment. I saw that the lock mechanism appeared to work and there did not appear to be any signs of forced entry to the front door of the apartment. (emphasis added)
Photographs 42 and 43 in Exhibit E show where that Lockwood box was behind the door as Detective Scifleet describes. Detective Maree's evidence was a conclusion he drew, and in doing so he failed to have regard to Detective Scifleet's evidence which I accept. That evidence assists to resolve Mr Ratinon's doubts about which lock he used on 3 March, and leads me to conclude that Mr Ratinon used the same lock on 3 March as he had on 2 March, being the lock provided by Mr Bidewell.
The next issue to be determined is the matter of the duplication of the key.
The evidence of Mr Squire was that the single key referred to by Detective Scifleet and placed in the door lock by him was not the key that had been duplicated. The key that had been duplicated was the key on the set of keys, which itself was on a key ring, that Mr Ratinon saw the accused hand to the deceased on the night of 3 March.
If the lock installed on the door on the night of 3 March was the lock brought to the unit by Mr Bidewell, the only persons who had possession of the key on the key ring were the accused, Mr Norton, Mr Ratinon and the deceased from the night of 3 March. The evidence of the key's continuity is this. After Mr Ratinon installed the lock on the damaged door on 2 March he either took one of the keys and gave it to the accused or he left both keys with the deceased. If the latter was the position, the deceased must have given the key to the accused later that night when the accused arrived with what was intended to be the new door. Certainly, by 11:25pm that night the accused claimed to have a key because his text message to Mr Norton said so ([39] above).
The key was given to Mr Norton who, with Mr Habib, attended at the premises on the morning of 3 March. When they were not able to complete the job Mr Norton returned the key to the accused at about 4pm on 3 March. The accused then had possession of the key until he returned it to the deceased after Mr Ratinon had put the new door on that night.
If, on the other hand, contrary to Detective Scifleet's evidence, and contrary to what the accused told Detective Tearne on 29 June 2017 ([106] above), the lock brought by Mr Bidewell was not used at least from the night of 3 March 2017, it is important to see what Mr Ratinon said in that regard. In paragraph 16 of his first statement of 31 May 2017 he said: I installed a dead latch. It was a Lockwood brand. AJ brought the lock. The packet was already opened. I saw there were two keys in the packet. I am sure there were two keys in the packet. He said in paragraph 17 that he was not sure where AJ got the lock from but AJ had told him that he got the door from Bunnings. It was that evidence about which Mr Ratinon expressed doubt in his second statement.
If the accused brought the lock and the packet was opened when Mr Ratinon took the lock from the packet to install it, then the accused was the only person who had access to the relevant key prior to it being given to the deceased.
Mr Norton said that he did not make a copy of the key, he did not give the key to anybody else including Mr Habib. There was no evidence or suggestion that Mr Ratinon copied the key if he had it in his possession at any time on 2 March 2017.
The evidence therefore demonstrates that the only persons who could have duplicated the key were the accused or the deceased, whichever lock was used. It was faintly suggested by Mr James that the deceased might have duplicated the key to give a key to the agent. The unchallenged evidence was, however, that the agent did not have a copy of the key to the lock installed on 3 March prior to the murder.
In my opinion there is no realistic possibility that the deceased had the key duplicated. He was separated from his wife who had moved out of the unit. There was nothing in the evidence after the murder to suggest that the wife had a copy of the key to provide to Mr Elkodat for him to clear out the unit until after the police removed and replaced the lock from 11 March. I have already accepted the evidence of Mr Elkodat that he did not have a key to the unit before he obtained a key to the new lock after the murder. Ms Hage never had a key to the flat, and she said that she was only present at the flat when the deceased was present. I accept Ms Hage's evidence that the deceased was "anal" about security. I do not accept that the deceased would have duplicated the key to provide it to any other person or for any purpose.

[21]

The recorded conversation of 25 July 2017

It is next necessary to look at what the Crown has identified as an admission. This was the statement of the accused made in the surveillance device recording of 25 July 2017 where he said: You think about it yeah I could have done it like that (clicking noise [fingers]), yeah. As they went in they would have came that way.
The Crown submission is that, taken in the context of what had been discussed between M1 and Mr El-Hallak both at the time the accused was in the van and when he was not, that statement by the accused should lead to the conclusion that the accused was in some way involved in the deceased's murder. Mr James submitted that this discussion was no more than people, and the accused in particular, speculating as to possibilities after the event. What was said, Mr James submitted, does not yield inferences in such a compelling fashion so that it can be said to be inference rather than conjecture. Mr James submitted that it did not amount to a confession of guilt, implicitly nor expressly, and he submitted that much of the expression in the conversation leading up to this point was vague in nature.
Mr James did not submit that a finding that this statement was an admission was an intermediate fact that had to be proved beyond reasonable doubt. He did submit, however, that it was an intermediate fact, needing to be proved beyond reasonable doubt, that Mr Sleiman arranged or participated in the killing.
I can see no basis upon which a finding that Mr Sleiman arranged or participated in the killing needs to be proved beyond reasonable doubt. It cannot be seen as a link in the chain, because a finding, for example, that the accused provided a key to the perpetrators is not the same as a finding that the accused provided a key to Mr Sleiman or for his purposes. What is of greater significance, although itself not an intermediate fact, is that the accused believed that Mr Sleiman was involved in the killing and believed, it would seem, that he was one of the persons who actually entered the unit on the night of 9/10 March 2017.
It is necessary at this point to consider what the Crown describes as the further admission made by the accused to his brother Ali after his arrest on 8 November 2017. This was the statement of the accused: And tell him [Fedi Sleiman] let the screws take care of my brother, you wanna protect your brother tell him the easiest way take care of my brother.
That statement indicates clearly that the accused believed that he had information of sufficient seriousness concerning Mr Sleiman that an approach by the accused's brother to Mr Sleiman's brother, suggesting some sort of a trade-off, was likely to be accepted. Given that Mr Sleiman was a convicted murderer, any information that the accused had about him which would have persuaded him to do a favour of the type suggested for the accused must have been serious information for such a trade-off (or threat if it be seen that way) to be successful.
When taken in conjunction with the earlier conversation recorded on the surveillance device on 25 July 2017, especially that portion set out at [82] above, the accused must have believed that Mr Sleiman was involved in the killing of the deceased. The accused clearly accepted and adopted what Mr El-Hallak said immediately before he (the accused) made the statement asserted to be the admission.
In that way, I do not accept the submission of Mr James that the accused (and the other two men for that matter) was simply speculating as to possibilities after the event, and that the statement of the accused identified as the admission was no more than that. The thrust of the conversation which went on for a lengthy period of time was that a problem had emerged between Mr Sleiman and the accused, perhaps as a result of what Mr Sleiman's nephew Wissam had been saying about the accused, which caused Mr Sleiman to think that the accused was involved in the attempt on his life on 29 March 2017.
The point being made by Mr El-Hallak twice in the conversation, once when the accused was not present, and once when he was, was that the accused had plenty of opportunity at various times to have killed Mr Sleiman if he had wanted to do so. Mr El-Hallak said (when the accused was not present): And they've walked together by themselves a million times. AJ could have turned around and pulled it on him. Do you know what I mean?
After the accused returns to the car, Mr El-Hallak says: And I've spoken to his nephew [Shadi] … and his nephew goes nah you're a hundred per cent right. Cuz how many times has him and AJ been one on one he could've set him up a million times.
Later in the conversation the accused himself said: I told him [Wissam], plain and simple. He goes, yeah. I go me and your uncle, are what's it called where have we been together? He goes everywhere. I go, even without the phone, come pick me up. I told him, come pick me up. I've gone and picked him up, and we've left. No one knows. No one knows, no phone call, nothing, ok. I've picked him up from alleyways before, yeah. And I knew about the alleyway.
It was in that context that Mr El-Hallak said of the accused that: He would've set it up and at the end of the day he would have made Blackie turn on them if he was on their side. To that comment the accused replied: You think about it yeah I could've done it like that … as they went in they would've came that way.
The only rational inference from the discussion and the accused's comment in particular is that he believed that Mr Sleiman was one of the assailants. Although it is not necessary to do so, because it is not an intermediate fact, I find beyond reasonable doubt that the accused believed Mr Sleiman was involved in the killing of the deceased.
Further, when Mr El-Hallek said that the accused "would've set it up" if he had intended that Mr Sleiman was to be shot, the accused responded, "I could've done it like that". A strong inference is available that the accused was accepting that he had some involvement in setting up the entry of the assailants into the deceased's unit, and in that sense it is an admission by him of that involvement.
The contact both by telephone and in person between the accused and Mr Sleiman in the period from 3 March up to and after the murder strengthens the likelihood that, in the accused's mind, Mr Sleiman was involved in the deceased's murder. So too does the fact that the accused did not want Mr Sleiman contacting him at all after the murder.
The fact that the accused was claiming to be owed $25,000 by Mr Sleiman a short time after the murder of the deceased is another factor to be taken into account. I accept that the evidence discloses that the accused and Mr Sleiman appeared to have other business or financial arrangements. However, where the reason for the accused being owed $25,000 by Mr Sleiman is not, and is not submitted to be except as a motive, an intermediate fact, it is an available inference and more than conjecture, that the debt arose from the accused's involvement in the deceased's killing.
Before leaving evidence about Mr Sleiman, I should say something about Mr James' objection concerning the relevance of Mr Sleiman's shooting, and evidence of the connection between the accused and Mr Sleiman. Mr Sleiman's shooting is not, on the evidence, directly relevant to the murder of the deceased. However, as can be seen from the recorded conversation of 25 July 2017, his shooting is relevant for understanding the accused's statement that I have found to be an admission. That statement, as I have found, makes clear that the accused believed that Mr Sleiman was involved in the deceased's murder. That belief makes relevant the evidence of the contact between the accused and Mr Sleiman from 3 March 2017.

[22]

Lies

The Crown sought to characterise a number of statements made by the accused to various persons as lies amounting to a consciousness of guilt. The lies were said to have been demonstrated by the failure of the accused to mention specific matters or to give a full account of his involvement in relation to the change of door at the deceased's premises.
A lie is to say something untrue, knowing at the time of making the statement that it is untrue. I may only take a lie into account as evidence of the accused's guilt if I find two further things. When I say I can take it into account as evidence of the accused's guilt, the lie cannot prove the accused's guilt on its own. Rather, it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt.
The other two things are these. First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence that the Crown alleges that the accused committed. It must relate to some significant circumstance or event connected with the alleged offence. Secondly, I must find that the reason the accused told the lie is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial.
If the lie is not used as evidence of a consciousness of guilt, I can take the lie into account in assessing the accused's credibility. In other words, when I consider what he told the police in his ERISP and what he otherwise told Detective Tearne, I can have regard to any lie that I find the accused has told.
I cannot be satisfied that the failure of the accused to disclose the totality of his involvement in the change of door and lock amounts to a lie. The omission to mention that at one stage the accused had possession of the key to the lock is not such that I can conclude it is a lie. Certainly, the accused has been less than frank in what he has mentioned to the police both in the ERISP and to Detective Tearne. When the accused knew that the assailants obtained entry to the unit other than by a forced entry (and that is clear from an early part of the recorded conversation on 25 July 2017) a reasonable person in the accused's position would know that he was being less than frank in not disclosing to the police that he had possession of the key at least from late in the evening on 2 March until he gave it to Mr Norton the following morning, and then again from the time that Mr Norton returned it to him and when the accused gave it to the deceased on the night of 3 March 2017. That is reinforced by his statement to Detective Tearne on 6 June 2017 that he didn't touch the lock.
I do not think that much can be made of what the accused said to persons who were not police in the matter. He was under no obligation to tell such people the full story of his involvement. What was said was generally a brief summary by him of why the police were investigating him. I have not taken those matters into account when assessing his credibility.
Mr James submitted that in none of the telephone calls or recordings made by surveillance devices does the accused make any admission of involvement in the crime. In that regard, I have already dealt with Mr James' submissions regarding the admission in the conversation of 25 July 2017. Mr James accepted that the accused believed that he was under observation from the time of the murder. That is borne out by complaints that the accused has made to various associates as well as to Detective Tearne. It is further borne out by the accused's reference in the recorded conversation on 25 July 2017 of having scoured his vehicle to see if there was a "tracker" on it. In those circumstances, it is scarcely surprising that what has been said by him at least in telephone conversations does not contain any admission of wrongdoing. It is also of some significance that the statement by him constituting an admission in the conversation of 25 July 2017 was made when the accused thought that he was not under surveillance in the van.
Although I consider that the accused was less than frank in not mentioning in particular that he had a key to the unit at two critical times, I do not think that very much turns on that lack of frankness. I have already found that the accused had a key at relevant times. The fact that he was not prepared to say so to the police does not make it more likely that he is guilty of the offence. He otherwise tells the truth to the police about the change of the door and his involvement. I cannot use his lack of frankness to draw any inference about what other involvement he may have had.

[23]

The Building Access Information

I am not convinced beyond reasonable doubt that the accused provided the Building Access Information to the assailants. Certainly, the accused was informed of the existence of entry through the back fire stairs, although he was told at the same time that it would be necessary to make contact with the people who lived in unit 1 so that that access could actually be made available.
It is likely that at least some of the assailants were the same people who were actually involved in the killing as those who attended on 8 March. So much is clear from the getaway car that was used and the fact that the handles to the poolside steel grille door were found in the burnt out getaway car on 10 March 2017. Certainly, the assailants who attended on 8 March did not make use of the Building Access Information. If the accused had told them that they could enter through "the back fire stairs", it is difficult to understand why they would have attempted to break in from the pool area, and into the foyer where there were no apparent fire stairs.
That view is strengthened by the fact that the assailants entered the complex on 8 March down the southern path which clearly extended to the back of the building. Further, when the assailants were stymied in gaining access to a higher floor than the ground floor, as they were leaving along the southern path two of them walked briefly down that path towards the river. The CCTV footage makes clear, from a timing point of view, that they could not have walked as far as the back of the building along that path before turning back. The time they spent in and around the entrance and foyer area of the back building suggests that there was no real sense of urgency about their mission that night. The fact that they did not traverse the southern path to the back of the building when they could not otherwise access it suggests that, at that time, they did not know of the back fire stairs.
I accept that it is possible that the accused provided the Building Access Information after the failed entry attempt came to his attention, but that would be mere conjecture. Nor do I consider that the Building Access Information was sufficiently unique to the accused that it must be inferred that the entry by the assailants on 10 March derived from the imparting of that knowledge from the accused to the assailants.
Unlike the position of the key, a copy of which could only have been procured from the accused, the Building Access Information might have come from a number of other means including other persons who lived at the premises or from observation by or on behalf of the assailants up to the time of 10 March 2017.

[24]

Provision of the key

The position is otherwise in respect of the provision of the key. I have found beyond reasonable doubt that the assailants entered the unit on 10 March by using a key. As I have indicated earlier, the accused was the only person who could have provided a key for duplication, or a duplicate key. In those circumstances, the frequent contact with Mr Sleiman on and after 3 March when the accused had a key to the unit, and what was said by the accused to M1 and Mr El-Hallak on 25 July compels a conclusion that the accused was involved in the killing.
Another matter of some significance is the occasion on 8 March when the accused went to the property, after ringing the deceased to see if he could do so. He entered via the southern path and in through the side gate to the pool area. Almost immediately after entering the pool area he looked towards the steel grille door where the handles had been removed, and continued to do so as he walked towards the glass door. To do so he needed to step over a tree which had fallen into the yard but he did not look at that tree at all. Although the Crown suggested that he again looked at that door after he entered through the glass door, the movement is too fleeting to reach a firm view about that matter.
The location of the steel grille door and the fact that its external fitting to the lock had been removed was such that a person who was not cognisant that something had happened to the door would be unlikely to stare at it in the way that the accused did. I have viewed the CCTV footage a number of times, in addition to having seen it played in court. There is no doubt that his gaze is focused on that door. Photographs 18, 19 and 20 in Exhibit E demonstrate how insignificant the damage to that door was unless one was focused upon it and knew that there was something to see. The inference that is available from his actions is that he was aware of what had taken place in relation to that door on the previous night. The inference is strengthened because common experience suggests that a person confronted by a very large branch of a tree which had fallen across one's path is likely at least to glance at the branch and/or the tree.
If the accused was aware that the handles to that door had been removed earlier that day, there is a powerful inference that he was involved directly or indirectly with the assailants, and knew that their intention was to kill the deceased. That he knew, in any event, that their intention was to kill the deceased is made clear from the admission made to M1 and Mr El-Hallak about how he could have set it up, because he knew, in the first instance, that the assailants were to shoot the deceased.
Taking into account that the assailants entered the unit using a key, the accused's opportunity and capacity to have the key duplicated, the admission made in the 25 July conversation, the powerful inference of his knowledge of what took place on 8 March, his contacts with Mr Sleiman at the relevant times, and his belief that Mr Sleiman was involved in the deceased's killing, I am satisfied beyond reasonable doubt that the accused provided assistance to the assailants by supplying a key or duplicate key to enable access to the deceased's unit to kill the deceased by shooting him.
As I noted earlier, Mr James submitted that the existence of a motive was an intermediate fact which necessitated a finding of a motive beyond reasonable doubt. The Crown submitted that it was only a circumstance to consider along with the other circumstances.
Motive is not, of course, an element of the present offence. Often, however, in circumstantial cases a jury will need to consider the three matters of opportunity, capacity (or means) and motive: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 579; Plomp at 242; Burrell at [86]; and see the discussion of motive in Baden-Clay at [67]-[71]. I do not understand the cases to elevate the matter of motive to that of an intermediate fact as a matter of general principle. There may be cases, such as the present, where, for example, opportunity and means, have much greater significance.
On one view the present case is somewhat unusual in that the accused's involvement arose from circumstances presented to him, entirely the making of others, the police, with whom he was not associated. That is not to say, however, that the evidence discloses no motive for his involvement. There are three possibilities. The first is the prior, apparently retaliatory killings, where the last victim was a friend of the accused, and the deceased was a suspect in that killing. The second motive was provided by the accused himself in the recorded conversation of 25 July 2017 where he referred to the deceased's crew who had "ripped him" $265,000, and the accused, having told Mr Sleiman of the matter, was prepared to turn against "them". That conversation took place against the background of whether the accused was likely to have been involved in the shooting of Mr Sleiman after what was arranged about the deceased's murder.
A third possible motive is a payment by Mr Sleiman to the accused of $25,000, in return for his involvement, which would have helped the accused's financial position in relation to his upcoming wedding and the renovations he was having done on a house. Whilst I consider that this may have provided a motive for the accused's involvement, I do not overlook the evidence suggesting that the accused and Mr Sleiman seemed to have other financial interactions.
It is not necessary to fix upon a particular motive because a motive is not an intermediate fact. If there had been no possible motive, I accept that its absence would have weakened, although not destroyed, the circumstantial case which is, for the reasons I have given, otherwise very strong. I take into account that any of these three possible motives means that the accused's involvement is not without a possible rational explanation.
In my opinion, having regard to all of the evidence, there is no reasonable explanation consistent with the innocence of the accused for the assailants to have been assisted by the provision of a key to the deceased's unit so that they could kill him.
Accordingly, I find the accused Ahmed Jaghbir guilty of procuring, aiding and counselling unknown persons to murder Kemel Barakat.

R v Jaghbir

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