R v Jason Hans Speelman [2016] NSWDC 322 | Case summary

R v Jason Hans Speelman [2016] NSWDC 322 | Case summary | Zoe

[16]

Circumstantial Evidence

There is direct evidence from Joseph Ison that Mr Speelman shot him. A robust attack was made on Ison's credibility, reliability and honesty. There was an attack on his capacity to properly identify his shooter given the available lighting and the injuries he suffered. Where the Crown rely on one person to prove a case or a critical part of a case, it is important that I exercise caution before I convict the accused. For those reasons I must examine Ison's evidence very carefully before I can safely act on it to the high standard required.
There are many dangers with identification or, as here, recognition, evidence. A witness may sincerely believe their identification is correct, even though completely wrong. Errors may also occur even when the witness has previously known an accused. Just because a witness claims to have known the person there still remains the possibility of mistake. I bear in mind the special need for caution before accepting identification evidence and the reasons for that caution both generally and in circumstances of the case: s 116 Evidence Act 1995.
Long experience, both my own and of judges going back centuries, has shown that such evidence may turn out to be unreliable. Long experience has shown that a witness may make dogmatic assertions of recognition or identification in a way that precludes proper testing by cross-examination and that such witnesses who make such assertions can be shown to be wrong.
I must carefully consider the circumstances in which Ison made his observations, especially those circumstances that may have led him into error. These include the available lighting, more particularly the lack of it; Ison's expectations that Speelman would come to the premises that night; and his possible incapacity due to fear; stress and/or drug use. I must also consider the opportunities he had to see the shooter, the length of time he had to do so, his distance from the shooter and the impact of the subsequent trauma on him.
Against the possibility that a finding of guilt could not be made based solely on Ison's identification of Mr Speelman, I must consider what other evidence supports this identification. Possibly suspect identification or recognition evidence can still form part of the circumstantial case made for the prosecution. Accordingly, to find the accused guilty I would have to be satisfied that Speelman's guilt is the only reasonable inference that can be drawn from the circumstances established by all the evidence. I must consider the evidence as whole.
I do not disregard an item of evidence because when I consider it alone it does not support a reasonable inference of guilt. One piece of evidence may resolve any doubts I have about another piece. However, I remind myself, if there is any reasonable explanation of those circumstances which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and I must acquit him.
Here the defence argue, particularly in relation to count 1 that Ison has deliberately and maliciously misidentified the shooter as Jason Speelman. It is also argued that the circumstances are such that he could not have identified who his shooter was. I do not need to be convinced that this is what happened. I must acquit if these or some other explanation is reasonable in the light of all the evidence at trial.

[18]

Evidence Summary

Just before 1am on 8 April 2015, a person wearing a white top walked down the driveway on the western side of 19 Graham Street, Unanderra towards the garage at the rear of the premises. At that time Joseph Ison was hiding at the corner of the house in shadow. A shot was fired. The person wearing the white top then pointed the gun at Ison. The gun was fired. The bullet entered Ison's head below his right ear. It exited at the base of the hairline on the mid-point of his neck, the occiput: see photos, exhibit C, and the certificate of Dr Liu, exhibit T.
The shooter then went to the front of the property. Although wounded Ison went to the eastern side of the house. Another shot or shots were fired at him. Ison retreated to the rear of the premises. The shooter left heading east down Graham Street. Police and ambulance were called.
When asked "Who shot you?" Ison replied "Jason Speelman": transcript 44. When asked "Why?" he is recorded as saying "He thinks I was rooting his girl." As a consequence police circulated information that Mr Speelman was wanted for questioning. A gold Nissan Pulsar belonging to his mother was also nominated of being of interest to police. That vehicle was found later that day apparently abandoned.
At about 9am the same morning, police saw Jason Speelman walking east on the southern footpath of Northcliffe Drive, Berkeley. When approached by police Speelman was asked to stop. He did not. Police were concerned he was armed. They drew their weapons. Speelman produced a knife and held it above his head and then towards police. He also held it parallel to his chest, with the tip pointed at his throat. He was told to drop the knife. He did not do so.
The direction where he was pointing the knife would alternate. At times he pointed it at police and other times he had the knife at his own throat. Speelman said a number of times "Kill me, just kill me" and "I just want to die. Just kill me". Tasers were fired. Eventually one of them worked. Speelman dropped to the footpath and dropped the knife. He was arrested, handcuffed and placed in custody: Senior Constable Crosland, exhibit E and Senior Constable Lloyd, exhibit X.
At Lake Illawarra Police Station Speelman was seen to repeatedly bang his head on the metal frame of the dock, repeating "Why don't you just kill me. I want to die." Sergeant Brown, the custody manager, noted that he appeared to be intoxicated with some substance: exhibit Q. Detectives also formed this opinion and "time out" was allowed so he could recover before being spoken to. Later, on being told he had been charged with "shooting Joe Ison", he replied "I can't remember anything". He refused to be formally interviewed.

[20]

Joseph Ison

Joseph Ison has a criminal record. He was a drug dealer. He has known Speelman for some time. He gave conflicting accounts as to how long he had known him and how they first met but it was not in dispute they were well known to each other by April 2015. It was put to him in cross-examination by Mr Wasilenia, who appeared for the accused, that he had asked Speelman to act as his protector at some stage: transcript 32.
In April 2015, Speelman and his wife Michelle had separated. Michelle Speelman started spending time with Robert Fitzgerald. Ison was friendly with Robert Fitzgerald. Fitzgerald has the nickname "Builder".
In 2015 Ison was not friends with Speelman. Speelman has the nickname "Spelly". Speelman accused Ison of owing him money. Ison did acknowledge there had been a debt but not that there was then any debt owed. However, in 2015 it appears he was avoiding Speelman.
On 7 April 2015, Ison spoke by telephone with Robert Fitzgerald. What was said concerned him. He drove to his Fitzgerald's home in Graham Street. Another friend, Steven Galea, also came around. The men were in Fitzgerald's garage at the rear of Fitzgerald's father's home. Fitzgerald told Ison of concerns he had about Speelman. At about 10pm Ison moved his car away from Graham Street and came back. Later, looking up the driveway, under the open roller door of the garage, Ison saw a silver Commodore drive past. He believed this car was Speelman's as he drove such a car. Even later still, after midnight, he saw a gold coloured car drive past: transcript 9. He believed this car to be Speelman's mothers.
After the gold car had passed the three men left the garage. Ison took a machete with him. He says he left it near the steps of the southwest corner of Fitzgerald's house. Police found it near there later that morning. Ison says he did not touch the machete after putting it down. There was no evidence to the contrary.
Ison walked up the drive and east down Graham Street towards number 9: see satellite map exhibit A. He looked towards number 7. He saw a man in a white top. He recognised him as Jason Speelman. He saw the man reach for something at his waist. He believed it was gun. He ran. He yelled to his friends "He's coming. He's got something": transcript 12. They ran too.
At the southwest corner of the house Ison stopped and hid in the shadows. A man in a white top came down the drive. He heard that man yell out something. He heard, "Builder get out here you dog" or "something like that": transcript 18. He later agreed under cross-examination that these words were not recorded in his police statement made soon after the event.
That man turned towards him and shot him. Ison said in evidence: "I turned like that a little bit to look and I saw Jason with the gun. Straight look at me, eyes and bang just pulled the trigger. Jason with the browney coloured gun look in the eyes and just pulled the trigger and then I got shot.": transcript 19. He got up saying, "You shot me you dog Spelly": transcript 20. He later agreed under cross-examination that this comment was not recorded in his police statement.
He said he chased the shooter a short way up the driveway and then went to the rear of the house and up the eastern side. He said he saw the shooter turn and fire at him. He retreated to the back yard.
He was agitated and running around. He eventually received some attention from Galea and ended up prone on the front verge of the house where police and ambulance found him. He said he had no recollection of what occurred while he was in the ambulance.

[21]

Challenges to Ison's Account

The defence case is that Ison either wrongly identified the shooter as Jason Speelman or that he did so deliberately and maliciously.
Ison admits a criminal past. He was taking medication for a bi-polar disorder. He has used methylamphetamine. He recalls drinking alcohol and smoking pot that day. He conceded that he may have taken "Ice": transcript 73. He said the same to Wollongong Hospital staff: exhibits 4 and 5. St George Hospital notes record "Impression: minimal drug use, no significant abuse or dependence": exhibit 5.
If he ever was, he was not in April 2015, Speelman's friend. It was put, but denied, that he nominated Jason Speelman as being the person who shot him because; first. it would get rid of him for his best friend Robert and aid Robert's relationship with Michelle; secondly, he would not have to pay Speelman back money he owed him.
Mr Wasilenia put to him he was "trying to kill two birds with one stone, isn't that right?". Mr Ison replied "No": transcript 110.
Ison said things in evidence that he did not say in his statement to police. His explanation being: "I just got out of a coma from being shot in the head to having surgery. Let someone shoot you in the head, you go in there and have surgery and let someone talk to you": transcript 28.
Detective Briffa, who interviewed Ison at the hospital, told me that Ison appeared to him to be alert and understood what was asked of him.
In his evidence Ison did at times appear to jump to conclusions. An example is when, in chief, he said he recognised Speelman and when Speelman reached for something "He thought straight away it was a gun": transcript 13. He did not say this in his statement to police. He explained he had presumed what he saw was a gun because of his prior belief Speelman had firearm convictions. He was however correct, the man in the white hoodie did have a gun. The question arises, did he similarly presume that the shooter was Speelman because he was expecting his attendance at Graham Street?
He was fearful of what Speelman might do to Fitzgerald. He believed Speelman had access to firearms and he was shot that night by someone who he did not or could not see clearly, but who he presumed to be Speelman. That false presumption may have been contributed to by his anxious mental state, which in turn was impacted upon by his mental illness, his medications and illicit and legal drug use. I must be careful: has he now reached a solid, unshakeable but mistaken belief?
Another issue requires care: Ison did not present well. He was disdainful of police and, while at least polite to me, showed little respect for court procedures. He did not present as a person who respected his oath or the truth. He also had the problems noted above.
He was however undoubtedly the victim of a very serious criminal offence. To what extent then is such a person to be accepted when he accuses another of committing a very serious criminal offence?

[28]

Michelle Speelman

Michelle Speelman found it distressing to give evidence in a trial involving in her husband (soon to be divorced) and father of her children. She objected giving evidence. I compelled her to do so: see separate judgment. Her testimony was supported by text and phone records: exhibits AA and AB. It was supported by extracts from telephone conversations recorded by gaol authorities: exhibit AB.
In brief, I am prepared to accept the following as proved: She and Mr Speelman had separated; the separation was distressing to them both; she had formed a romantic attachment with Robert Fitzgerald; she tried to keep that from Mr Speelman; he was suspicious; he was at times emotional and in the past had threatened suicide on one occasion, this involved a knife. He behaved in a manner that distressed her, such as coming uninvited to her sister's home in Berkeley. On that occasion police were called.
About a week or so before the incidents of 7th and 8 April, while at his mother's house, he showed her something that she said "may" have been a gun. She said it was only partially visible under a cloth. She was also aware that he had gone to gaol for firearm possession some years earlier. The fact that he was in gaol is not otherwise relevant.
On 7 April 2015 Mr Speelman came to where she and the children lived at Sanctuary Point. He accessed her phone without her permission. On it he saw a message between her and Robert Fitzgerald. She thought the message or messages had been deleted. These messages upset him. He said to her among other things, "You just killed me".
That afternoon calls and texts were sent to her from Mr Speelman, most went unanswered. Mr Speelman is recorded as saying, for example at 23.31, "I'm gutted I just want to die". She got through to him, returning a call at 23.33pm. He was hysterical, he appeared concerned that she was worried that he might hurt himself. At 12.55am she called the number he had used earlier but it was not a number she otherwise had recorded in her phone. She heard "swishing sounds" that sounded like he was running. Versions of this conversation were put to her. Some of the versions put in questioning were inadmissible as evidence as she did not adopt them. She did however accept that she heard Speelman saying "I've done something bad...don't worry I didn't get your precious builder". He also mentioned something about hiding in the bushes.
Later that morning at 1.06am, she rang that number again. His mother, Mrs Norma Speelman, answered. She then put Mr Speelman on the phone. He said to Michelle Speelman, "It was you, it was always you, I love you".
Michelle Speelman agreed she had spoken to Mr Speelman at the gaol by phone on a number of occasions. She agreed she said what is recorded on the transcript, exhibit AB.
In cross-examination she agreed with the suggestion by Mr Wasilenia that at no time did Jason Speelman ever say to her that he had shot Ison. She advanced a reason for that, an opinion that for present purposes I disregard as it was not responsive and could not be regarded as evidence in the trial.

[32]

Submissions

Mr Steward, for the Crown, stressed that the evidence corroborating the accuracy of Ison's account and what he submitted was Ison's reliability. He suggested it was implausible Ison could have had the presence of mind to falsely implicate Speelman, or to have made a fundamental mistake about identity given the opportunities to see the man in the hoodie both in Graham Street and at close quarters near the garage. He drew my attention to the times of various calls and what the accused said to his wife: "I did something bad, I didn't get your precious builder." He submitted, exhibit AB contained a telling slip. All the evidence he submitted proved beyond reasonable doubt count 1.
As to count 2 he said even if Speelman did in fact want to be shot he was acting to avoid apprehension. That apprehension was lawful.
Mr Wasilenia, as to count 2, drew my attention to the provisions of the Law (Enforcement Powers and Responsibilities) Act. He raised these questions: 1. Were the police acting lawfully when they stopped Speelman? 2. Were they in fact trying to apprehend or arrest Speelman or simply reacting to his suicide attempt?
He said that real doubt existed as to whether elements of lawfulness and in particular intention had been proved to the high standard necessary.
So far as count 1 was concerned he made a sustained and detailed attack on Ison's credibility, reliability and truthfulness. He took me to examples which would cause me, he suggested, to question whether anything said by Ison could be relied upon at all, let alone to the standard required in a criminal trial. He pointed to the absence of forensic evidence linking Mr Speelman to the crime: no DNA; no gunshot residue; no prints; no gun; and, no white clothing.
All are relevant but, with respect, the absence of evidence does not necessarily provide evidence of an accused's absence from the scene. I have to note that there was a gap in time in the evidence about Mr Speelman's whereabouts; from when he spoke on the phone to Michelle Speelman just after 1am to when he was seen by police at 9am within short walking distance of his mother's home.
As to exhibit AB, I have already addressed his point that the Crown are making too much of two people slinging mud at each other. He urged me to consider the context of the conversation.
He said that that on the night of the shooting the evidence establishes that Mr Speelman was upset and who would not be. But there is no evidence that he intended any violence or directly engaged in any violent act other than that from the discredited Ison. He said that when I consider all the evidence I could not be satisfied beyond reasonable doubt that Mr Speelman was the shooter. He submits, all the evidence really shows is that night Speelman was upset and his wife was fearful that he intended suicide.
So far as count 2 is concerned he submitted that whatever way I approach the evidence, I could not be convinced beyond reasonable doubt that Speelman's intention was to avoid lawful apprehension.

[33]

Consideration - Count 1

Have the prosecution proved beyond reasonable doubt Mr Speelman was the shooter? There is no evidence Mr Speelman was intoxicated at about 1am. There is evidence he was intoxicated at 9pm. Intoxication was not relied upon by Mr Wasilenia, however as there is evidence about it, it must be considered.
The following however has been established by the evidence or can properly be inferred from proved facts; 1. In 2015 Mr Speelman and his wife had separated. 2. In early April 2015 Jason Speelman was concerned that his wife was romantically involved with a former friend Robert Fitzgerald. 3. Robert Fitzgerald's nickname is "builder". 4. Mr Speelman took steps to confirm those concerns. Those steps included parking near his wife's sister's home in Berkeley and near the Fitzgerald home in Graham Street, Unanderra at 3pm on 8 April 2015. He searched Mrs Speelman's mobile phone and found what he was looking for in texts between his wife and Robert Fitzgerald. 5. Mr Speelman was upset by this finding. He told Mrs Speelman "You just killed me, just kill me". 6. Speelman has history of suicide attempts. 7. Speelman had previously had access to firearms. In the weeks before 8 April he held out to Mrs Speelman he had a firearm at his mother's home at Werona Street, Berkeley. 8. At about 8.30pm Speelman went to 19 Graham Street, he was wearing a white top, he spoke to Gary Fitzgerald. He said he would be back. On the night of 7th Speelman woke his mother and borrowed her gold Nissan Pulsar. 9. He also accessed and took her phone; number 0421 507 113. 10. Speelman sent texts to his wife that night. They also at times called each other. She heard him in the background when she rang his daughter from a previous relationship, she said "he seemed very upset". 11. Mr Speelman also had a phone in his name; number 0422 284 679. 12. Robert Fitzgerald asked his friends Joseph Ison and Steve Galea to stay with him in his garage at the rear of 19 Graham Street. Fitzgerald and the others were fearful that Mr Speelman would come to his home. Illicit drugs and possibly alcohol were consumed by some or all of them. At 20.20 Speelman spoke to Robert Fitzgerald by telephone for 163 seconds: exhibit AB. 13. At 11.33 Mrs Speelman called Mr Speelman on 0422 284 679. He was hysterical. She was worried he would do something irrational as he had hurt himself before. 14. Before midnight the men in garage, looking under the open roller door, saw a gold coloured Nissan drive past in Graham Street. Ison and Fitzgerald recognised this as belonging to Mr Speelman's mother. 15. The men went into Graham Street. As they left the garage Ison took a machete with him. He left it at the rear of the house. 16. Ison went further down Graham Street than the others. Outside number 7 he saw the man in a white top. That man reached for something. Ison believed it to be a gun. Ison ran back yelling "He's here, he's got something". 17. Fitzgerald and Galea ran to the garage. They closed the roller doors and held the side door shut. 18. Ison ran to the south-west corner for the house and hid in the shadow. 19. The street lighting was sufficient for a neighbour across the street to see the man in white top go down the driveway, raise his arm and point the gun towards the rear south-west corner of the house. 20. A man in a white top did go down the driveway. He fired shots; one, possibly two. Ison did not mention this other shot but others do. Two bullets or fragments were found at the rear of the house in positions consistent with this hypothesis and no other. 21. When the man in the white top got to the rear south-west corner of the house he extended his arm, and fired a shot directly at Ison. He could not have been very far from Ison in that time. The bullet went through Ison's head. 22. Ison yelled something. The man ran to the front of the house. Ison went to the north-east corner. The main fired another shot at him and ran off down Graham Street. 23. At 12:55:53 a call was made to 000 from 19 Graham Street: exhibit R. 24. At 12.55 Mrs Speelman rang 0421 507 113: exhibit AB. Mr Speelman answered, he appeared to her, from the noises she heard, to be running. He said "I've done something bad...don't worry I didn't get your precious builder". 25. At 1.05 Mrs Speelman rang Mr Speelman's phone. Mrs Norma Speelman answered, she then put her son on the phone. 26. About 9am on 8 April, Mr Speelman was seen in Northcliffe Drive, Berkeley near his mother's home: exhibit AC. He was wearing a dark jacket and shorts, he had a knife with him, he was apparently intoxicated and behaving in a disturbing manner and confessed to be suicidal: exhibit B. 27. The gold Nissan was found on 9 April 2015: see map, exhibit AC, in a cul-de-sac in Berkeley, apparently abandoned. DNA testing reveals that at some time Mr Speelman had been in the car: exhibit L. 28. In telephone conversations with his wife from gaol Mr Speelman at no time said he shot Ison. He did allude to having done so at the end of the conversation in exhibit AB. On its own this could not constitute an admission as I could not rule out the possibility it was said sarcastically to goad Mrs Speelman. The words were used so I do not ignore the evidence. It can be used as a strand in the Crown's circumstantial case, taking into account all the cautions that apply to such evidence.

[37]

Count 2

Have the prosecution proved beyond reasonable doubt Mr Speelman's use of the knife was to avoid lawful apprehension? I have to ask to what extent did his state of intoxication, at 9am, impede his capacity to perform a necessary intention. There is evidence police thought he was intoxicated. I have to take into account that fact in determining whether he had the intention to cause a specific result necessary to found the charge. There is no evidence to indicate by what, and to what extent, he was intoxicated.
Given his actions appeared to be willed and purposeful, if erratic and self-destructive, the prosecution have to my satisfaction established beyond reasonable doubt that he intended to do what he did.
The real question for me is was it to avoid lawful apprehension? Mr Wasilenia submits the police had no right to stop Mr Speelman in Northcliffe Drive citing the well-known case of Christie v Leachinsky [1947] AC 573.
Police do have power to stop and arrest. Those powers have to be exercised in accordance with s 202 of LEPRA. In the circumstances given what occurred after the first request to stop, it was not, then, reasonably practical for them to comply with s 202. The knife was produced almost immediately. It was held above Speelman's head and at police. He must have known they were police. It was not then necessary or practical for them to announce that he was under arrest or what he was under arrest for. The police on scene had more immediate and pressing concerns. To spell it out; they were concerned for their own safety. They were also concerned for the safety of the public. It would appear they were also concerned for Mr Speelman's safety; he having indicated he intended to harm himself.
There was a continuing offence being committed. They had to deal with it. The police on scene were acting lawfully. But that does not answer the fundamental question, that is; in using the knife what has been proved beyond reasonable doubt to be Mr Speelman's intention? It seems to me to open to conclude that he intended: 1. (a) to threaten police, and 2. (b) to provoke them into shooting him. It is also possible that he intended to 1. (c) harm himself with the knife. However those intentions do not preclude a fourth option, (d) preventing his lawful apprehension.
Even in a disturbed state it would have been obvious to Mr Speelman that he had produced the knife to police officers and threatened them with it, thus justifying his apprehension. Further, I have to make my decision as to whether the Crown has proved this element of the offence by reviewing the whole of the evidence available to me. That evidence includes my findings: that as a matter of fact that Mr Speelman had shot Ison; that he had run from the scene; that he had gone to his mother's; that he had dumped the car; that he must have changed his clothes; and, that he had, between 1am and 9am, disposed of the gun and other items associated with his earlier crime. He also knew, as he told Mrs Speelman, that he had done something bad. Then at 9am went to a very public area in southern Wollongong, Northcliffe Drive, armed with the knife.
While I do not hold his criminal record against him in any way, he was not ignorant of the law. He was not ignorant of police procedure and the consequences of committing serious offences. He well knew that when police saw him they would apprehend him. His actions when they attempted to stop him were deliberate and calculated. He may have had a number of reasons for brandishing the knife but one of them, I find, was to prevent his lawful apprehension. That fact has been proved beyond reasonable doubt. Count 2 has been proved.
Mr Speelman, for the reasons outlined so far as count 1 is concerned that on 8 April 2015 at Unanderra in the State of New South Wales you did shoot at Joseph Ison with intent to murder the said Joseph Ison. I find you guilty.
So far as count 2 is concerned that on 8 April 2015 at Unanderra, that you did use an offensive weapon with intent to prevent the lawful apprehension of yourself, I find you guilty. You are convicted in accordance with those findings.

R v Jason Hans Speelman

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