R v McCloskey; R v Hamalainen

Supreme Court of NSW|2019-08-20|Before: Wright J

Solicitors: Office of the Director of Public Prosecutions (Crown) Eliopoulos Lawyers (Hamalainen) Kapsis Solicitors (McCloskey) File Number(s): 2017/356657 (Hamalainen)2017/354632 (McCloskey)

Judgment

In the interests of brevity and without disrespect, I shall refer to the accused by their initials, RM and SH.
In these reasons, the Court is dealing with a number of objections to the evidence sought to be relied upon by the prosecution.

Crown case and defence cases

The prosecution's case as outlined in the Crown case statement was as follows: "BACKGROUND 1. The accused in this matter are Robert John Stewart McCloskey (42 years) and Sami Esko Hamalainen (42 years). 2. McCloskey has been a member of The Rebels Outlaw Motorcycle Club for over 10 years. He was previously the President of The Sydney City chapter of the club. 3. Hamalainen is the President of the Ulladulla chapter of The Rebels Outlaw Motorcycle Club. He has been a member of the club for over 10 years. 4. The deceased, John Paul Salafia (36 years at death) was a member of The Rebels Outlaw Motorcycle club for a short period around 2002. He had been a close associate of Hamalainen as they grew up together in the Ulladulla region. MOTIVE 5. In the years prior to June 2013 the deceased and Hamalainen had a number of personal issues and Hamalainen strongly disliked the deceased. 6. The deceased was in a de-facto relationship with Sara Woodcock for almost 10 years. Prior to that Woodcock had dated Hamalainen and claimed he had drugged and raped her on one occasion. Hamalainen denied this. 7. Hamalainen was aware that the deceased had insulted Hamalainen's son … who is autistic. This angered Hamalainen. 8. From late 2012 through to June 2013 the deceased was regularly associating with Steven Balshaw, a nominee for the Comancheros Outlaw Motorcycle Club in the Ulladulla area. This association caused issues between the deceased and the Ulladulla chapter of The Rebels. 9. In the weeks prior to the murder the deceased and Balshaw bashed a young drug dealer, Luke Sanderson, and allegedly flushed his illicit drugs down the toilet. Hamalainen became concerned that the deceased was taking over the town and his "trade" in drugs. INFORMER EVIDENCE 10. The inculpatory evidence in this matter comes from three informer witnesses. Two such witnesses … had close relationships with both accused and also the deceased. They give details of events around the time of the murder and of admissions made directly to them by one or both of the accused. Some of these admissions were legally recorded on listening device. 11. A further informer gives details of admissions made by Hamalainen following the murder. AGREEMENT TO MURDER 12. On 18 June 2013 Hamalainen travelled to Sydney and met with McCloskey at Mascot. During this meeting Hamalainen asked McCloskey to murder the deceased and the murder was planned. McCloskey and his "crew" from the Sydney chapter of The Rebels were to kill the deceased and Hamalainen was to provide a vehicle for their use. 13. On Saturday 22 June 2013 Hamalainen said to a witness, "I'm sick of Johnny running around and that. Robbie and his crew are coming down to fix Johnny." GET AWAY CAR 14. Following the meeting Hamalainen purchased a 1999 white Subaru Forester New South Wales registration VYJ-881, from Noel Meades of Bawley Point. A witness attended the home of Meades with Hamalainen and drove the vehicle to bushland at the back of Milton with Hamalainen following in his vehicle. As instructed, the witness left the keys on the floor of the vehicle and left the scene with Hamalainen. 15. On Saturday 22 June 2013 two associates … from the Nowra chapter of The Rebels met with the witness at Hamalainen's request. The witness showed them where the vehicle was hidden and the vehicle was moved further into the bush. 16. On the morning of 23 June 2018 the witness was instructed to meet with McCloskey and show him where the vehicle was positioned. They met at Termeil Shops. McCloskey was alone. He showed McCloskey where the vehicle was hidden. MURDER 17. At about 10.10pm on Sunday 23 June 2013 the deceased was at his residence at 96 Kings Point Drive, Kings Point with his two daughters, Dakota Woodcock (his step daughter who was at that time 12 years) and Tanika Salafia (at that time 6 years). His de-facto partner was at work at that time. 18. McCloskey and three of his crew drove to Kings Point Drive, Kings Point in vehicle VYJ881, the white Subaru Forester. At the time it was raining heavily. McCloskey and his crew approached the deceased's front door. McCloskey was armed with a firearm (either .38 or .357). The wooden front door sits behind a mesh covered metal front security door. 19. One of the males knocked on the security door and the deceased opened the wooden door but the security door remained closed. The deceased said, "What?" McCloskey discharged his firearm at the deceased through the security door five times. The deceased was struck in the chest, right buttock and head and fell to the floor. McCloskey and the other males ran back along Kings Point Drive, Kings Point, got into vehicle VYJ881 and left the area. 20. The deceased's daughters were in bed in the front bedroom, adjacent to the front door. They had overheard the confrontation and thought that it may have been a domestic dispute between the deceased and their mother. They saw the deceased on the floor in front of the television and thought he was asleep. 21. About 10:30pm the deceased's de-facto partner, Sara Woodcock, returned home and saw the wooden front door open and the screen door closed. This was unusual as the deceased would always have the door shut at night. 22. Woodcock walked towards the front door and saw the deceased lying on the lounge room floor. She opened the screen door and saw that he had a wound to his head and blood on his chest. She checked him and called triple 0. She received CPR instructions from the operator. 23. A short time later ambulance arrived, followed by police. The deceased was treated for some time, but he died at the scene at 10.56pm. A crime scene was established. CRIME SCENE 24. The residence is a single storey 3 bedroom relocatable home with a veranda running along the front. The main entry is in the centre and opened on to the lounge room. A sensor security light installed on the veranda was not operational. 25. An impact damaged lead fragment (marker A) was found on top of the dining table in the south west corner of the living room. 26. An impact fired bullet was removed from a chest of drawers facing north on the southern wall in the living room (marker B). 27. A fired lead bullet was found in the hallway (marker C). 28. An impact damaged fired lead bullet was located on the couch positioned next to the front door (marker E) and the ceiling above had sustained bullet impact damage (marker E1). The bullet located in marker E caused the ceiling damage. 29. In front of the couch on the floor was several items of clothing from a spilled wash basket that had sustained bullet related damage. 30. The rug on the living room floor sustained areas of bullet related damage caused by the same bullet (marker C1 C2). A reverse trajectory of the bullet's path indicated that the bullet travelled from the front door of the house. 31. The flyscreen door sustained five areas of bullet related damage and all five bullets were discharged from outside the house. 32. Located in the front veranda was in impact damaged fragment of lead (marker D). 33. The muzzle to target range at the time of discharging the firearm could not be established. POST MORTEM 34. A post mortem examination was conducted on Tuesday 25 June 2013 by Doctor Brouwer, Forensic Pathologist. The accused had sustained three gunshot wounds and direct cause of death was a gunshot wound to the chest. 35. The deceased had sustained an irregular shaped bullet entry wound on the top left side of the head with a corresponding exit wound. The bullet path was determined to be front to rear and right to left (all directions are given in the anatomical position) and the firearm was distant to the deceased at the time of discharge. 36. The deceased had sustained an oval shaped bullet entry wound on the left side of the chest and the fired bullet was located in the spinal column. The bullet path was determined to be front to rear and right to left and slightly down. 37. The deceased had sustained a roughly circular shaped bullet entry wound on the right buttock. An impact damaged bullet was located in the right buttock. The bullet path was determined to be rear to front, right to left and horizontal. VEHICLE VYJ-881 38. McCloskey and his crew drove vehicle VYJ-881 away from the crime scene and returned it to the bush. Two associates then drove the vehicle further into the bush and burned it immediately after the murder. Due to the torrential rain and the fact [the two associates] were not familiar with the area the position of the vehicle was far from ideal. 39. Hamalainen drove from Ulladulla to Shoalhaven Hospital at Nowra to visit his sick son. He arrived at Nowra around 6pm and returned to the Ulladulla area around 10pm. He then picked up the witness from his home. 40. Immediately after the murder Hamalainen travelled with a witness to Bawley Point where Hamalainen instructed the witness to warn Noel Meades, the previous owner of the vehicle, not to tell police that Hamalainen had purchased vehicle VYJ881. The witness visited Meades on a further occasion with a second witness thereafter at the instruction of Hamalainen to give the same warning. 41. In the days following the murder Hamalainen instructed the witness to find of from [one of the two associates] where the vehicle was hidden. [One of the two assoicates] indicated that given the treacherous weather conditions and the fact that he did not know the area he would have to show the witness where the vehicle was. It took them some hours to find it. 42. Hamalainen was disgruntled with the position of the burnt out vehicle and arranged a car trailer to move it further in the bush to hide it from police. The witness, his son, the second witness and his son assisted Hamalainen to move the vehicle. 43. About 9.30am on Monday 1 July 2013 police were called to a dirt track off Woodburn Road, Morton, and recovered vehicle VYJ881, a 1999 white Subaru Forester that had been completely destroyed by fire. ADMISSIONS BY McCLOSKEY 44. In August 2016 McCloskey told a witness the following: "Well that was me. I did it with two guys from Sydney. [Another person] and his mate. …. We went there and I hid out the front to the side of the door and knocked. The other two were in front of the door, down the steps. Johnny came to the door and said, "What the fuck do you want?" I jumped in front of the door and Johnny said, "Robbie!" I went, bang! Bang! Bang! Bang! I got him in the chest and missed with one. I opened up the door and leant right over him. There was blood pumping out of him and he was screaming. I went, bang, right in the head. He was on the ground shaking." "It was a favour for Sami. You know what the guys got for it? Two pounds of cannabis, that's it." "We took two guns, I used a .38 and one of the other boys had a .22 but they didn't use that one. We were wearing Commanchero jumpers we ripped from some bloke in Sydney. We left the car with Sami and [another person] to burn it out that night in the bush. The other boys fucked off back over the mountains, Brown's Mountain way." 45. Around October 2016 McCloskey told a witness the following: "Well, I'm pissed off with Sami!" "The guns we used for Johnny, we gave them to Sami and he put them in bleach. He fucked them up because he left them in the bleach too long. They cost $10,000 and all the boys got was two pounds of pot. The Afghani boys are pissed off with Sami, they were going to come down and knock him because they were that pissed off with what he done." "They're pissed off but I've had to sort it, I told Sami to go to Thailand for three weeks. But I'm pissed off because I have to give the boys the ten grand now. Can you lend me a few thousand so I can give them something?" "Sami arranged Johnny's murder, and came up to Sydney to have dinner with us and said Johnny was taking over the town and hanging with the Commos and shit. I got really pissed off when I found out later that Sami was pissed off with Johnny because Johnny went around to that young blokes place and took those drugs off him and flushed them down the toilet. They were Sami's drugs. I wouldn't have done it if I had known it was only because of that pissy shit." 46. On Wednesday 21 December 2016 the witness was provided with recording devices by police. A conversation was recorded between the witness and McCloskey where McCloskey detailed the murder and admitted shooting the deceased. 47. On Monday 12 June 2017 the witness was provided with recording devices by police. A conversation was recorded between the witness and McCloskey where McCloskey discussed the vehicle that was used during the murder. 48. On Friday 28 June 2017 a conversation took place between the witness and McCloskey where McCloskey said the following: "The cops are so close to locking up Sami up for murder. The cops are looking at me too. Tell Sami to fuck off to Finland in the next two weeks and keep his mouth shut or I'll put a bullet in his head. I'm sick of him going on about it. Sami was trying to get Tricky do drugs with him and then he was telling Tricky something about the murder. Sami was pissed at this party the other night at JJ's." ADMISSIONS BY HAMALAINEN 49. On Monday 3 July 2017 the witness was provided with recording devices by police. A conversation was recorded between the witness and Hamalainen where the witness passed on a message from McCloskey that Hamalainen should leave for Finland. Hamalainen said: "I don't care, it's nothing to do with me. Robbie should be the one worried, he's the one who will get locked up for it. I will fight it." 50. On Wednesday 5 July 2017 the witness spoke to Hamalainen and Hamalainen said: "[Another person] has more to worry about than me, he went down there and picked those blokes up." 51. Hamalainen left Australia on Wednesday 26 July 2017 and travelled to Finland. He returned to Australia some weeks later. ADMISSIONS BY HAMALAINEN 52. Sometime after the murder a witness visited Brad Howarth and his partner Kristy with Hamalainen in Ulladulla. Hamalainen pointed towards the laundry sink and said, "This is where they cleaned the guns". Hamalainen pointed to Howarth and said, "this fucking idiot couldn't do one thing and fucked up". 53. Around 28 November 2014 the witness spoke with Hamalainen and asked him if he was involved in the murder. Hamalainen said, "I got Robbie to do it, and a couple of guys from Sydney came down". "He was trying to take over the town, and he called my son a spastic, that's your god son what would you do?" "It had nothing to do with me I didn't do it" 54. In about 2015 the witness was driving with Hamalainen on Carisbrook Road from Brooman Road. They turned up a road (possibly Poisonbox Road) that also meet up with Flat Rock Road. Hamalainen pointed out two cars that were burnt out. One was a station wagon. Hamalainen said, "That's the car that they used out at Johnnies murder... We pushed it down the bush with the white Toyota after we moved it". The witness said, "Why did you do it?" Hamalainen replied, "Because he called [my son] a spastic, because of all the stuff with Sara, because he was going take over the town and Johnnie was going to get me or I was going to get Johnnie". 55. A few months later the witness and Hamalainen had a routine of walking in the morning. On one of these walks Hamalainen said: "I had to get it done, he was going to shoot me, he called [my son] a spastic, he met up and had an argument and he said he is going to get me first". 56. Hamalainen told the witness that should it look he was going to be arrested it was his intention to flee to Finland and live overseas. ADMISSIONS BY HAMALAINEN 57. Hamalainen spoke to a witness prior to the murder and said: "I'm sick of Johnny running around and that, Robbie and his crew are coming down to fix Johnny." 58. Following the murder Hamalainen said to the witness: "Robbie went too far and shot Johnny." ARREST OF McCLOSKEY/DECLINE INTERVIEW 59. About 6.10am on Thursday 23 November 2017 McCloskey was arrested at 13 Wharf Road, Surfside. He was cautioned and taken to Batemans Bay Police Station, where he was entered into custody. He was offered the opportunity to participate in an electronically recorded interview. He declined and was charged. ARREST OF HAMALAINEN/DECLINE INTERVIEW 60. Following the arrest of McCloskey on Thursday 23 November 2017 Hamalainen purchased an airline ticket to fly to Finland on 24 November 2017 in an effort to flee the jurisdiction. On Friday 24 November 2017 Hamalainen was driven to Sydney International Airport by an associate and progressed through to the customs area. He was arrested by Australian Federal Police and later came into the custody of NSW Police. He was arrested and cautioned and conveyed to Mascot Police Station. He was offered the opportunity to participate in an electronically recorded interview. He declined. He agreed to his refusal being recorded along and adopted some conversations with police earlier at the airport. He was then charged."
RM has pleaded not guilty. As disclosed in RM's notice of defence response, RM's case is that he is not guilty of the count on the indictment. He has put in issue the following facts and circumstances: 1. whether he murdered the deceased by shooting him; and 2. the truthfulness and reliability of the admissions allegedly made by him to witness RS 1591297, which are the admissions referred to in pars 44, 45 and 48 of the Crown case statement as well as the recorded admissions referred to in pars 46 and 47.
SH has pleaded not guilty. His case, as disclosed in his notice of defence response, is that he was not involved in any joint enterprise to murder the deceased nor was he involved in organising the murder. Accordingly, SH has put in issue all the facts matters and circumstances going to whether he was involved in the murder of the deceased. In addition, SH contends that admissions made by RM are not admissible against him.

RS 1678789 - pars 39, 40 and 43 - evidence of illicit drug activity and involvement with OMCGs going to motive

RM and SH object to pars 39, 40 and 43 which concern SH's attitude towards the deceased prior to his death because of SH's belief that the deceased was taking his drug trade, SH's involvement in activity relating to drugs and SH ceasing to have anything to do with the deceased and another person because of the deceased's association with that person who was associated with the Commancheros OMCG.
Neither RM nor SH specifically addressed these objections in their written submissions. Nor were they addressed in oral submissions on 20 August 2019.
The Crown's written submissions indicate that this evidence is relied upon as going to motive which, it is contended, is a fact in issue in the proceedings and thus is relevant. Further, it was submitted that, if prejudice is caused by adducing evidence of uncharged criminal acts, it can be cured by appropriate directions.
Under s 55(1) of the Evidence Act: "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."
Evidence that tends to establish a motive for murder may rationally affect the assessment of the probability of one or more elements of the murder offence charged and, consequently, such evidence is relevant: HML v The Queen (2008) 235 CLR 334 at [5]; [2008] HCA 16.
The evidence in pars 39, 40 and 43 tends to establish that SH had a motive to murder the deceased and is, therefore, relevant. No other reason for not receiving the evidence has been relied upon.
In so far as there may be some prejudice to SH or RM arising out of this evidence, it may be cured by the giving of clear and careful directions to the jury as to the limitations of the use that may be made of that evidence: R v Qaumi (No 14) [2016] NSWSC 274; 265 A Crim R 575 at [94].
For these reasons, the evidence in pars 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH.

RS 1678789 - par 72 - SH's representation that RM was coming down to fix Johnny

RM objects to par 72 because it contains the out of court statement by SH, referred to in par 57 of the Crown case statement, that "I [am] sick of Johnny running around and that, [RM] and his crew are coming down to fix Johnny'".
RM submitted that the statement was of a narrative nature and could not be said to be in furtherance of the alleged common purpose "as the pursuit of such did not require nor was it advanced by allegedly telling RS 1678789 those things". It was also contended in effect that the Crown was relying on the evidence of SH's previous representation for a hearsay purpose because it was seeking to prove the existence of the joint criminal enterprise from the fact that could reasonably be supposed SH intended to assert by the representation. This was said to be contrary to the principles in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 (Ahern) and Tripodi v The Queen (1964) 104 CLR 1 at 7; [1961] HCA 22 (Tripodi) and other authorities. Mr McMahon of counsel, who appears with Mr Vulpeanu for RM, also adopted the submissions on this topic of Mr Brady of Senior Counsel, who appears for SH.
The Crown submitted that the representation by SH was tendered not as to the truth of the utterance but as to the fact that the utterance was made in order to establish that the agreement or joint criminal enterprise, referred to in the Crown case statement, had been entered into. It was contended that, used in this way, the evidence was not being led for a hearsay purpose. In this regard, the Crown relied upon the High Court's decision in Ahern, as well as the observations by Whealy J in R v Baladjam [No 19] [2008] NSWSC 1441 at [55], [62] and [70] and the authorities there referred to.
Additionally, in supplementary submissions provided with leave, it was submitted that SH's representation went to participation by RM in the joint criminal enterprise, and was admissible on the basis that it was uttered in furtherance of the common purpose inherent in the enterprise. In particular, it was submitted that what was said could be categorised as part of an "arrangement", as that term is used in Tripodi at 7. Finally, it was submitted that "[w]hat might distinguish this utterance from being merely narrative is that it was made by SH to [the witness] in the context of the apparent need for the Subaru to be burnt out the next night."
If the evidence in par 72 were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely whether there was a joint criminal enterprise as alleged by the Crown and SH's and RM's participation in it. Thus, the evidence is relevant.
However, under s 59(1) of the Evidence Act: "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation."
The relevant part of par 72 contains a representation made previously by SH and consequently, by operation of s 59(1), it is not admissible to prove the existence of the fact that it can reasonably be supposed that SH intended to assert by the representation, namely that RM and his crew were coming down to fix Johnny, unless there is some applicable exception to the hearsay rule.
The Crown relies on, among other things, s 87(1)(c) of the Evidence Act as the basis for contending that par 72 is admissible against RM.
Section 81 of the Evidence Act provides: "(1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission."
Accordingly, if SH's previous representation is taken to be an admission by RM, it will not be inadmissible by operation of the hearsay rule.
Section 87(1) of the Evidence Act relates to admissions made with authority and relevantly provides: "(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party."
In determining whether it is reasonably open to find SH's previous representation was in furtherance of a common purpose (whether lawful or not) that SH had with RM, it is necessary to have regard to the evidence of the context in which that representation as made. In this case that context is principally found in the surrounding paragraphs 58 to 71 and 74 to 86 of the statement of witness RS 1678789, to which no objection has been taken by RM.
Paragraphs 58 to 71 contain evidence that: the witness was involved with SH in acquiring a Subaru car; he was instructed by SH what to do with the car after it was acquired; he was then instructed to assist others to move the car; he carried out those instructions; during the process of moving the car, the witness was told by others that the car was to be burnt the following night.
Paragraphs 74 to 86 contain evidence that: after the witness mentioned to SH what he had been told about the car being burnt, SH told him to go and meet RM and show him where the car was, which he did; when the witness met RM, he asked the witness to make sure there was fuel in the car; SH gave the witness a similar instruction; the witness was also instructed by SH to take out a drum to the location of the car; the witness obtained the fuel and the drum and took it out to the car.
Other context for the representation in par 72 includes that the representation is said to have been made after SH and RM had met in Sydney and before RM came down to the Ulladulla region and before the deceased was killed.
In the circumstances, I am satisfied that it is reasonably open to find that the SH's representation in par 72 that "[RM] and his crew are coming down to fix Johnny" was made as part of the arrangements implementing the joint criminal enterprise. It can be seen as an explanation given to the witness so that the witness would have a better understanding of whom he was to meet, what he was required to do and why he was required to do it. Accordingly, it is reasonably open to find that the representation was made in furtherance of the common purpose between SH and MR inherent in the joint criminal enterprise, as alleged by the Crown.
By operation of s 87(1)(c), the representation by SH in par 72 is to be taken to be an admission by RM and thus falls within the exception in s 81(1) to the hearsay rule.
The remainder of par 72 provides the necessary context for the representation and is relevant.
It is not necessary at this point to consider the other basis upon which the Crown relied to establish that par 72 is admissible against RM.
For these reasons, par 72 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM.

RS 1678789 - par 94 - witness contacting the seller of the Subaru after the deceased was killed

RM and SH object to par 94 of the statement of witness RS 1678789 of 24 August 2017. That paragraph records the witness's evidence of instructions given to him by SH, actions taken by him, words he spoke to a third person, Milo, and Milo's reaction as directly observed by the witness. Those actions and words are then reported on in a conversation between the witness and SH. The evidence, see par 60ff and to which no objection has been taken, is that Milo is the person from whom SH bought the Subaru car before the deceased was killed. That car was the car which the witness positioned in the bush, to which the witness took RM and which was burnt after the deceased was killed.
No written or oral submissions were made specifically in relation to this paragraph.
If the evidence in par 94 were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely whether there was a joint criminal enterprise as alleged by the Crown including SH's participation in it by buying the car and providing it to RM for use in carrying out the attack on the deceased and SH's consciousness of guilt in having done so. Thus, the evidence is relevant under s 55.
Paragraph 94 contains direct, observational evidence of instructions, actions and words spoken. The evidence is not relied upon to prove the existence of facts that can reasonably be supposed that the persons intended to assert by the various representations in that paragraph. The Crown seeks that it be admitted because it is relevant for a purpose other than proof of the asserted facts in that the words spoken and actions taken provide a basis for inferring the matters identified in the preceding paragraph.
Section 60(1) of the Evidence Act provides: "(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact."
Led for the non-hearsay purpose identified above, the evidence is relevant and admissible under the exception in s 60(1) to the hearsay rule.
Thus, par 94 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH.

RS 1678789 - par 101 - SH's statement that RM went too far and shot Johnny

RM objects to par 101 which contain a previous representation by SH that "[RM] went too far and shot Johnny". This is the admission referred to in par 58 of the Crown case statement.
RM relied upon the same submissions as were made in relation to par 72 which have been set out more fully above.
The Crown submitted that the representation by SH was tendered not as to the truth of the utterance but as to the fact that the utterance was made. From the fact of utterance was made, it was submitted that, without relying on the truth of what was uttered, it could be inferred that the joint criminal enterprise had been entered into. It was contended that, used in this way, the evidence was not being led for a hearsay purpose. The Crown relied upon the High Court's decision in Ahern at 93, as well as the observations by Whealy J in R v Baladjam [No 19] at [55], [62] and [70], among others.
If the evidence in par 101 were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely whether there was a joint criminal enterprise as alleged by the Crown including RM's participation in it by killing the deceased. Thus, it would be relevant and admissible unless excluded by another provision of the Evidence Act.
The relevant words in par 101 are, however, a previous representation made by SH. Under s 59 evidence of such representation is not admissible to prove the existence of a fact that it can reasonably be supposed SH intended to assert by the representation. In the case of par 101, it can reasonably be supposed that SH intended to assert that RM went too far and shot the deceased. Accordingly, it would not be admissible to prove that fact, in the absence of some exception to the hearsay rule.
Rejection under s 59 of the Evidence Act of such a representation that is a later narrative of past events and that is not an admission under s 81 is consistent with the High Court's decision in Tripodi where it was held at 7: "It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise."
The High Court went on to note, also at 7, that directions, instructions, arrangements and utterances accompanying acts may be "admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design." This latter basis of admissibility is now reflected in s 87(1)(c) of the Evidence Act, but it is not relied upon by the Crown in the present instance.
Accordingly, unless the Crown can establish some other basis of admissibility, the evidence in par 101 will be inadmissible against RM. At this point, the Crown relied on what was said by the High Court in Ahern at 93-4 (applied in R v Masters (1992) 26 NSWLR 450 at 461) and the comments of Whealy J in R v Baladjam [No 19], especially at [70].
In Ahern, it was held at 93: "In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other." (underlining added)
I do not understand the passage from the judgement of a Whealy J R v Baladjam [No 19] at [70], relied upon by the Crown, to establish a different approach. There, his Honour said: "… But with modern surveillance techniques, the evidence may capture the conspirators in the very act of their agreement. That would not be, in ordinary parlance, an act done in furtherance of the conspiracy. Sophisticated interception methods might show the conspirators discussing the agreement they had made a short time after its interception. A narrative of past events would not be an act in furtherance of the conspiracy. One conspirator might be overhead telling third parties about the agreement that had been struck. He might even name the other parties to the agreement. These conversations would not necessarily be acts in furtherance of the conspiracy (that might depend upon the relationship between the conspirator and the third party and other matters). But they would be admissible, as would the other examples I have given, in going to the existence and scope of the conspiracy. The last illustration, where the single conspirator named the others, would be admissible directly against the speaker. But it would also be admissible, for a non-hearsay purpose, against the others who were not present. It would be evidence which, when taken together with other evidence, would tend to show the existence and scope of the conspiracy and the identity of the participants in the conspiracy." (underlining added)
These passages appear to me to be reflected in the operation of ss 59, 60, 81 and 87(1)(c) of the Evidence Act. If the evidence in par 101 is relied upon to prove the truth of what is asserted, then it will not be admissible, unless it is an admission. If the evidence in par 101 can be admitted because it is relevant for a purpose other than proof of the asserted facts, a non-hearsay purpose, the exception to the hearsay rule in s 60 of the Evidence Act will be engaged and par 101 will be admissible.
In the present case as far as RM is concerned, the Crown is not relying on s 87(1)(c) of the Evidence Act and is effectively submitting that par 101 can be admitted for a purpose other than proof of the asserted facts. It is difficult, however, to see what that other purpose is. The only relevant purpose of SH's prior representation being admitted against RM appears to be to establish that there existed a joint criminal enterprise between SH and RM that involved RM shooting the deceased. If that is so, then SH's previous representation in par 101 is being admitted because it is relevant for the purpose of proof of the facts intended to be asserted by the representation and, consequently, it would not fall within the exception in s 60(1) and would be excluded under the hearsay rule.
The Crown's position appears to be that the jury could infer, without relying on the truth of the facts asserted in that representation, that RM was involved in the joint criminal enterprise with SH and that he shot the deceased as part of that joint criminal enterprise. But, if the truth of the assertions was not relied upon, it is difficult, if not impossible, to see how that inference could be drawn. The words are a narrative of a past event. The mere fact of utterance of the words, apart from their truth, does not, in my view, provide a basis for any inference relevant in these proceedings. In other words, if par 101 is not being used for a hearsay purpose, it does not appear to be relevant, within s 55 of the Evidence Act.
Similar reasoning was applied by N Adams J in R v Azari (No 7) [2018] NSWSC 1680 at [45]-[47] where her Honour concluded, at [47]: "In order for the jury to draw these inferences [that members of the shura planned to travel to Syria and become foreign fighters] from the relevant conversations between Baryalei and Alqudsi, it is not simply the fact that the words were spoken which is relevant but the proof of what was being asserted therein to show the actions and beliefs of the two men, and indirectly those of the accused as a member of the shura. The relevant inferences could not be drawn unless this was the case. I am thus satisfied that the calls are either inadmissible as hearsay evidence or, alternatively irrelevant if not in for a hearsay purpose."
If Whealy J's comments in R v Baladjam [No 19] referred to above are to be understood as applying, in the way that the Crown contends, so that the evidence in par 101 is admissible against RM, it appears to me to be inconsistent with ss 59 and 60 of the Evidence Act and the High Court's approach in Ahern.
Thus, the evidence in par 101 is either not relevant under s 55, if it is not relied upon to prove the facts asserted in SH's representation, or it is inadmissible under the hearsay rule in s 59, if it is relied upon to prove the asserted facts, because the exception to the hearsay rule in s 60 does not apply and the evidence does not amount to an admission by RM under ss 81 and 87(1)(c) of the Evidence Act.
On this basis, par 101 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

RS 1678789 - par 109 - SH's instruction to witness about what not to say to the police

RM objects to par 109 which contains evidence concerning a conversation, at which RM was not present, between SH and the witness about what the witness should say if he spoke to the police and in particular that he was not to say anything about the Subaru, RM or anything that SH and the witness had done in the days leading up to the deceased's murder.
As I understood it, the parties relied upon their submissions already made in relation to other paragraphs. The Crown contended that it was admissible as in accordance with its submissions concerning Ahern and Baladjam [No 19] referred to above, as it was not relied upon for a hearsay purpose.
The word "representation" is defined in Dictionary at the end of the Evidence Act as including an implied representation. Accordingly, the evidence excluded by s 59 includes evidence of a previous implied representation made by SH to the extent that it is relied upon to prove the existence of a fact that it can reasonably be supposed that SH intended to assert by that representation. Paragraph 109 appears to me to be relevant, within s 55, to the extent that the paragraph contains an implied representation by which SH intended to assert that he and RM were involved in the joint criminal enterprise involving the Subaru and the killing of the deceased. Notwithstanding the hearsay rule, the paragraph is admissible against SH as an admission, under s 81 of the Evidence Act. The exception to the hearsay rule established by ss 81 and 87(1)(c) was not said to apply in RM's case. The only exception implicitly relied upon by the Crown was that in s 60 of the Evidence Act.
The exception to the hearsay rule in s 60 does not, in my view, apply in RM's case. The purpose of leading this evidence against RM is in order to have the jury draw the inference that RM was involved in the joint criminal enterprise involving the Subaru and the killing of the deceased. The evidence in par 109 does not appear to be relevant for any other purpose concerning RM. Thus, par 109 would not be being admitted against RM because it is relevant for a purpose other than proof of a fact that it can reasonably be supposed that SH intended to assert by the implied representation. Accordingly, it does not fall within the s 60 exception to the hearsay rule.
In summary, as against RM, the evidence in par 109, is either irrelevant, to the extent that the truth of the implied representation is not relied upon, or is sought to be used against RM for a hearsay purpose and consequently the exception, in s 60 of the Evidence Act, to the hearsay rule does not apply. No other exception to the hearsay rule is said to be applicable in the case of RM.
For these reasons, par 109 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

RS1633171 - par 22 - SH admission that he got RM to do it and a couple of guys from Sydney came down

RM objects to par 22 which contains evidence of representations made by SH almost a year and a half after the deceased was killed that SH "got [RM] to do it, and a couple of guys from Sydney came down" and concerning why SH did it and that "It had nothing to do with me [SH] I didn't do it." These are the admissions referred to in par 53 of the Crown case statement.
In my view, these representations fall into the same category as those in par 101 of the statement of witness RS 1678789 of 24 August 2017 and par 22 which contains these representations is inadmissible against RM for essentially the same reasons, which it is not necessary to repeat here.
For these reasons, par 22 of the statement of witness RS1633171 of 27 April 2016 is inadmissible against RM.

RS 1591297 - pars 25 and 30 - SH's attitude to the deceased and reasons for it

RM and SH object to pars 25 and 30 which contain evidence SH's attitude towards the deceased prior to his death, because of statements made by the deceased concerning SH's son and because of SH's beliefs as to the deceased and Steve going around bashing people.
There was an indication in the written material before the Court that par 30 was objected to by SH on the ground that it was opinion evidence. No oral submissions were made on this topic.
The evidence in par 25 provides a background to par 26, to which objection has not been taken. Both pars 25 and 30 are relied upon by the Crown as establishing SH's motive in wanting the deceased killed. For the reasons given earlier in relation to pars 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017, the evidence in pars 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 is relevant, within s 55 of the Evidence Act.
The conversations are not relied on for the truth of what was asserted but for the fact that the words were uttered and the inferences that can be drawn from that fact. In relation, in particular, to par 30, this records a representation by SH made to the witness. If the evidence that these words were uttered was accepted, an inference could be drawn as to SH's state of mind going to motive. Thus, evidence of the previous representation is sought to be admitted for a purpose other than proof of an asserted fact and is admissible under the exception in s 60(1) to the hearsay rule. Further, the evidence in pars 25 and 30 does not appear to be, nor is it relied upon as, opinion evidence.
Accordingly, the evidence in pars 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 is admissible against RM and SH.

RS 1591297 - pars 71 to 87 - RM's admissions concerning killing the deceased and that he did it as a favour for SH

SH objects to pars 71 to 87 which contain the admissions by RM referred to in pars 44, 45 and 46 of the Crown case statement and material providing context and background to those admissions.
Paragraphs 77, 78 and 85 contain out of court representations by RM made more than 3 years after the deceased was killed not in the presence of SH. The evidence is mostly a narrative of past events with some comments on RM's present situation. Paragraph 82 contains a similar representation by RM identifying the "two blokes" who were with him when they went to Johnny's. Paragraph 84 contains references to the recording of the conversation summarised in par 85.
These representations and the recording of the representations referred to in pars 84 and 85 fall into the same category as par 101 of the statement of witness RS 1678789 of 24 August 2017 and are inadmissible against SH for essentially the same reasons given above in relation par 101 of that statement.
For these reasons, pars 77, 78, 84 and 85 of the statement of witness RS 1591297 of 2 August 2017 are inadmissible against SH. In so far as the recordings referred to in pars 86 and 87 contain similar representations they are also inadmissible against SH.

RS 1591297 - par 95 - recorded admissions by RM concerning the car

SH objects to par 95 which contains evidence relating to a conversation between the witness and RM which was apparently recorded using a listening device on 12 June 2016. This is the conversation referred to in par 47 of the Crown case statement and concerned the car used when the deceased was killed.
The reasoning above in relation to pars 77 to 87 of this statement is similarly applicable in relation to par 95 and establishes that par 95 is not admissible against SH.
Accordingly, par 95 of the statement of witness RS 1591297 of 2 August 2017 and the recordings of the conversation referred to in that paragraph are inadmissible against SH.

RS 1591297 - par 101 - RM's statement that SH close to being locked up for murder and SH should be told to go to Finland and keep his mouth shut

SH objects to par 101 which contains representations RM made when SH was not present, 4 years after the deceased was killed, to the witness to the effect that SH was close to being locked up for murder and other activities of SH as well as an instruction to the witness to tell SH to go to Finland and keep his mouth shut.
The reasoning set out above in relation to representations concerning the conduct of a co-accused and instructions given to a witness in par 109 of the statement of witness RS 1678789 of 24 August 2017 is similarly applicable to par 101 of this statement.
For those reasons, par 101 of the statement of witness RS 1591297 of 2 August 2017 is inadmissible against SH.

RS 1591297 - pars 102 and 104-106 - SH's conversations with witness concerning going to Finland and involvement of another person in the joint criminal enterprise

RM objects to pars 102 and 104-106 which contain conversations between the witness and SH, which took place 4 years after the deceased was killed, and which refer to a recorded conversation on 3 July 2017 between SH and the witness. RM was not present during these conversations.
The reasoning set out above in relation to par 101 of the statement of witness RS 1678789 of 24 August 2017 and in relation to similar conversations and recordings of conversations above, is applicable also in relation to pars 102 and 104-106 to the extent that they are sought to be admitted against RM.
For those reasons, pars 102 and 104-106 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversations referred to in those paragraphs are inadmissible against RM.

RS 1591297 - par 103 - RM's conversation concerning SH

RM objects to par 103 which contains evidence of a conversation between RM and the witness and refers to a recorded conversation on 3 July 2017 between RM and the witness concerning a conversation the witness had with SH. That conversation arose out of instructions RM gave to the witness as recorded earlier in par 101. RM has not objected to par 101.
The evidence in pars 101 and 103 is relevant under s 55 in that if it were accepted it could rationally affect (directly or indirectly) the assessment of the probability of the existence of facts in issue, including RM's participation with SH, in the joint criminal enterprise alleged. It is thus admissible unless excluded under s 59, no other basis of objection having been identified.
To the extent that some of the evidence in par 103, and the recording of the conversation, is evidence falling within s 59, it amounts to an admission made by RM and is admissible against him, under s 81 or is relied upon for a non-hearsay purpose and is admissible under s 60.
On this basis, par 103 of the statement of witness RS 1591297 of 2 August 2017 is admissible against RM.

Summary

In summary, the rulings are: 1. Paragraphs 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017 are admissible against RM and SH. 2. Paragraph 72 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM. 3. Paragraph 94 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH. 4. Paragraph 101 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM. 5. Paragraph 109 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM. 6. Paragraph 22 of the statement of witness RS1633171 of 27 April 2016 is inadmissible against RM. 7. Paragraphs 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 are admissible against RM and SH. 8. Paragraphs 77, 78, 84 and 85 of the statement of witness RS 1591297 of 2 August 2017 and the recordings of the conversation referred to in those paragraphs are inadmissible against SH. 9. Paragraph 95 of the statement of witness RS 1591297 of 2 August 2017 and the recordings of the conversation referred to in that paragraph are inadmissible against SH. 10. Paragraph 101 of the statement of witness RS 1591297 of 2 August 2017 is inadmissible against SH. 11. Paragraphs 102 and 104-106 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversations referred to in those paragraphs are inadmissible against RM. 12. Paragraph 103 of the statement of witness RS 1591297 of 2 August 2017 and any recording of the conversation referred to in that paragraph are admissible against RM.

Amendments 23 March 2023 - Publication restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2023

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