R v Omar

Exceptions to the hearsay rule

1. Clause 4 of the Dictionary in Sch 2 to the Act relevantly provides: Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if - … (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
2. It is clear that, where a person attends court but refuses to give evidence, the person is not available to give evidence within the meaning of cl 4(1): Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [15]-[16]; R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [83].
3. The relevant exception to the hearsay rule in the circumstances is therefore to be found in s 65 of the Act, which relevantly provides: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was - (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. Note - Section 67 imposes notice requirements relating to this subsection. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied - (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note - Section 67 imposes notice requirements relating to this subsection. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that - (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but - (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. ... (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends - (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages.

Notice under s 67

1. The Crown has not given any notice under s 67 of the Evidence Act.
2. No notice was given by the Crown because it was not known until Mr Ibrahim was called to give evidence on 29 March 2022 that he would refuse to do so. Although he had refused to answer questions at the Basha inquiry, arrangements had been made for him to confer with Mr Raed Rahal, the solicitor who had acted for him in relation to these proceedings and the events which gave rise to them since at least Mr Ibrahim's appearance before the Crime Commission in 2018. Subsequently, Mr Rahal appeared at the Court's request and informed the Court that he had spoken with Mr Ibrahim since he appeared at the Basha inquiry, and he had explained his rights and obligations to him. Mr Rahal expressed concern about whether, because of drug and mental health issues, Mr Ibrahim had comprehended the advice that had been given to him. Mr Rahal did not advise the Court that Mr Ibrahim would refuse to give evidence if called at the trial.
3. When Mr Ibrahim left the Court, after refusing to give evidence at the trial, the Crown immediately indicated that it would seek to tender the material, the subject of the present judgment. The matter was adjourned to the following day for the application to be heard. At the hearing, Ms Cunneen SC for the accused did not indicate any opposition by reason only of the failure to serve a notice, nor any prejudice that it had not been done.
4. Subsequently, after the conclusion of the hearing of the present application, further submissions on behalf of the accused were forwarded, without any leave, to my Associate. In those submissions, complaint was made for the first time about the unfairness of the lack of a notice. It seems, however, that the making of the further submissions was intended to overcome any such unfairness. I have had regard to those further submissions in my determination of this matter.
5. I have taken into account the matters in s 192(2) of the Evidence Act, and in particular whether there is any prejudice to the accused in permitting the evidence to be adduced without notice having been given. It is not suggested that the accused was prevented, by the lack of a Notice, of adducing evidence to meet what was contained in the transcripts from the Crime Commission. In fact, the accused indicated that he would seek to tender other parts of the same transcripts. In principle, that tender was not opposed by the Crown. In my view, leave should be given to the Crown pursuant to s 67(4) of the Act.

The construction of s 65

1. Ms Cunneen SC took what was, in effect, a preliminary point, namely, that the provisions of s 65(2) were not available in the present case because sub-s (3) applied in the circumstances. She submitted that because Mr Ibrahim had given evidence in an "Australian or overseas proceeding", had not been cross-examined by the accused, and where the accused did not have a reasonable opportunity to cross-examine him, the hearsay rule applied.
2. The Crime Commission falls within the definition of "Australian court" in the Dictionary to the Act, and "Australian or overseas proceeding" was defined to mean a proceeding in an Australian court or a foreign court. In that way, Ms Cunneen submitted, there was no occasion to consider s 65(2), because the hearsay rule applied by reason of the circumstances falling within s 65(3).
3. There are a number of difficulties with this submission. First, in Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316, Campbell JA said at [34]: Section 65 is concerned with the conditions on which first-hand hearsay can be adduced if the person who made the previous representation is not available to give evidence about an asserted fact. Section 65(2) provides one set of conditions for admissibility of evidence in those circumstances, while section 65(3) provides an independent set of conditions in which such evidence might be admissible.
4. In R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286, the Crown sought to tender evidence of a witness given in proceedings before the Independent Commission Against Corruption (NSW) in reliance on ss 65(1) and (3) of the Evidence Act. It was submitted for one of the accused who opposed the admission, that the provisions of s 65(2)(c) and (d) operated as a further precondition to admissibility under s 65(3).
5. Justice Fullerton said: [7] It is clear that ss 62 and 65(1) of the Evidence Act operate to relax the exclusionary effect of the hearsay rule in relation to an assertion of fact by a person who had personal knowledge of that fact. In my view, it is equally clear that ss 65(2) and 65(3) provide an independent basis for a party seeking to avail itself of the operation of s 65(1) where the person who made the previous representation is also, relevantly, unavailable to give evidence. [8] In Thomas v The State of New South Wales [2008] NSWCA 316; 74 NSWLR 34, at [34], Campbell JA was of the same view, albeit expressed obiter dictum. Where s 65(2) is concerned with a previous representation by a person who saw, heard or otherwise perceived the representation being made, s 65(3) is concerned with a different set of circumstances, namely where the previous representation is made in the course of a person giving evidence in "an Australian or overseas proceeding". It is only when the previous representation that asserts the relevant fact sought to be proved is one that is given by a person who saw, heard or otherwise perceived the representation being made that there is an additional concern with the circumstances in which the representation was made, with those concerns then operating as a precondition to the admission of the evidence as an exception to the rule against hearsay. [9] Each of ss 65(2)(a)-(d) is concerned with the reliability of the circumstances in which each of the relevant facts sought to be proved (see Sio v The Queen [2016] HCA 32; 259 CLR 47 at [55]-[57]). Those same concerns (perhaps self-evidently) do not apply where the previous representation is given in the course of the person giving evidence in an Australian or overseas proceeding, and where the party against whom the evidence is sought to be adduced cross-examined the person giving evidence concerning that representation or had a reasonable opportunity to do so. Although Campbell JA did not say so expressly, his analysis in Thomas at [35] of the operation of s 65(3), where he emphasised that the operation of the section preserves, so far as possible, the element of a fair trial in which the opportunity to cross-examine those who give evidence against the party is an important feature, and that s 65(3) only operates where a person has given evidence in an earlier proceeding, exemplifies the difference in operation of the relaxation of the exclusionary rule against hearsay provided for in ss 65(2) and 65(3) of the Evidence Act. [10] That being so, I am of the view that the Court need only be concerned with the Crown's application to admit the evidence under the precondition provided for in ss 65(3)(a) and (b).
6. Secondly, s 65(3) does not apply in the circumstances of the present case in any event. Mr Ibrahim was not cross-examined by the accused before the Crime Commission, nor did the accused have the reasonable opportunity to do so. Sub-section (3) is not engaged in those circumstances, but that does not mean that the hearsay rule applies in such circumstances. Sub-section (3) provides for circumstances where the hearsay rule does not apply. It does not preclude the evidence being adduced if the circumstances do not exist. A comparison with sub-s (4) highlights the point, because that sub-section precludes evidence of previous representation being given against one of a number of defendants who did not cross-examine or have the opportunity to cross-examine the maker of the statement sought to be admitted.
7. Thirdly, a similar submission was rejected in Suteski: [98] An ancillary submission was advanced to the effect that, had the legislature contemplated the possibility of the admission into evidence of an ERISP, or of out of court representations, made by a co-accused in the position of Sakisi, without the accused having had the opportunity to cross examine their maker, then it would have made express provision for that to occur, or that it would have, at least, earned a mention in the Australian Law Reform Commission Report. [99] I am not persuaded that the Act should be read down on any such assumption. By reference to ordinary rules of statutory interpretation, where a witness answers the description of an "unavailable person" then s 65 should apply to its full effect. [100] This follows from the very precise and careful scheme of the Act, which provides for specific exceptions to the Rules otherwise stated, as well as for the mandatory or discretionary powers of exclusion contained in ss 135 to 137. [101] If s 65(2) was to be read down in the way suggested, then that would deprive it of all utility, since it assumes that the maker of the representations is not available for cross-examination. As mentioned later, however, I would regard that circumstance as a relevant consideration when the tender is considered in the light of sections 135 and 137 of the Act.
8. In my opinion, the submission that the matter is governed only by s 65(3) should be rejected. It is necessary, therefore, to determine whether the portions of the transcript sought to be adduced satisfy the requirements of sub-s (2)(d). In doing so, it is important to remember that in Sio, the High Court said at [56]-[58] that one must identify the particular representation or representations rather than adopting a compendious approach to the material. Nevertheless, the Court said at [59] that Wood CJ at CL is correct in Suteski in saying that the representations should be considered in context, so as to determine whether, when read together, they "constitute an admission or answer against interest". The Court also said at [71]: When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made.
9. In relation to the requirement of s 65(2)(d)(ii), the Court said at [64] that the sub-section requires a trial judge "to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character".
10. The Court said further: [67] While the circumstances which satisfy the condition in s 65(2)(d)(i) may in some circumstances also tend to satisfy the requirement of likely reliability in s 65(2)(d)(ii), that will not necessarily be so. … [69] In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that: "evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby." [70] That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.

The representations

1. The Crown seeks to lead evidence of seven representations. I shall deal with each in turn.

Omar was one of his [Mr Ibrahim's] closest friends in April 2012. He would see Omar daily for "probably a coupla hours or something". He and Omar were part of a large group that used to hang out in Schofield Street, Riverwood.

1. The evidence sought to be adduced in relation to this representation is as follows: Q. …So was he [Omar] one of your closest friends in April 2012? A. April 2012? Q. Yes? So at the time that Kevin Safwan was shot? A. Yeah we were friends at the time, yes. Q. Okay. Was he one of your closest friends? A. He was a friend but not like - I've got a lot of close friends at that time. Q. How often would you see him in April 2012? A. Ah, probably daily. Q. Yes? A. Yeah. Q. Yes? A. Probably a coupla hours a day or something. Q. Okay. And at that time, did you see anybody else daily, any other friends daily? A. Yeah I was seein' a lot of people daily yeah. Q. Would you all socialise together? A. Yes we would, yeah. Q. And who was part of that group? A. There's heaps like heaps of us um ... q. Okay. So who was part of the group that you would socialise with Omar with on a daily basis? a. Oh - it'd be like ah my brothers would um, my brothers um Abdul El-Rozz, there's Helal, there's... MS CINQUE: Sorry what were those names? A. Ah Helal, ah Abdul, ah Mario, there's like Ali, ah Dimitri, John, ah there was a lot, I can't really remember all their names. MS HINSHELWOOD: And you would all socialise together in a big group? A. Yes we would, yes. Q. And where would you do that? A. In the factories. There's a factory next to, I think it was Schofield Street. Q. Yes? A. Yeah. Q. And did somebody own that factory or did they rent the factory? A. No, we just hanged out there, we used to hang out there.
2. It seems to me that the material in the passage can only be seen as "representations which form part of the context" in which the other representations were made. It the jury was unaware of the nature of the relationship between Mr Ibrahim and the accused, and for that matter the other persons mentioned, some or all of the other representations would not be fully understood. This representation is not put forward for any particular value that it has in itself. It seems scarcely likely to be contentious in any event.
3. This evidence may be adduced.

He [Mr Ibrahinm] was in Schofield Street on the night of the shooting with Omar and another couple of boys, and that local police came past and spoke with them

1. The evidence put forward in support of this representation is as follows: Q. Had you been there before the shooting? A. Yeah I was there before the shooting, yeah. Q. Okay. When you were there… A. Yeah. Q. …before the shooting… A. Mm. Q. …had the Police been there? A. Yeah, I think they were there. Q. Okay. So you mean like Local Police? A. Yeah. Q. Okay. So you remember that? A. I remember I think they came like a coupla hours before the incident, somethin' like that. Q. Okay. When they came, where were you? Where were you and whoever you were with? Were you in the outside of the house, inside the house? A. We were out in Schofield Street, where ... Q. Mm-hm? A. ... we hang out and - in the factories. Q. Yes? And what did the Police say to you? A. Oh, I can't really remember but - but um, I think they said something like ah they know something's gunna happen or... Q. Mm-hm? A. ... along them lines, I can't really remember. Q. Yes? A. To be honest with you. Urn, and they suggested that I go home. Q. Yes? A. And get out of here because I think they must've overheard or... Q. Yes. A. ... someone must've told 'em or I'm not too sure. Q. Okay. A. That's the honest truth. Q. Now who was with you an Omar when you were spoken to by the Police? A I think it was Helal, um Helal - oh sorry, um Helal ah - oh it's been that long I really can't remember like to - there was a coupla boys but... Q. Yes? A. ... the officer - I think the Darwiches. Q. Mm-hm? A. I think ah Abdul, Ibro, one of 'em. Q. Yes? A. Um [SIGHS] - it's been that long I got a bad memory and ... Q. That's okay. A. ... like ... … Q. Do you remember where you first met him? A. That night? Q. Yes? When you get back? A. I think it was in Schofield Street. Q. Mm-hm? And who were you with? A. Like I said I think it was Helal, um the Darwiches, Ibro or Abdul ah… … Q. Okay. Now the Police record of speaking to Omar before the shooting is at quarter past eleven in the evening. A. Mm. Q. Okay? But their records show that they spoke to Omar - and they say outside of Bell Street, which is his address? A. Yeah. Q. Was that the occasion you were there? A. Oh when the Police spoke to Omar? Q. Yes? A. Um - what time was that? Q. Quarter past eleven. A. Nah I wasn't there. Q. Why do you say that? A. 'Cause I remember a hundred per cent I wasn't there at that time.
2. When viewed in the light of some of the later extracts put forward in support of some of the other representations, the evidence in these extracts can be seen to be against the interests of Mr Ibrahim in terms of s 65(7) (a) and (b). First, his presence with the accused and the others, at the time after the phone calls referred to in the later representations, tends to show that Mr Ibrahim has committed an offence, either of being an accessory before the fact, or of having knowledge of the commission of a serious offence. Mr Ibrahim confirmed during the examination that he had a concern that he might have been an accessory before the fact.
3. Secondly, this evidence tends to damage Mr Ibrahim's reputation, because it demonstrates that he had earlier told lies about whether he was present on the street with the accused before the shooting.
4. In R v El Masri [2010] NSWSC 1277 Hoeben J said at [19]: … Regardless of the state of a person's reputation at any given point in time, proof that such a person has told lies on an earlier occasion must "tend" to damage that person's reputation even if the reputation was already in a damaged state. The word "tend" refers to a possibility not an actuality.
5. Earlier at the hearing before the Crime Commission on 11 July 2018, Mr Ibrahim, when asked if he was with the accused on the night of the shooting said: Ah, I can't remember but I - ah we were with each other I think early in the day, I dunno. I can't remember what time till but yeah. He then proceeded to give evidence of arriving home in a car with his mother and finding the street blocked off following the shooting. He gave other evidence which, on its face, seemed implausible to those conducting the examination.
6. The Commission then said that there would be a short adjournment to enable Mr Ibrahim to confer with his lawyer, with counsel assisting adding: I already know that you have lied in your evidence today. When the hearing resumed, following a further warning (set out later at [44]), the evidence set out above at [33] was given.
7. The accused submitted that this evidence, and the evidence in support of the other representations was not given against Mr Ibrahim's interests; rather, at all times he was endeavouring to minimise his involvement and deflect blame to others, particularly the accused. In that way his evidence was self-serving. A similar argument was rejected in Suteski where Wood CJ at CL said at [94]: It was also submitted that, in view of Sakisi's position as an accomplice, and the arrest of his girlfriend, such statements as he had made in the ERISP may have been self-serving, or intended to serve her interests. Upon that basis, it was argued that the representations could not be held with any certainty to be against his interests. His Honour rejected this argument, holding that despite any mixed motives which he may have held, any answer which tended to be incriminatory of him was one made against interest. Again, I am of the view that this aspect of his Honour's reasoning was correct, and that the argument to the contrary, repeated on appeal, has no basis. It similarly follows from the commonly accepted meaning of a statement against interest.
8. It was also made clear in Suteski at [92] and [93], that statements against interest had to be viewed in context, so that while some statements when read alone would not be found to be against interest, when read together with others, they constitute an "admission or answer" against interest.
9. I am satisfied, therefore, that the above evidence of his presence with the accused before the shooting was against the interests of Mr Ibrahim.
10. In relation to s 65(d)(ii), the accused submitted that there were so many inconsistencies in Mr Ibrahim's evidence to the Crime Commission that the evidence sought now to be adduced could not be considered to be reliable. He submitted that the unreliability was shown by Mr Ibrahim's inability to remember many of the matters put to him.
11. I am satisfied that the circumstances in which the representation was made make it likely to be reliable. Mr Ibrahim was giving evidence under oath in circumstances where he had been told that it was an offence to give false or misleading evidence.
12. Further, following the adjournment granted to enable Mr Ibrahim to confer with his lawyer (at [38] above), upon the resumption of the hearing, and before any further evidence was given, the following was said: Q. Alright? So the Commissions is always concerned to ensure that what is said here goes no further than here and the fact that it can't be used against you. If you tell me that you murdered Kevan Safwan, nothing I can do about it or anyone can do about it. A. Okay Q. Because you tell me here. If the evidence is put together outside of this hearing room, what's called circumstantial evidence, then you could be prosecuted for involvement in the crime. A. Yes Q. But you can't be prosecuted for anything you tell me here and it doesn't go past this room. A. Yes ma'am. Q. Alright? You understand? A. Yeah Q. And, you weren't prosecuted on the last occasion and Ms Hinshelwood has spoken to you about that and said you know forget about that, what happened on the last occasion, but tell the truth now, otherwise you can expect that there will be repercussions arising out of today if you keep giving false evidence. Do you understand that? A. Yes ma'am. Yes.
13. Following that exchange, Mr Ibrahim gave the evidence set out above (at [33]) where he admitted being with the accused before the shooting. In the light of what was said by counsel assisting the Commission and the turnaround in Mr Ibrahim's evidence immediately afterwards, I am satisfied that it is likely that the evidence is reliable.
14. The accused submitted that Mr Ibrahim should be regarded as an accomplice, and in those circumstances his evidence should be considered to be unreliable. Reference was made in that regard to s 165(1)(d) of the Act. I accept that, if requested at trial, a judge would need to give a warning that Mr Ibrahim's evidence may be unreliable because he might be supposed to have been criminally concerned in the events giving rise to the proceeding. However, that is only one consideration on the present application. Whilst it would be the jury who would consider if Mr Ibrahim's evidence generally is reliable, the task I have is to consider the reliability of the particular representations in the circumstances in which they were made. As the High Court said in Sio at [72]: Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v R, s 65(2)(c) and (d) and s 85 provide "[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence". It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial. (Citations omitted)
15. The fact that Mr Ibrahim's evidence before the Commission might, when seen as a whole, appear to be unreliable does not focus on the proper inquiry. The proper inquiry is whether the particular representation is likely to be a reliable in the circumstances it was made. Those circumstances are set out at [43] to [45] above. That is so, notwithstanding Mr Ibrahim might be supposed to be criminally concerned in the events. Further, he has never been charged as a co-offender.

In relation to the phone call of 8:39pm on 21/04/2012: the people talking in the call were him [Mr Ibrahim] and Omar. Omar told him previously that he had hidden a gun in the garden in the front of his (Ibrahim's) house earlier that day. When Omar asked, "Can you call Hamzy and tell him to give me the shoes please?", he knew Omar wanted the gun.

1. The evidence sought to be adduced in relation to this representation is as follows: AUDIO OF TELEPHONE INTERCEPT DATED 21st APRIL 2012 AT 08:39:44 PM PLAYED … MS HINSHELWOOD: Can you identify the people in that call? A. I think that was my brother, was it? Q. Can you identify anybody else in the call? A. Omar. Q. Yes, And anyone else? A. Is that my voice? Q. Well he asks to speak to Sleaze? A. Sleaze, yeah, then it must of been me, yeah. … Q. Now when he calls you and speaks to you ... A. Mm. Q. ... did you hear what he asked you to do? A. He wanted a pair of shoes, he's goin' out. Q. And in fact he says can you call Hamze and tell him to get me the shoes please? A. Yeah. Q. Who's Hamze? A. Hamze's my younger brother. Q. Okay. And what did Omar want, actually, from Hamze? A. A pair of shoes. MS CINQUE: Are you sure about that? A. What did he want? … Q. But you had something that you gave to Omar? A. I didn't give it to Omar. It was next to my house. Q. Okay. A. That thing that he was... Q. What was it? A. It was - I think it was a gun. Q. Mm-hm? And when you say it's next to your house, whereabouts next to your house was it? A. Oh yeah, I think he had stashed it in the gardens. Q. Mm-hm? A. In front of my house. Q. Okay. And was it in a - in something? A. It was in a like a shoe box, bag like yeah. Q. Mm-hm? A. Yeah. Like a bag. Q. And so when he asked you for the shoes, you knew what he was talking about? He wanted the shoe box? A. Yeah. Q. Okay. MS CINQUE. Sorry when you - can I just get it clarified? You say - you said a shoe box but then you held your hand like this as if you were holding on ... A. You know how shoes come in bags sometimes? Q. So you're talking about a shoe bag is that right? A. Yeah like a shoe box - bag. Q. And then it has a drawstring at the end? A. Yeah, that's right, yeah. Q. Is that what it was? A. Yeah, pretty much, yeah. MS CINQUE: Yes, thank you. MS HINSHELWOOD: When did Omar put the gun there? A. Oh I really can't remember. It's - maybe, like oh - that day or the day before. Q. Mm-hm? A. I think it was that day. Q. Okay, A. I really can't remember but. Q. Were you there when he hid the bag? A. No I wasn't there when he hid that bag. Q. Okay. Was Hamze there when he hid the bag? A. Nuh. He was ah, he was with um - the only reason he asked for Hamze is because it was in front of my house. Q. Yes? A. That's the only reason. So if my mum came out or anything like that. Q. Yes? A. That's the only reason he asked for Hamze. Q. You must've known that he'd put it there though? A. I didn't know it was, like what do ya mean like how ... Q. Because he says to you and I'm not trying to trick you. A. Yeah. Q. He says to you, tell him to get me the shoes. A. Mm. Q. So he knew that you knew what he meant? A. Yeah. Q. Yes? And obviously Hamze would know what you meant when you said get the shoes? A. Hamze was only like 16 at the time so ... … Q. Okay. When did Omar tell you that he'd put the bag there? A. Ah it wasn't me specifically, it was like there was a few people like… Q. Yes? A. ... just like what I said that, when we used to hang out and just like you know? … MS HINSHELWOOD: What did Omar say to you about the bag? A. What he said to me about the bag? Not to hide it for him or anything like that. He - he done it himself. Q. Yes? Did he say where it was? A. Did he tell me where it was? Q. Yes? A. He goes in the street somewhere, not exactly pinpoint it.
2. This representation is clearly against Mr Ibrahim's interest, because it demonstrates that he had knowledge that the accused was seeking the gun, and that the accused had secreted it in or near the front of the property where Mr Ibrahim lived. The evidence also differed from his earlier account that "shoes" meant shoes. His agreement that it was or was likely to have meant a gun showed again that he had lied in his earlier evidence.
3. I am satisfied of the reliability of the evidence for the reasons in relation to representation 2 above. In addition, the playing of the recorded telephone call indicated to Mr Ibrahim that the Commission had evidence of his involvement independent of anything he might say: El Masri at [27].
4. This evidence may be adduced.

He [Mr Ibrahim] phoned his brother, Hamze, and told him that Omar was coming to collect the gun. He told his brother to give Omar the gun.

1. The evidence in support of that representation is as follows: Q. Yes? When you spoke to your brother did you have to direct him to where the shoe bag was? A. I think Omar went and got it from where it was. Q. Okay. MS CINQUE: That's something that I just wanted to clarify with you actually indeed. Did you speak to your brother Hamze about the shoes? A. No. Q. After Omar had rung you? A. UM, about Ham - nuh. Q. Right so ... A. I called him and I told him that, I think that Omar was coming. Q. Right? A. And to give him the shoe box um but I meant like if - if mum walks out or anything like that, just to, 'cause I didn't want my mum like knowin' anything just er... Q. Right, but how was Hamze going to know where the shoe box or bag was? A. What do you mean how was he gunna know? MS CINQUE: Yes Ms Hinshelwood. MS HINSHELWOOD: Did you - I was going to say did you understand that Omar would meet Hamze at his house - at your house? A. Mm, can't really remember if he met him or not.
2. This representation is in the same category as representation 3 in terms of its being against the interest of Mr Ibrahim, because it shows his continuing involvement about the gun sought by the accused.
3. I consider that it is likely to be reliable for the reasons given for both representations 2 and 3.
4. This evidence may be adduced.

In relation to the phone call of 8:41pm on 21/04/2012: the people talking on the call were him [Mr Ibrahim] and Omar. After the call he returned to Riverwood with Helal.

1. The evidence in support of this representation is as follows: [AUDIO OF TELEPHONE INTERCEPT DATED 21st APRIL 2012 AT 08:41:04 PM PLAYED] MS HINSHELWOOD: Can you identify the people in that call? A. Is it, me and Omar? Q. Yes. And you offer to go and see him? A. Mm. Q. And he says no, no, don't worry about it? A. Mm. Q. But you come back anyway don't you? A. [PAUSE] I think we did, yeah. Q. Yes? Do you remember who you came back with? A. That's a good question, I dunno. MS CINQUE: Sorry you're just mumbling a little bit there. A. I'm saying that was a good question. I'm tryin to remember who it was. Ah ... Q. That's fine. Just take your time. A. Was it Helal I think? MS HINSHELWOOD: Okay. A. Helal.
2. This evidence satisfies the requirements of s 65(2)(d) for the reasons given for representations 2 and 3.
3. This evidence may be adduced.

In relation to the phone call of 8:42pm on 21/04/2012: the people talking on the call were him [Mr Ibrahim] and Omar. In that call when he said, "He's at my sisters. He's gonna be there, he said it will be half an hour", he was referring to his brother Hamze.

1. The evidence in support of this representation is as follows: [AUDIO OF TELEPHONE INTERCEPT DATED 21st APRIL 2012 AT 08:42:44 PM PLAYED] MS HINSHELWOOD: Can you identify the people in that call? A. I think that was me and Omar. Q. Okay. And you say that you'd spoken to him and he was at your sister's place and won't be back home? A. Mm. Q. Who are you talking about? A. I think that was talkin' about my younger brother I think. … Q. … So you call Hamze - you'd called Hamze? A. Mm. Q. To arrange the shoes but he wasn't there? A. Mm. Q. And you were coming back? A. Mm. MS CINQUE: So is that a yes? Q. Yes it is, yeah it is yes. MS HINSHELWOOD: You say we will be back? A. Yeah. Q. Who were you travelling back with? A. Like I said I think it was ah, Helal. Q. Now do you remember how you travelled back to your house with Helal? Were you driving? A. Yeah, I think we were in the car, yes. Q. Do you remember what car you were in? A. No I don't.
2. This evidence satisfies the requirements of s 65(2)(d) for the reasons given for representations 2 and 3.
3. This evidence may be adduced.

In relation to the phone call of 10:05pm on 21/04/2012: the people talking in the call were him [Mr Ibrahim] and Omar.

1. The evidence in support of this representation is as follows: [AUDIO OF TELEPHONE INTERCEPT DATED 21st APRIL 2012 AT 22:05:39 PM PLAYED] MS HINSHELWOOD: Could you identify the people in that call? A. I think that was me and Omar, was it? Q. Okay.
2. This representation falls into the same category as representations 2 and 3. Although the evidence only concerns the identification of the persons in the phone call, that must be seen in the context of the other evidence. This call occurred at 22.05 between the accused and Mr Ibrahim, a little under two hours before the shooting, and in circumstances where Mr Ibrahim admitted to being in the accused's company before the shooting. For the reasons given in relation to representations 2 and 3, the requirements of s 65(2)(d) are satisfied.

Section 137

1. It is then necessary to consider s 137 of the Evidence Act.
2. The evidence sought to be adduced tends to show that the accused had, seemingly, to the knowledge of Mr Ibrahim, secreted a gun, in or near the property where Mr Ibrahim lived. It tends to show that the accused was requesting from Mr Ibrahim that the gun be provided to him at that time. It also shows that Mr Ibrahim was present with the accused at the scene of the killing, in the hours leading up to the killing. No other evidence places the accused at that location at that time. Such evidence has significant probative value when the deceased was killed within four hours of the phone call being made in which the accused sought the gun from Mr Ibrahim.
3. Ms Cunneen for the accused, pointed to a number of what were said to be significant aspects of prejudice from this evidence. The first was the inability to cross-examine Mr Ibrahim about this evidence. The second was that the evidence represented the only evidence in the case where someone was asking for a gun, in circumstances where the deceased was shot. The particular prejudice associated with the second aspect was said to be that the jury was not likely to know about the prevalence of firearms in particular parts of the community and within sub-groups within the community. The jury was likely to jump to the conclusion that guns were rare and difficult to get. In that way, they would too readily reach the conclusion that because this was the only evidence about a gun being requested, that must mean that it was the accused who shot the deceased.
4. Thirdly, Ms Cunneen submitted that the evidence does not establish that the accused in fact recovered the gun from where it was secreted.
5. Finally, she submitted that the impermissible use to which the jury was likely to put the evidence was to elevate it, to close the substantial gaps in the Crown case. In that regard, Ms Cunneen pointed to how little evidence there was against the accused or anyone else. There was a danger, Ms Cunneen submitted, that the jury would reason that, as no one else at, or leaving, the scene was apprehended with a gun, then this must be the gun that was used by the accused to shoot the deceased.
6. In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J said at [91]: Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out: "The prejudice to which each of the sections [s135, s136 and s137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way."
7. In Suteski, Wood CJ at CL said: [116] As is now well established, the prejudice to the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: R v Lisoff [1999] NSWCCA 364; and see also R v Lockyer (1996) 89 A Crim R 457 at 460, Papakosmas v The Queen (1999) 196 CLR 297 at para 91 and R v Serratore (1999) 48 NSWLR 101 (at 109). Dunford J there said that evidence is of this character, where it "… has only a slight probative value, but which carries with it a probability that it will be misused by the tribunal of fact in a way logically unconnected with the issues in the case". [117] There must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324.
8. In relation to the inability of the accused to cross-examine Mr Ibrahim, it must be accepted that that amounts to some prejudice which will be suffered by the accused. However, the submission by Ms Cunneen that the opportunity to challenge this evidence by cross-examination is so fundamental that s 137 should exclude the evidence should be rejected.
9. The very reason that consideration is being given to admitting the evidence pursuant to s 65(2) is because no cross-examination or opportunity for cross-examination occurred: Sio at [60]; Suteski at [98] to [101]. If it had occurred, s 65(3) would have permitted the evidence to be adduced. The limitations in s 65(2) ("under a duty", "unlikely that the representation is a fabrication", "highly probable that the representation is reliable", "likely that the representation is reliable"), are partly designed to deal with the fact that the material sought to be adduced will invariably not have been cross-examined. That is not to say that the fact of no cross-examination ceases to be of relevance for the purpose of s 137, but it seems likely that more would be needed in terms of prejudice, particularly where the probative value of the evidence is so high.
10. The second concern (it being the only evidence of anyone asking for a gun) seems to be based on the unlikely premise that the jury was not likely to know about the prevalence of firearms within the community. I can take judicial notice of the fact that in the last 8 to 10 years in Sydney there have been a significant number of shootings, with a number of them resulting in the death of the victims. These shootings are publicised as involving internecine disputes between crime figures and crime families.
11. In any event, it is difficult to see how the jury would misuse evidence that a few hours before the deceased was shot in Bell St, Riverwood, the accused who lived at that location was asking Mr Ibrahim, who also lived nearby that location, to retrieve a gun which had been secreted in that location. The fact that this is the only evidence in the trial (if that be the case) of a person asking for a gun, does not mean that the evidence is likely to be misused.
12. In relation to the third concern, it will no doubt be pointed out to the jury on behalf of the accused that there is no evidence that that gun was retrieved and used. But the absence of that evidence does not result in prejudice.
13. Finally, this is a circumstantial case. The jury will, no doubt, be asked by the Crown to draw certain inferences from the conversations involving the gun, the timing of the conversations, and the fact that a gun was used to kill the deceased. That would be a legitimate submission. In a circumstantial case, there are always gaps which need to be closed. It is difficult to see how the jury would misuse the evidence, either because it is the only evidence about a gun and the accused together, or because inferences could be drawn to close gaps in the case.
14. The jury will be given warnings about the hearsay nature of the evidence, and its being untested by cross-examination, and about the potential unreliability of evidence from a person criminally concerned in the events. The sort of directions which might be given are set out in Suteski at [130] and [131]. In addition, directions will be given about the proper way to draw inferences.
15. I do not consider that there is unfair prejudice to the accused by the adducing of the evidence. If there is a danger of unfair prejudice, I do not consider that such prejudice outweighs the significant probative value of the evidence.
16. Ms Cunneen pointed to certain passages in the Crime Commission evidence which are not sought to adduced, and which she seemed to suggest ameliorated the effect of the material sought to be adduced. If that is so, some of the prejudice brought about by inability to cross-examine can be dealt with by the defendant seeking to adduce those other portions of the Crime Commission evidence either by agreement with the Crown or under s 65(8).
17. I make the following order: The hearsay rule does not apply to the evidence of the seven representations contained in paragraphs [30], [33], [48], [52], [56], [59], [62] above.

Amendments 19 April 2022 - 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: 19 April 2022