//
[2025] NSWDC 144
General information, not legal advice.
District Court of NSW
2025-04-24
Fitzsimmons SC DCJ
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Parkes [2025] NSWDC 144
Hearing dates: 7-10 April 2025, 14 April 2025, 16 April 2025
Date of orders: 24 April 2025
Decision date: 24 April 2025
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision: [190] I enter the following verdicts:
(1) On Count 1, break and enter into a dwelling house and committing a serious indictable offence therein in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act, I find the accused NOT GUILTY. To the extent that the Crown relies on the statutory alternative, the accused is found NOT GUILTY.
(2) On Count 2, robbery armed with an offensive weapon in circumstances of aggravation, contrary to s 97(2) of the Crimes Act, I find the accused NOT GUILTY. To the extent that the Crown relies on the statutory alternative, the accused is found NOT GUILTY.
(3) On Count 3, robbery in company, contrary to s 97(1) of the Crimes Act, I find the accused NOT GUILTY.
(4) On Count 4, attempt to discharge a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(b) of the Crimes Act, I find the accused NOT GUILTY.
Catchwords: CRIME — mental health – accused not fit to be tried — special hearing – judge alone trial
CRIME — violent offences — armed robbery — offensive weapon — aggravated robbery — in company
CRIME — violent offences — discharge firearm with intent to cause grievous bodily harm
CRIME — complicity — joint criminal enterprise — extended joint criminal enterprise
CRIME — property offences — break, enter and commit serious indictable offence — circumstances of aggravation
EVIDENCE — identification evidence — unreliable evidence – visual identification – voice identification – inconsistent identification evidence – incorrect identification of accent
EVIDENCE — witness evidence — warnings — unreliable evidence
EVIDENCE – ERISP by accused – Liberato direction
EVIDENCE – alibi evidence adduced by Crown
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited: Dyers v The Queen [2002] HCA 45
Fleming v R (1998) 197 CLR 250
Huynh v The Queen [2013] HCA 6
Lehrmann v Network Ten Pty Limited [2024] FCA 369
May v R [2012] NSWCCA 111
Youkhana v R [2015] NSWCCA 41
Category: Principal judgment
Parties: Crown, Parkes
Representation: Crown: D Carnell
Defence: A Chauvet
File Number(s): 2022/00158614
The accused Andre Parkes (also known as ‘Drey’ or ‘Dre’) is charged with four offences as follows: –
Count 1: Break and enter into a dwelling house and committing a serious indictable offence therein in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act 1900 (NSW) (Crimes Act);
Count 2: Robbery armed with an offensive weapon in circumstances of aggravation, contrary to s 97(2) of the Crimes Act;
Count 3: Robbery in company, contrary to s 97(1) of the Crimes Act; and
Count 4: Attempt to discharge a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(b) of the Crimes Act.
All the offences were alleged to have been committed during an incident commonly referred to as a home invasion.
Mr Dion Carnell, solicitor advocate appeared on behalf of the Director of Public Prosecutions. Ms Amarande Chauvet appeared on behalf of the accused.
On 5 February 2024, Her Honour Judge Herbert found that the accused was not fit to be tried due to a mental health impairment pursuant to s 36 of the M**ental H**ealth and C**ognitive I**mpairment F**orensic P**rovisions A**ct 2020 (NSW) (MHCIFP Act). Further Her Honour was satisfied that the accused would not become fit to be tried for the relevant offences pursuant to s 53 of the MHCIFP A**ct.
The accused is prosecuted by way of special hearing in accordance with the procedure provided in s 56 of the MHCIFP A**ct.
On 7 April 2025 the accused was arraigned before me with respect to the offences, and was taken to have pleaded not guilty pursuant to s 56(5) of the MHCIFP A**ct. This special hearing is to be conducted as nearly as possible as if it were a trial in criminal proceedings (s 56(1)), although the Court may, if it thinks appropriate, modify the court processes to facilitate the effective participation by the accused in the special hearing (s 56(1)). The accused may raise any defence that could properly be raised if the special hearing were an ordinary trial of criminal proceedings (s 56(6)) and the accused is entitled to give evidence (s 56(7))
The trial is by judge alone, there being no election contemplated by s 56(9) of the MHCIFP A**ct. The Court is to determine the guilt of the accused with respect to each count on the indictment in accordance with s 133 of the (NSW) ().
In compliance with s 133(2) and (3) of the CP Act, and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.
It is my duty and responsibility to consider whether the accused is “guilty” or “not guilty” of the charges and return my verdict according to the evidence. I have taken into account the submissions on behalf of the Crown and counsel for the accused. However, I note that in no sense are those submissions evidence in the trial.
I must direct myself on the onus of proof. This is a very important direction. This is a criminal trial of the most serious nature and the burden of proof of guilt of the accused is placed on the Crown. The onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I remind myself that suspicion is not a substitute for proof beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charges beyond reasonable doubt, the accused must be found not guilty of the relevant counts on the indictment.
The words “beyond reasonable doubt” are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, after considering the evidence and submissions for the Crown and counsel for the accused, I am not satisfied that the Crown has established any one of the essential ingredients or elements beyond reasonable doubt then it is my duty to return a verdict of “not guilty”, because the Crown will have failed to do what the law requires it to do.
I remind myself that it is vitally important that I clearly understand that the accused must be found “not guilty” if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient or element, even though I feel that he may be guilty, the accused is entitled to the benefit of any reasonable doubt, and I must find him not guilty. However, I also remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charges.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case – important not only to the accused but also to the whole community. I must, as the judge of the facts, act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgement. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.
The elements of the offences are as below.
Count 1: The allegation concerning Count 1 is that the accused, accompanied by Lealofi Namulauulu, forcibly entered George Beshara’s house through the unlocked front door, and demanded money. It is alleged that the accused began to punch George Beshara while Lealofi Namulauulu hit George Beshara around the head with the butt of a silver pistol. The elements are as follows:
(a) The accused broke and entered the premises. (b) Those premises were a dwelling house; AND (c) Having entered the premises, the accused assaulted George Beshara; AND (d) In assaulting George Beshara, the accused caused actual bodily harm to George Beshara; AND (e) When doing so, the accused was in the company of another person, namely Lealofi Namulauulu; AND (f) When doing so, the accused was armed with a dangerous weapon.
(a) The accused broke and entered the premises; AND (b) Those premises were a dwelling house; AND (c) Having entered the premises, the accused assaulted George Beshara; AND (d) In assaulting George Beshara, the accused caused actual bodily harm to George Beshara; AND (e) When doing so, the accused was in the company of another person, namely Lealofi Namulauulu.
(a) The accused took the gold rings from Leanne Jones; AND (b) The accused, at the time, intended to permanently deprive Leanne Jones of the property; AND (c) The accused did not have the consent of Leanne Jones to take the gold rings; AND (d) The gold rings were taken from Leanne Jones using actual violence or by putting Leanne Jones in fear of actual violence; AND (e) At the time, the accused was armed with a dangerous weapon.
(a) The accused took the property from Leanne Jones; AND (b) The accused, at the time, intended to permanently deprive Leanne Jones of the property; AND (c) The accused did not have the consent of Leanne Jones to take the property; AND (d) The property was taken from Leanne Jones using actual violence or by putting Leanne Jones in fear of actual violence; AND (e) At the time the accused was in company of another, namely Lealofi Namulauulu
(a) The accused took the property from Reece Kovacs; AND (b) The accused, at the time, intended to permanently deprive Reece Kovacs of the property; AND (c) The accused did not have the consent of Reece Kovacs to take the property; AND (d) The property was taken from Reece Kovacs using actual violence or by putting Mr Kovacs in fear of actual violence; AND (e) At the time the accused was in company of another, namely Lealofi Namulauulu.
(a) The accused attempted to discharge a firearm; AND (b) At the time, the accused intended to cause grievous bodily harm to George Beshara.
It is the Crown case that the subject offences were committed as part of a joint criminal enterprise with Lealofi Namulauulu (the co-offender), who has pleaded guilty with respect to five offences in relation to this matter. With respect to Count 1, the Crown contends that the actions constituting the offence were committed by both the accused and the co-offender, except that the co-offender was at all times the individual possessing the pistol. With respect to Count 2, the Crown contends that the actions constituting the offence were committed by the co-offender.
With respect to the case against the accused, the Crown relies on the principle of joint criminal enterprise, whereby two or more persons reach an agreement to carry out a particular criminal activity and each is held to be criminally responsible for the acts of another participant in carrying out that activity, regardless of the role played by any particular participant.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. Joint criminal liability arises from the making of the agreement (tacit or express) and the offender’s participation in its execution: Huynh v The Queen [2013] HCA 6 at [37]. A person participates in a joint enterprise by being present when the agreed crime is committed: Huynh v The Queen [2013] HCA 6 at [38]; Youkhana v R [2015] NSWCCA 41 at [13].
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.
The Crown relies on the principle of joint criminal enterprise in respect of each of the counts on the indictment.
With respect to Count 4, in the alternative, the Crown relies on the principle of extended joint criminal enterprise, where the offence committed is different from the foundational offence which is the subject of the joint criminal enterprise: see [2012] NSWCCA 111 at [249]–[252]. This principle applies where, in carrying out the joint criminal enterprise, one of the participants commits an additional offence that was not the crime that they had agreed to commit but was one that at least one or some of the other participants foresaw might be committed. In such a case, that participant who foresaw the possibility of the commission of the additional offence would also be guilty of the additional offence. The Crown alleges that the accused was a participant in a joint criminal enterprise to commit the offence of robbery armed with a dangerous weapon and foresaw that the additional crime of attempt to discharge firearm with intent to cause grievous bodily harm might be committed. For the accused to be guilty of the additional crime, the Crown must prove beyond a reasonable doubt that he foresaw the possibility that this crime might be committed in carrying out the joint criminal enterprise. The Crown would need to establish that the attempt to discharge of the pistol, which was loaded, was foreseen by the accused as a possible occurrence in carrying out the armed robbery.
The central issue in the matter is whether the Crown can prove beyond reasonable doubt that the man who participated in the offending alongside the co-offender was the accused Andre Parkes.
If the identity of the accused is established beyond reasonable doubt, the Crown must then prove beyond reasonable doubt that the accused is criminally responsible for each of the charges commissioned through the joint criminal enterprise with the co-offender.
Agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) (Evidence Act) (Exhibit A) and the way the hearing was conducted reveal certain facts not in dispute.
George Beshara (Beshara) and Leanne Jones (Jones), at the time of the alleged offences, were in a relationship and living at 39 Marcia Street, Toongabbie (the property).
The accused, at the time of the alleged offences, resided at 32 Rosenthal Street, Doonside, which is supported accommodation run by Sunnyday Carers (SC). This organisation assists clients with disabilities and employs people as support workers as they assist clients in various ways including transporting them to locations, dispensing medication and performing check-ups throughout the night. On 12 May 2022 two support workers were rostered on at the accused's supported accommodation being Michael Mao Ji Heng (Heng) (3:00pm to 11:00pm) and Paepaega Clinton Aiono (Aiono) (11:00pm to 7:00am on 13 May 2022). Aiono had previously been involved in supporting the accused at the accommodation whereas it was the first time for Heng.
The Town Tavern Blacktown (the Tavern) is a public house located in David Lane, Blacktown, being a public house with an attached gaming area. It is equipped with closed circuit television footage (CCTV).
On the evening of 12 May 2022 the co-offender, whilst in the company of another person, committed various offences by way of a home invasion at the property.
Between 4:30pm and 5:00pm on 12 May 2022 (prior to the home invasion) the co-offender was present at the Tavern. Whilst there he threatened a patron, lifting up his tracksuit top exposing a silver pistol protruding from the top of his trackpants. The co-offender then went outside the Tavern and approached a car parked on the street. He opened the rear passenger side door of the car before asking two female passengers for a lift. When those passengers refused the co-offender pulled the silver pistol from the front waistband of his pants and said he needed to get away from Blacktown. The co-offender thereafter entered the vehicle.
At 6:01pm on 12 May 2022, CCTV footage captured Beshara and Jones entering the gaming area of the Tavern and shortly thereafter commenced using the gaming machines. Approximately 20 minutes later the couple were joined by Beshara’s brother and nephew. At about 6:37pm the accused and his girlfriend, Rachelle Kelly (Kelly), entered the Tavern at which time Beshara walked out of the gaming area and past the accused. At 6:39pm Beshara walked back into the gaming area followed by his brother, nephew, the accused and Kelly. Beshara used the gaming machine whilst the accused was behind them and, at times, the accused put his hand on Beshara’s back and leaned in towards Beshara. Kelly was also with Beshara and the accused whilst they used the gaming machine.
As the agreed facts record, on the evening of the home invasion, Beshara had identified one of the assailants as a person he knew as Dre. This was said in the company of Jones, who shortly thereafter, similarly alleged one of the assailants was Dre.
Beshara agreed that when he identified the accused as one of the assailants to police on 12 May and 13 May 2022, he was able to do so by reason of the accused's voice. Indeed, when specifically asked by police how it was that he believed it was the accused, Beshara referred to the accused’s voice only. He did not tell police that he identified the accused by seeing his face.
In evidence Beshara described the accused as “dark" and having “like an accent to his voice". He described the accent as “like a Jamaican" which was “hard not to notice". Beshara gave evidence that he knew it was the accused shortly after the two assailants entered as “I know his voice… his accent". He further alleged that he identified the accused as he had yelled out his partner's name “Leigh”. Beshara gave evidence that when entering the property, the two assailants were wearing balaclavas over their head. It is fair to assume that in those circumstances, consistent with Beshara's evidence, he relied only upon voice identification at that time. This is consistent with what Beshara told police on the night of the home invasion and the following day.
However, Beshara gave evidence that when he and the assailant were in the bedroom talking about the safe being opened the accused had “taken [the balaclava] off". He described in his evidence the accused removing the balaclava by lifting it up from his chin to his hairline or forehead so that he could see his whole face. In cross examination, Beshara reiterated his evidence in chief that the accused took the balaclava off. He alleged that the accused did so because he had realised Beshara knew it was him.
In cross examination, Beshara agreed that he had previously spoken to investigating police, the DPP and had given evidence in court. He agreed, consistent with other evidence, that he spoke to police at approximately 10:24pm on 12 May 2022 and again at 8:56am the following morning, 13 May. He further spoke to the police at 6:33pm on 13 May 2022 at a time when police were searching the various safes located in his bedroom. He further spoke to the DPP on 13 November 2024. This was prior to giving evidence at Parramatta District Court on a disputed facts hearing relating to the co-offender on 18 November 2024.
The Crown conceded, consistent with propositions put to Beshara in cross examination, that despite the numerous opportunities to do so, Beshara had not previously alleged that the accused had removed his balaclava, thereby enabling him to see the whole of the accused's face. The first time he had alleged the accused had removed the balaclava, thereby exposing his entire face, was when giving evidence on 7 April 2025.
Q. Did you know it was Dre when he first came in the door?
A. No.
Q. At what point did you know it was Dre, the male without the gun?
A. When I knew it 100% it was Dre? Upstairs, when I was upstairs.
Q. How did you know it was Dre upstairs?
A. Because the t-shirt he had on his head came off.
Q. How did it come off?
A. I believe when George and him were fighting--
…
When George and him were fighting. On the bed.
Q. Do you remember anything further about how it came off while George and him were fighting on the bed?
A. No, I don't.
Q. When you said "it came off", can you describe that for us in a bit more detail?
A. Well, it didn't come off or, completely. It just came down a bit. So, it uncovered his face a little bit.
Q. How far down his face?
A. Just like half of his face. Not all of it.
HIS HONOUR
…
Q. But do I understand, your evidence is that, whatever it was came down, so to speak?
A. I believe - it was, I think it was a jumper. Because, like, I think I seen a sleeve come down. That's why the whole thing didn't come off. It was wrapped around his head and just a piece of it came off. Piece of it came down.
SOLICITOR ADVOCATE
Q. When you said "it came down", you said it didn't come down all the way, how far did it come down?
A. Just enough to uncover like a bit of a portion of his face.
Q. When you say "a portion of his face", what portion. What could you see?
A. Like, that much of his face.
…
Q. I'm just going to stop there--
A. His eye. His mouth. Half of it.
…
Q. So, the side of his face that you could see, can you tell us exactly what you could see?
A. I could see a cheek, his eye, and that's about it.
…
Q. After you saw a portion of the man's face, who was it?
A. Dre.
Q. Why do you say it was Dre?
A. I heard his voice before anyway. I knew it was him. Cause I could hear him talking. When he was talking, I know, I knew his voice.
Q. When--
A. I knew it was sort of him before I seen(as said) him uncover his face, cause I knew who he was by his voice. But, I didn't know 100% until I seen(as said) his face.
…
Q. When you just said, "I heard his voice before", what part of the night are you talking about when you heard his voice?
A. The whole night.
Q. So, are you telling us that from hearing his voice you knew who it was?
A. Yes.
…
Q. What could you hear?
A. Cause when he spoke I knew that it was Dre. I knew, I know his voice. I'd been hearing it.
Q. When you say "I'd been hearing it", are you--
A. Over the last few days, you know, I know his voice. I'd been seeing him around.
…
Q. "I'd been hearing it around for a few--
A. Yeah, like, when I'd seen him at the pub we spoke. So, we've been speaking quite often.
Q. When you spoke to Dre at the pub "quite often", can you tell us anything about his voice?
A. I'm not sure really what you mean with that, but, I just, I can recognise his voice. I know what his voice sounds like.
Q. How can you recognise his voice?
A. Because I'd been talking with him a lot. I've had conversations with him.
Q. Is there anything about his voice you can tell us?
A. Not, I don't believe, I don't think I can. Unless he called my name out that night. So, he knew me.
…
Q. I'm just talking about this really particular part of the night when you said earlier that "half of the face covering came off", and you said you "thought it was a jumper cause you saw a sleeve". Can you just step us through what happened after that point, where you said that you were able to observe "a cheek and an eye". What happened to that male after that point?
A. Well, he was standing on the bed when that happened. And he covered himself back up.
Q. How did he do that?
A. With his hands. Just, with his hand.
Q. Can I just for the record indicate that you're taking your hand and moving it around your head. What are you trying to--
A. Well, he was fixing up the jumper on his head to cover himself up again.
In cross examination, Jones conceded that when identifying the accused to police after the home invasion she did not tell police that she had seen the accused's face.
On 13 May 2022, Jones provided a statement to investigating police. In that statement Jones said the following:
"I'm certain it was Dre that forced his way into our house tonight, because I've heard him talk so much over the last couple of days"
“I looked over and saw Dre standing on the bed and his face was uncovered. I could clearly see Dre's face from his hairline to below his chin. Dre started trying to cover up his face while calling out to the second male who was downstairs.” (emphasis added)
The Crown referred in detail to the identification evidence traversed above. The Crown contended that there was voice and facial identification evidence from Beshara and Jones. To the extent there was a general attack on the reliability of their evidence, the Crown contended that there was no real issue about their evidence “generally" as to the home invasion. This included evidence as to the involvement of a firearm and its discharge. The Crown submitted that the complainants were telling the truth about their movements at the Tavern earlier that day and the fact that the accused was also present at the Tavern. Beshara told the truth about having stabbed the co-offender. Whilst it was accepted that there were inconsistencies in the evidence of Jones and Beshara, being internal inconsistencies in their individual evidence, and inconsistencies as to their respective versions, this would not detract from their overall reliability. Further, the Court would consider the evidence of Beshara and Jones that this was a fast moving and traumatic experience for them which clearly was frightening in the context of the violence and use of a firearm.
It was contended that it was too simplistic to simply reject their evidence in its entirety by reason of any inconsistencies or untruths in the evidence they gave. The Crown referred to the judgement of Lee J in Lehrmann v Network Ten Pty Limited [2024] FCA 369 where His Honour observed that it would be too simplistic to proceed on the basis that merely because witnesses may misremember or lie about some things, that they are not otherwise telling the truth.
It was contended that despite any apparent inconsistencies in their evidence, both witnesses were unwavering in their assertions that they saw the accused's face. Further, both witnesses were unwavering in their claims that they identified the accused by reference to his voice.
The Crown relied on identification evidence of the complainants Beshara and Jones.
Pursuant to s 116 and s 165 of the Evidence Act, there is a special need for caution before accepting identification evidence and I should consider the reasons for that need for caution. In this case, special caution is needed both in the context of visual identification of the accused, and in voice identification. In particular, I must consider:
why identification evidence in general may be unreliable, and thus why there is a special need for caution; and
why the identification evidence in this particular case may be unreliable, with consideration of the particular matters which may cause it to be unreliable.
These directions relate to the reliability of the identification evidence given, not to the honesty of the witnesses. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. In circumstances where a witness gives evidence of identification where they honestly and sincerely believe that their evidence is correct, that evidence will usually be quite impressive, even persuasive. Even if I were to believe Beshara and Jones were entirely honest in the evidence that they gave, which I do not, I must still approach the task of assessing the reliability of their evidence with special caution.
Special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable.
I must carefully consider the circumstances in which Beshara and Jones made their observations of the second offender. The circumstances in which they both made their observations of the second offender can affect the reliability of their identification evidence.
In this case the evidence of Jones and Beshara is that they recognised someone that they knew. It is perhaps easier to understand the possibility of error when the evidence is given by someone who has not previously known the accused, but errors may also occur even when the witness has previously known the accused. Just because a witness claims to have known the person, there remains a possibility of mistake.
In this case more than one witness has identified the accused. This may be taken into account to determine how strong the evidence is. However, this does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one.
It is trite that merely because evidence of a witness might be unreliable or untruthful in certain respects, the Court must reject the evidence of that witness in its entirety. Consistent with the direction already given, it is open for the court to reject part of a witness’ evidence and accept other aspects of the witness’ evidence if there is good reason for doing so. However, this does not abrogate the Court’s responsibility to carefully consider the reliability of evidence given by a witness, particularly evidence as to identification.
“Reece is a sleaze. I don't know him too well. He, he only came there for one thing, ma'am. To let them through the door.”
Beshara told police that Kovacs had “bolted” after the home invasion. He claimed that the accused had intended to rob him of his winnings whilst at the Tavern by inviting him into the toilet.
Beshara's evidence as to the events at the Tavern on 12 May 2022 was internally inconsistent. This included the nature of any winnings at several venues, whether, and if so, what tickets were “cashed in", and the circumstances in which the accused allegedly was immediately present when winnings were collected.
In evidence in chief, Beshara gave very specific evidence of having won up to $4,000.00-$5,000.00 on the night of 12 May 2022. He further gave specific evidence that when “cashing out" a win of $1,800, the accused was standing directly behind him and thereafter the accused immediately asked him to go to the toilets. The clear impression Beshara was seeking to convey was that the accused witnessed Beshara's collection of a substantial sum of money and was intending to rob him of his winnings.
However, when further pressed in cross examination as to this alleged event, he was reminded that he never told police the accused was behind him at the bar when cashing out the ticket. He then accepted that he was unaware precisely of what he told police, however he did tell them that he was “there". When further pressed, Beshara accepted, having attended two gambling venues on that evening, that in fact he did not recall where he may have cashed out relevant tickets.
In cross-examination, Beshara was reminded of the CCTV footage depicting an exchange he had with the accused at the Tavern. This occurred whilst being adjacent to a poker machine. When reminded of this part of the CCTV, Beshara claimed that it was actually on this occasion that the accused asked him to go to the toilet. He claimed that the accused was asking him to go to the toilet because “he was gonna try and rob me in the toilet, or, or bash me in the toilet". When Beshara was reminded of his evidence the previous day, that this request of the accused for Beshara to attend the toilet happened at the bar whilst collecting the winning ticket, Beshara then claimed that there were two instances in which this occurred. This was despite Beshara giving no evidence that this request that the accused attend the toilet with him occurred twice. When further pressed on this apparent inconsistency, Beshara then gave the following evidence: –
“Yeah, I can't remember speaking at the machine about that conversation, but I remember a conversation about the toilet in that, but I don't remember where it took place. Only near the bar, I don't remember it taking place near the machine also.”
“I remember most of it, there's some parts I don't remember, but as I said I've been diagnosed with something lately and my mind is all over the shop. So you've got, got to understand where I'm coming from.”
“It is. It is poor. I've smoked a lot of pot in my time.”
In any event, Beshara ultimately conceded that he could not recall where he cashed out winning tickets, if at all, having attended several venues that day.
Beshara repeatedly denied that he supplied drugs to others from the property around the time of the home invasion. However, it was the evidence of Detective Senior Constable Houldin, the officer in charge, that there were multiple police intelligence reports and other reports that the property was a drug house. This included reports that there were multiple people going to and from that house and that it was believed that Beshara was selling cocaine, heroin and ice from the property. Despite Beshara's denials, police reports confirmed multiple people attending the property at all hours of the day and night and that the police held significant evidence that drugs were being sold from the property.
The evidence of the officer in charge in this respect was consistent with the evidence of Reece Kovacs given in the co-offenders disputed facts hearing on 18 November 2024. The transcript of that evidence (Exhibit K) was tendered by the Crown and admitted into evidence. The Crown conceded that the evidence of Kovacs, and his statement to police dated 13 May 2022 (Exhibit J), would be accepted as truthful.
Kovacs gave evidence in November 2024 that the property was a known drug house. He further gave evidence that he would attend the property several times per week to obtain and smoke heroin.
The accused, in his interview with police, said that Beshara regularly supplied him with drugs. Indeed, he would attend Beshara’s house almost every second day to purchase drugs. For the reasons traversed below I accept the accused’ statements to police as truthful.
Beshara denied that on the night of the home invasion any of those present at the property were using drugs. Specifically, Beshara denied that Kovacs or Heffernan were using drugs. This is entirely inconsistent with the unchallenged evidence of Kovacs that on the night in question he and Heffernan were smoking heroin which had been supplied by Beshara. Further, to the best of his recollection, Beshara was also using drugs on that evening.
I am satisfied that the evidence of Beshara denying drugs were supplied from the property or the persons present on the night of the invasion were using drugs was patently untrue. I do not accept the Crown's submission that Beshara's evidence in this respect is simply explicable by his reluctance to disclose involvement in activities which were either criminal or led to suspicions that he was involved in such activity. Beshara had been advised, prior to giving evidence, of his right to object to questions in accordance with s 128 of the Evidence Act. Beshara understood the effect of such advice. Consistent with this understanding, Beshara did at times in his evidence object to the giving of evidence in accordance with advice given. On those occasions Beshara was given the relevant protection provided in s 128 and was advised that this would occur. Accordingly, at the time Beshara gave untruthful evidence as to his and his associates involvement in drugs, he was aware of his right to object to the giving of such evidence and that he would be afforded appropriate protection in the event such evidence was given.
“I looked over and saw Dray standing on the bed and his face was uncovered I could clearly see Dray’s face from his hairline to below his chin. Dray started trying to cover up his face while calling out to the second male who was downstairs.”
This statement is wholly inconsistent with her evidence in which she claimed that she only observed a small portion of the accused's face when the improvised facial covering inadvertently fell from a portion of his face. It was her evidence that the face was uncovered “a little bit" and she was merely able to see a cheek and eye. This inconsistency is significant in that it is central to Jones’ purported identification of the accused by facial recognition.
Jones’ other form of identification is by asserting that she recognised his voice. However, this purported identification must be considered in the context of Jones’ limited opportunity of hearing the second offender speak during the home invasion. On Jones’ evidence, there were only three brief statements made by this person. He initially told the occupants to get on the floor and later demanded Beshara go up the stairs. Finally, the second offender screamed out “Uso Uso" to the co-offender below.
Further, Jones was unable to articulate any particular distinguishing feature of the accused's voice which enabled her to positively identify the voice as that of the accused.
In all the circumstances, I find that the evidence of Jones purportedly identifying the accused as the second offender is inherently unreliable.
In any event, there is a significant inconsistency in the evidence of Jones and Beshara as to the circumstances in which the accused allegedly revealed his face. This inconsistency only serves to add to the unreliability of the identification evidence.
Beshara claimed that the accused deliberately removed his balaclava so as to expose his face in its entirety. There is no suggestion in the evidence of Beshara that the accused thereafter attempted to recover his face. Indeed, it was Beshara's evidence that the accused made a deliberate decision to reveal himself by removing the balaclava in circumstances where the accused, by that stage, believed that Beshara had recognised him in any event.
This is to be contrasted with the evidence of Jones who claimed that the accused’s head covering was not a balaclava, but rather an improvised piece of clothing. She claimed that rather than the accused deliberately revealing himself, part of the improvised face covering accidentally fell away from the accused’s face which he thereafter sought to return so as to cover his face.
I do not accept the Crown's submission that these two versions are consistent in that the witnesses are merely describing different events. If Beshara's evidence is to be accepted, there was a full reveal of the accused's face, having removed the balaclava. In those circumstances Jones would have seen the accused face in its entirety, the facial covering having been removed. Alternatively, if Jones’ evidence is to be accepted, Beshara would have seen an improvised facial covering, as opposed to a balaclava, inadvertently falling from part of the accused face before he attempted to return the cover to his face. I am satisfied that this significant inconsistency as to the circumstances in which the accused was recognised by exposure of his face is of such moment that it further renders the evidence of identification inherently unreliable.
The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainants’ evidence in court.
The Crown says the fact the complainants made the complaint to the police immediately after the invasion, and at that time both complainants stated that one of the offenders was the accused makes it more likely the complainants are telling the truth. To this end, the Crown pointed out that this complaint was an “immediate, contemporaneous complaint on the night.”
I must also consider that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.
The defence disputes this by pointing out various inconsistencies between the account given to police on 12 May 2022, and the evidence given by the complainants in Court. Specifically, Ms Chauvet noted that on 12 May 2022, Beshara was asked by police how he knew that one of the offenders was the accused, and he had said “from his voice”. Beshara made no mention of having ever seen the accused’s face in this initial complaint but gave evidence that he had seen the accused’s face during the trial.
As previously noted, Beshara’s alleged facial identification was only given for the first time in evidence. His report to police alleging the accused was involved could therefore only be based upon voice recognition. Any report to police is impacted by the same issues as to reliability traversed above. I do not accept that this alleged identification of the accused to police, in those circumstances, provides any particular support for the alleged identification provided by Beshara in evidence. As to its credibility use, I have found that Beshara was inherently unreliable and at times untruthful. I am not satisfied that the initial reporting to police is of such moment that provides any support to the alleged truthfulness of Beshara’s evidence in Court.
Jones’ alleged facial identification to police in her statement must be considered in the context of the clear inconsistencies between the report to police and her evidence in Court traversed above. I am not satisfied that the earlier identification of the accused when speaking to police provides any additional probative support for Jones’ identification evidence given in Court. Similarly, Jones’ purported voice identification, to the extent of her reliance upon it when speaking to police is tainted by the same issues of reliability traversed above.
I do not accept that the complaint evidence assists in the Crown case that the accused was the second offender involved in the home invasion.
In all the circumstances I am not satisfied beyond reasonable doubt that the second offender involved in the home invasion was the accused.
Before the accused can be convicted in respect of any charge in the indictment, I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is, the Crown must prove the particular act to which each charge relates as alleged by the complainant.
In addition to the evidence led by the Crown specifically on the counts on the indictment, the Crown has led evidence of other acts by the accused (context evidence).
The evidence of other acts is that two or three days prior to 12 May 2022, the accused came to the home of the complainant and began asking for money, specifically “a couple of hundred”. Beshara gave evidence that when he responded that he didn’t have the money, the accused came closer to him causing him to “palm strike” the accused, arm himself with a knife, and tell the accused to “Get the fuck out of my house”.
This evidence was admitted to give context to the evidence of the complainants of the specific acts with which the accused has been charged; that the accused entering Beshara’s house to obtain money was not isolated only to those acts with which he has been charged in relation to the home invasion on 12 May 2022. I have made further findings below as to the circumstances of this incident.
I must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offence/s charged because he entered Beshara’s home looking for money days earlier as alleged. This is not the reason the Crown placed the evidence before the Court. The evidence has a very limited purpose, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
I must not reason that, just because the accused may have entered Beshara’s house seeking money on some other occasion, he must have done so on the occasion/s alleged in the indictment. I cannot punish the accused for other acts attributed to him by finding him guilty of the charge/s in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.
The accused relies on his denials that he was not at Mr Beshara’s house on 12 May 2022, and that he was in no way involved in the home invasion that took part that day. The accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and he is entitled to the benefit of any reasonable doubt I may have.
It follows from this that:
First, if I believe the accused’s evidence denying playing any part in the home invasion, I must acquit.
Second, if I find difficulty in accepting the accused’s evidence denying his involvement in the home invasion, but think it might be true, then I must acquit.
Third, if I do not believe the accused’s evidence denying any involvement in the home invasion, I should put it to one side.
Nevertheless, the question will remain: has the Crown, upon the basis of evidence which I accept, proved the accused’s guilt beyond reasonable doubt.
The accused freely engaged in an ERISP with police following his arrest.
The accused acknowledged knowing Beshara and Jones in the context of selling him drugs. He denied committing any of the acts alleged and denied being at the property on the evening of 12 May 2022. The accused expressed his willingness to show his body and the absence of injuries as well as providing a DNA sample.
The accused freely acknowledged being to the property “plenty of times" in the context of buying drugs. He would get a lift to the property, remain for several minutes to collect drugs before returning home. Indeed, the accused stated that he was there almost every second day. Whilst he acknowledged that he would enter the kitchen and lounge room area, he denied ever going upstairs. The accused admitted that he had been to the property the night before the home invasion to “get something" but again denied he was there on the night of the home invasion.
The accused freely admitted that he had previous disagreements with Beshara over “paying money back" and “sizes". He accepted in this context that there were a few “words back and forwards" and that these disagreements were in person. Whilst he had heard about the home invasion from others, he denied being involved. He had heard “an African bloke" had got stabbed.
The accused freely admitted that he was known by the name of “Drey” and that Beshara would call him by this name. The accused admitted, having been shown CCTV, that he was at the Tavern on 12 May 2022 with his “missus". He engaged in drinking and played card machines. Whilst he did not meet anyone at the hotel, he did see Beshara and spoke to him for a brief period. The accused freely admitted that he had had an argument with Beshara a few days before over money. However, it was “sorted".
I do not accept the Crown's submissions that there is other “circumstantial" evidence supporting the accused's involvement in the home invasion.
The Crown relies upon the fact that the second offender referred to Jones by her name “Leigh”. The Crown notes that the accused freely admitted in his interview that he referred to Jones as Leigh. The mere fact that the second offender referred to Jones as Leigh is not a circumstance which inculpates the accused. There is no evidence that it was only the accused who referred to Jones by this name. To the contrary, Jones gave evidence that she regularly went by that name.
I do not accept the Crown's submission that a further circumstance supporting the accused’s guilt is the fact that the accused was involved in a disagreement with Beshara in the days prior to the home invasion. In any event, the underlying premise of this submission was that the Court would accept Beshara's account of this disagreement that the accused was asking for money. For the reasons already given, I have found that Beshara was in general terms an unsatisfactory and unreliable witness. The accused does not accept that this incident involved asking Beshara for money. To the contrary, the accused suggested that the disagreement was something to do with paying money back to Beshara.
I accept the accused's account of the general nature of this disagreement given the accused readily admitted that Beshara regularly supplied him with drugs. Beshara's claim that it was simply a request by the accused for money lacks credibility in circumstances where Beshara otherwise denied that he was the supplier of drugs to anyone, including the accused.
Whilst the evidence of Heng at least allows for the possible commission of the offence by Parkes, I am not satisfied that this is a circumstance which otherwise supports any finding of guilt. Indeed, to the contrary, Exhibit 6, being activity logs for the accused on the night in question, is at least supportive of the accused's claim that he was at his Doonside residence at the time of the home invasion. Whilst there are clearly some aspects of this log which are unsatisfactory, given the evidence of Heng, at the very least, it is not inconsistent with the accused's statements to police that he was at home with Kelly at the time of the home invasion.
I do not accept the Crown's submission that the evidence of Aiono is further circumstantial evidence supportive of the accused’s guilt. To the contrary, for the reasons discussed below, I find that the evidence of Aiono is indeed inconsistent with the accused being involved in the home invasion.
Contrary to the Crown submission that there is circumstantial evidence supporting the guilt of the accused, the preponderance of evidence is inconsistent with the Crown case that the accused was the second offender.
It was the evidence of Beshara that he was involved in a significant physical altercation with the second offender during the home invasion. This started with the second offender being involved in the “bashing" of Beshara in the living area. Thereafter, Beshara claimed that the second offender grabbed hold of him, lifted him up and dragged him up the stairs. Beshara and the second offender then went to the bedroom where the safes were located. The second offender sat Beshara on the bed. Beshara then described that the following occurred: –
“I’ve got near the bed and what he did he sat me on the bed and I grabbed that knife and I rammed into his gut and lifted him up onto the bed… I hit, hit his stomach with the knife… When the knife hit his stomach, with the momentum, I lifted him up onto the bed and he, he was on the bed and he yelled out, “Uso, Uso” and his friend ran up the stairs.”
This is consistent with what the Beshara told police the day after the home invasion that he managed to “subdue” the second offender and “got him in the gut, I think with the blade”.
Thereafter, the co-offender also entered the room and there was a further violent altercation.
The agreed facts record the not insignificant injuries suffered by Beshara and the co-offender. This included the co-offender suffering a laceration to his stomach from being stabbed by Beshara. Beshara gave evidence that his use of the knife on the second offender, including the force applied in hitting the second offender with the knife, was same as that used on the co-offender.
Given these circumstances, and the fact the Beshara and the co-offender suffered observable injuries, it would not be unexpected that the second offender would also have suffered some injuries, particularly some form of stab wound to the stomach. However, there is no evidence that the accused had any injuries in the period after the invasion. Indeed, to the contrary, the accused, when interviewed by police some three weeks later, offered to have his body examined for any injuries.
Despite the alleged significant involvement of the offender in the home invasion, including a physical altercation with Beshara on both levels of the property, there was no forensic evidence linking the accused to the scene of the crime.
It is apparent, given the presence of a significant amount of blood on blinds attached to the window through which Beshara moved that Beshara would have had a significant amount of blood on his body. It is the evidence of Aiono that when he checked on the accused, within approximately 45 minutes of the home invasion, there was no blood on the accused. This evidence must be considered in the following context.
According to the agreed facts, at the time of the triple-0 call (10:17 pm) the home invasion had just occurred and the two assailants were seen jumping the fence and running through the park away from the property. Evidence tendered by the Crown established that the distance between the property and the accused’s residence was somewhere between 8.4 km and 9.8 km, depending upon the route taken. The time taken to drive the various routes was somewhere between 14 minutes and 16 minutes. The fastest time to walk the route was one hour 38 minutes.
On the evidence of Heng and Aiono, the accused had no access to a vehicle and was entirely dependent upon his carers for transport. It was the evidence of Heng that the accused was transported to and from the various gambling premises and his home by car. It was Aiono’s evidence that when he checked on the accused at about 11:00pm, the accused asked if he could drive him to a nearby hotel.
Further, the only evidence available as to the position of the co-offender is that he similarly was dependent upon others for transport. It was an agreed fact that having left the Tavern, the co-offender forced, at gunpoint, the occupants of a nearby vehicle to drive him away.
"That's what, that's what's got me fucked. I don't know how he, how he knew to say ‘Come upstairs to the safe.’”
Beshara agreed in evidence that the effect of this statement to police was that he was surprised the persons who came to his house knew about the safes. The accused, in his interview with police, repeatedly denied he had ever been upstairs at the property. This is consistent with the evidence of Beshara who agreed that prior to 12 May 2022 the accused had never been to the upstairs area of the property. Accordingly, there is no evidence that the accused would have known that Beshara had safes installed in his home, let alone that such safes were installed in one of the upstairs bedrooms. This is inconsistent with the second offender being the accused who, it appears, had knowledge of the presence of safes in the upstairs area of the property.
Finally, there was no evidence that the co-offender, who admitted participating in the home invasion, was in any way associated with the accused or knew the accused. To the contrary, the accused told investigating police in the interview, which I accept, that he did not know the person Namulauulu.
The Crown tendered in its case the statement of the accused's partner, Rachelle Kelly, which provides the accused with an alibi. However, the Crown contended that Kelly’s alibi evidence would not be accepted.
Kelly told police that on the afternoon/evening of 12 May 2022, she was with the accused at a licensed premises, having been driven there by the accused's carer. After leaving that premises, in the company of the accused and the carer, they attended a second pub. Thereafter, the carer drove Kelly and the accused back to the accused's Doonside residence. They “had a feed" and watched TV before going to bed. Kelly told police that she stayed that night at the accused's house with the accused. At no time did the accused leave. She woke the next morning at which time the accused was still with her.
If the Crown fails to satisfy the Court beyond reasonable doubt that the alibi evidence should be rejected, then the accused must be acquitted. The Crown must disprove the alibi.
The Crown must establish beyond reasonable doubt that the accused was at Beshara’s house at the relevant time of the home invasion. The Crown cannot do so if there is any reasonable possibility that the accused was at his own residence with Kelly at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at his own residence with Kelly at the relevant time, and also persuade the Court, on the evidence on which the Crown relies, that beyond reasonable doubt the accused was at Beshara’s house at that time. If the Crown fails to remove or eliminate that reasonable possibility, the accused must be acquitted.
If I am satisfied beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that I must necessarily convict the accused. I cannot assume that because the alibi fails that the accused is guilty. I must still be satisfied beyond reasonable doubt, upon the evidence as a whole, that the Crown has made out its case against the accused.
The Crown submitted that the timing and circumstances of the alibi statement being provided to police undermined its reliability and truthfulness. I do not accept this submission. To the contrary, the circumstances in which it was provided are not unusual nor untoward. The sequence of events is that the accused was arrested on 1 June 2022 whilst in the company of Kelly. The accused was taken into police custody and interviewed. The accused in that interview asserted that he was with Kelly at the time of the home invasion. No doubt in response to this assertion, investigating police, the very next day, obtained a statement from Kelly.
Kelly’s statement as to her movements on 12 May are not only consistent with the statements of the accused in his recorded interview, they are consistent with the CCTV footage from the Tavern, the evidence of Heng that she was with the accused at the relevant times, and the evidence of Aiono that she was present at the accused's home at or around 11:00pm on 12 May 2022 and was still at the accused's home the following morning.
The accused is charged with breaking and entering the house of Beshara, in the company of the co-offender, and committing a serious indictable offence of assault causing actual bodily harm, in circumstances of special aggravation, namely being armed with a dangerous weapon, namely a pistol, contrary to s 112(3) of the Crimes Act.
The allegation concerning Count 1 is that the accused, accompanied by the co-offender, forcibly entered Beshara’s house through the unlocked front door, and demanded money. It is alleged that the accused began to punch Beshara while the co-offender hit Beshara around the head with the butt of a silver pistol.
| Elements: The Crown must prove beyond reasonable doubt each of the following elements of the offence. That: The accused broke and entered the premises; AND Those premises were a dwelling house; AND Having entered the premises, the accused assaulted George Beshara; AND In assaulting George Beshara, the accused caused actual bodily harm to George Beshara; AND When doing so, the accused was in the company of another person, namely Lealofi Namulauulu; AND When doing so, the accused was armed with a dangerous weapon. |
“Broke” means “forcibly gained access”. It is not “breaking” to walk through an open door. “Entered” essentially means “went inside”.
To open a closed but unlocked door can amount to “breaking”. Knocking on a door of a house with intent to rob its occupants and, upon the door being opened, rushing into the house constitutes a “constructive breaking”.
There is no actual breaking if the person has express or implied permission to enter through a closed, but unlocked, door, even if they had felonious intent at the time they entered.
It is the Crown case that the accused knocked at the front door, Beshara called out “who is it” and a male responded “John” or “Johnny”. As Beshara was walking towards the front door, the door swung open and the two men entered.
A “dwelling house” is a house, flat or apartment where somebody dwells, that is to say, where somebody lives or resides. It may include a place that is designed for that purpose even when nobody is actually living in it at the time.
The incident took place at 39 Marcia Street, Toongabbie being the home of Beshara.
The “serious indictable offence”, that is, the assault of Beshara, must be committed inside the dwelling house.
It is the Crown case that the accused assaulted Beshara inside the house by punching Beshara while the co-offender hit him on the head with the butt of a pistol.
The Crown must prove that as a consequence of the assault, the victim suffered actual bodily harm. “Actual bodily harm” includes any hurt or injury which interferes with the health or comfort of a person. It need not be permanent, but must be more than transient or trifling. Bruises and scratches are typical examples of injuries that can amount to actual bodily harm.
As contained in the Agreed Facts (Exhibit A), Beshara attended Westmead Hospital and was treated for the following injuries:
A CT trauma series was performed and demonstrated:
Mildly comminuted and depressed left parietal bone fracture, without intracranial haemorrhage or gas;
Comminuted fracture of the left zygomatic arch (left cheekbone);
Minimally displaced fracture of the coronoid process of the left mandible.
When doing so, the accused was in the company of another person, namely Lealofi Namulauulu
The Crown must prove beyond reasonable doubt that the offence was committed in the company of Lealofi Namulauulu.
If two or more persons are physically present and share the common purpose to commit the charged offence, either by express or implied agreement to achieve a common result, they will be “in company”. A mere coincidence of common actions is insufficient.
The Crown must prove that the coercive effect of the accused and Lealofi Namulauulu operated, either to embolden or reassure the accused in committing the crime alleged.
The Crown must prove beyond reasonable doubt that the accused was armed with a dangerous weapon.
The Crown case is that Lealofi Namulauulu was in possession of a pistol. There is no dispute that the pistol satisfies the definition of a dangerous weapon.
Joint criminal enterprise considerations
The Crown relies on the principle of joint criminal enterprise, whereby two or more persons reach an agreement to carry out a particular criminal activity and each is held to be criminally responsible for the acts of another participant in carrying out that activity, regardless of the role played by any particular participant.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, and that each participant agreed to do all the acts with the relevant intention, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.
The Crown relies, in the alternative, if the Court was not satisfied beyond reasonable doubt of the accused’s complicity in the use of the firearm in the above offence, on a statutory alternative of break and enter in company pursuant to s 112(2) of the Crimes Act.
| Elements: The Crown must prove beyond reasonable doubt each of the following elements of the offence. That: The accused broke and entered the premises; AND Those premises were a dwelling house; AND Having entered the premises, the accused assaulted George Beshara; AND In assaulting George Beshara, the accused caused actual bodily harm to George Beshara; AND When doing so, the accused was in the company of another person, namely Lealofi Namulauulu. |
The accused is charged with robbing Leanne Jones in circumstances of aggravation, namely, whilst armed with a dangerous weapon, namely, a pistol, contrary to s 97(2) of the Crimes Act 1900.
The allegation concerning Count 2 is that the co-offender pointed the silver pistol at Jones and told her to lie on the floor, pushing the pistol into the back of her head. The allegation is that the co-offender then demanded that Jones remove the two gold rings she was wearing, which she did, and that the co-offender then placed the rings in his backpack.
| Elements: The Crown must prove beyond reasonable doubt each of the following elements of the offence. That: The accused took the gold rings from Leanne Jones; AND The accused, at the time, intended to permanently deprive Leanne Jones of the property; AND The accused did not have the consent of Leanne Jones to take the gold rings; AND The gold rings were taken from Leanne Jones using actual violence or by putting Leanne Jones in fear of actual violence; AND At the time, the accused was armed with a dangerous weapon. |
To establish this element, it must be proven that the property was taken either:
It is the Crown case that, at the demand of the co-offender, Jones removed the gold rings from her hand and put them on the chair beside her, where they were picked up by the co-offender and placed in his backpack.
The Crown must prove that the accused intended or believed that the property was not taken only for a temporary purpose, but there was an intention to permanently deprive the owner of the property.
In general, an intention to permanently deprive may be inferred or concluded from the forceful taking of property.
The Crown must prove that the property was taken without the consent of Jones in that it was taken by putting the person in fear. The law is that the taking of property with the intention of permanently depriving the person from whom the property is taken from possession of it by inducing that person to hand over the property under threat or fear, is not consent in law.
It is the Crown case that, at the time Jones removed the rings from her hand and placed them on the chair, the co-offender was holding the pistol to the back of her head and demanding that she take off the rings.
The Crown must prove violence or threat of violence which induces the victim to part with the property taken. It is not sufficient if there was violence or threat thereof made after the property was taken.
It is the Crown case that, at the time Jones removed the rings from her hand and placed them on the chair, the co-offender was holding the pistol to the back of her head and demanding that she take off the rings.
It is the Crown case that, when the co-offender demanded the gold rings from Jones, he was holding a pistol to the back of her head.
Joint criminal enterprise considerations
The Crown relies on the principle of joint criminal enterprise, whereby two or more persons reach an agreement to carry out a particular criminal activity and each is held to be criminally responsible for the acts of another participant in carrying out that activity, regardless of the role played by any particular participant.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, and that each participant agreed to do all the acts with the relevant intention, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.
The Crown relies, in the alternative, if the Court was not satisfied beyond reasonable doubt of the accused’s complicity in the use of the firearm in the above offence, on a statutory alternative of robbery in company pursuant to s 97(3) of the Crimes Act.
| Elements: The Crown must prove beyond reasonable doubt each of the following elements of the offence. That: The accused took the property from Leanne Jones; AND The accused, at the time, intended to permanently deprive Leanne Jones of the property; AND The accused did not have the consent of Leanne Jones to take the property; AND The property was taken from Leanne Jones using actual violence or by putting Ms Jones in fear of actual violence; AND At the time the accused was in company of another, namely Lealofi Namulauulu |
To establish this element, it must be proven that the property was taken either:
It is the Crown case that, at the demand of the co-offender, Jones removed the gold rings from her hand and put them on the chair beside her, where they were picked up by the co-offender and placed in his backpack.
The Crown must prove that the accused intended or believed that the property was not taken only for a temporary purpose, but there was an intention to permanently deprive the owner of the property.
In general, an intention to permanently deprive may be inferred or concluded from the forceful taking of property.
The Crown must prove that the property was taken without the consent of Jones in that it was taken by putting the person in fear. The law is that the taking of property with the intention of permanently depriving the person from whom the property is taken from possession of it by inducing that person to hand over the property under threat or fear, is not consent in law.
The Crown must prove violence or threat of violence which induces the victim to part with the property taken. It is not sufficient if there was violence or threat thereof made after the property was taken.
The Crown must prove that the accused was in company of another at the time of the offence. The Crown must establish more than mere presence, although the Crown is not required to prove that the accused threatened or assaulted Jones.
If two or more persons are physically present and share the same common purpose to commit the charged offence, either by expressed or implied agreement to achieve a common result, they will be “in company”. A mere coincidence of common actions is insufficient.
The Crown needs to prove that the accused knew or expected that Jones would know of his presence at the time of the robbery and his ability to assist in the robbery if called upon to do so.
The Crown must also prove that the coercive effect of the accused and the co-offender operated, either to embolden or reassure the accused in committing the crime alleged.
The accused is charged with robbing Reece Kovacs in the company of the co-offender, contrary to s 97(1) of the Crimes Act.
The allegation concerning Count 3 is that the co-offenderr demanded Kovacs provide his valuables, at which point Kovacs handed over his black shoulder bag containing his photo ID, opal card, two sim cards, a bank card and other items.
| Elements: The Crown must prove beyond reasonable doubt each of the following elements of the offence. That: The accused took the property from Reece Kovacs; AND The accused, at the time, intended to permanently deprive Reece Kovacs of the property; AND The accused did not have the consent of Reece Kovacs to take the property; AND The property was taken from Reece Kovacs using actual violence or by putting Reece Kovacs in fear of actual violence; AND At the time the accused was in company of another, namely Lealofi Namulauulu. |
To establish this element, it must be proven that the property was taken either:
It is the Crown case that the co-offender took the property from Kovacs after asking Kovacs and Heffernan for their valuables.
The Crown must prove that the accused intended or believed that the property was not taken only for a temporary purpose, but there was an intention to permanently deprive the owner of the property.
In general, an intention to permanently deprive may be inferred or concluded from the forceful taking of property.
The Crown must prove that the property was taken without the consent of Mr Kovacs in that it was taken by putting the person in fear. The law is that the taking of property with the intention of permanently depriving the person from whom the property is taken from possession of it by inducing that person to hand over the property under threat or fear, is not consent in law.
It was Kovacs’ evidence that, at the time the co-offender took the property from Kovacs, the assailants had kicked the door open, entered the property in masks and said “where’s ya valuables”.
The Crown must prove violence or threat of violence which induces the victim to part with the property taken. It is not sufficient if there was violence or threat thereof made after the property was taken.
It was Kovacs’ evidence that, at the time the co-offender took the property from Kovac, the assailants had kicked the door open, entered the property in masks and said “where’s ya valuables”.
The Crown must prove that the accused was in company of another at the time of the offence. The Crown must establish more than mere presence, although the Crown is not required to prove that the accused threatened or assaulted Reece Kovacs.
If two or more persons are physically present and share the same common purpose to commit the charged offence, either by expressed or implied agreement to achieve a common result, they will be “in company”. A mere coincidence of common actions is insufficient.
The Crown needs to prove that the accused knew or expected that Reece Kovacs would know of his presence at the time of the robbery and his ability to assist in the robbery if called upon to do so.
The Crown must also prove that the coercive effect of the accused and the co-offender operated, either to embolden or reassure the accused in committing the crime alleged.
Joint criminal enterprise considerations
The Crown relies on the principle of joint criminal enterprise, whereby two or more persons reach an agreement to carry out a particular criminal activity and each is held to be criminally responsible for the acts of another participant in carrying out that activity, regardless of the role played by any particular participant.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, and that each participant agreed to do all the acts with the relevant intention, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.
The accused is charged with having attempted to discharge a firearm, namely a pistol, with intent to cause grievous bodily harm to Beshara, contrary to s 33A(1)(b) of the Crimes Act.
The allegation concerning Count 4 is that, after the accused had punched Beshara in the upstairs bedroom, and Beshara had brandished a knife from under the bed, the co-offender had come upstairs and pulled the trigger of the silver pistol at Beshara four to six times, with the pistol jamming up.
| Elements: The Crown must prove beyond reasonable doubt each of the following elements of the offence. That: The accused attempted to discharge a firearm; AND At the time, the accused intended to cause grievous bodily harm to George Beshara. |
The Crown must prove beyond reasonable doubt that the accused intended to commit all physical acts which would constitute the crime attempted in circumstance which make those acts criminal.
The Crown must also prove beyond reasonable doubt that the accused, with that intention, did some act toward committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime.
It is the Crown case that the co-offender held the silver pistol towards Beshara and “clicked” the silver pistol. Beshara’s evidence was that he heard a click ‘four or five times’, but each time the co-offender tried to shoot, the gun jammed up. Jones also gave evidence that she heard “little clicking noise”, and that “there was about six clicking noises”.
Grievous bodily harm is “really serious bodily injury”. The word “really” indicates “grievous bodily harm” is a more serious form of injury than actual bodily harm. Grievous bodily harm also includes any permanent or serious disfiguring of the person (Crimes Act, s 4).
It is the Crown case that the co-offender pointed the pistol at Beshara and “clicked” the pistol numerous times while standing a couple metres away from Beshara.
Joint criminal enterprise and extended joint criminal enterprise considerations
The Crown relies on the principle of joint criminal enterprise, whereby two or more persons reach an agreement to carry out a particular criminal activity and each is held to be criminally responsible for the acts of another participant in carrying out that activity, regardless of the role played by any particular participant.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the elements which make up that crime, was committed, and that each participant agreed to do all the acts with the relevant intention, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that the accused was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.
In the alternative, the Crown relies on the principle of extended joint criminal enterprise. This principle applies where, in carrying out the joint criminal enterprise, one of the participants commits an additional offence that was not the crime that they had agreed to commit but was one that at least one or some of the other participants foresaw might be committed. In such a case, that participant who foresaw the possibility of the commission of the additional offence would also be guilty of the additional offence. The Crown alleges that the accused was a participant in a joint criminal enterprise to commit the offence of robbery armed with a dangerous weapon and foresaw that the additional crime of attempt to discharge firearm with intent to cause grievous bodily harm might be committed. For the accused to be guilty of the additional crime, the Crown must prove beyond a reasonable doubt that he foresaw the possibility that this crime might be committed in carrying out the joint criminal enterprise. The Crown would need to establish that the attempt to discharge of the pistol, which was loaded, was foreseen by the accused as a possible occurrence in carrying out the armed robbery.
It is the Crown case that the co-offender was holding the pistol visibly when he and the accused entered the premises, that the co-offender hit Beshara over the head with the pistol in the presence of the accused, and that the accused had called out to the accused to come upstairs when Beshara had pulled out a knife beneath the bed, moments before the co-offender attempted to discharge the pistol.
| Transcript reference | Specific reference in evidence | | EIC: page 235 | From line 39 to 50: Q. That's okay. What's the next thing you do remember? A. Well, when I was screaming out for them to stop, the guy with the gun came over to me and told me to shut the fuck up, and he pushed my head down on the table and put the gun behind my head. That's when - that’s, like how that - so, once they stopped doing that to George, then that happened. Q. When he put the gun to your head at the table, what happened next? A. Well, I just sat at the table, I had my head on the table, and he just put the gun towards - at my head and told me to shut the fuck up. Q. Where was the male that didn't have the gun at this time? A. With George still. | | EIC: Page 236 | From line 26 to 41: Q. How were you positioned when he told you to take your jewellery off? A. I'm not sure if I was still at the table there or if it was just after that time, like, directly after that time, because I don't think I was on the table when I was taking my rings off my fingers. Q. Where do you think you were? A. I was sitting on a chair. So, I think after I got up off the table, I sat on a chair and then I took my rings off. He asked me to take my jewellery off. Q. What was he doing with the gun while he asked you to take your rings and jewellery off? A. Just was holding it. Q. Where? A. In his hand. Not - I don't believe he was - I don’t think he pointing it at me. | | EIC: page 237 | From line 10 to 17: Q. So, when you were putting the jewellery in the bag, do you remember if George was still there at the table at that time? A. Yeah, he was still there. Q. What about the other male intruder, the one without the gun, do you remember where he was? A. Yeah, he was with George, he was with George still, he was asking George, or both of us, to go upstairs. | | From line 33 to 43: Q. After you put the rings in the backpack, what’s the next thing that you remember? A. That’s when George and I – actually, sorry, I’ve made a mistake. I think I’m getting confused. Because I don’t think George was there when I had to put my rings in the bag. I think George might have already been upstairs. And George is – and I’ve explained that when George is downstairs still. Q. Do you remember at what point George went upstairs? A. At around the same time that I was on the table with the gun on my head So, I think at that time, George – the other guy was asking George to go upstairs. | | XN: Page 285, commencing at line 11 to end of page | From line 41 to 50: Q. You then gave evidence about jewellery being taken off. Am I to understand - because you fixed that up in your evidence today. Am I to understand that that's a different time? A. No, it's not a different time. Same day, same time. Q. No, sorry. I'll rephrase that. I don't mean a different day. I mean a different time to the time that your head is on the table? A. Yes. | | XN: Page 286, whole page | From line 1 to 18: Q. There's a time when your head's on the table with the gun, or at least something in the back of your head that you feel? A. Yes. Q. But that's not when your jewellery is taken, is that right? A. No. No. Q. When your jewellery is taken, George is well and truly upstairs? A. Yes. Q. You said that you were standing when your jewellery was taken? A. Yes. Q. And the man with the gun was not holding it at you at that time, is that right? A. No, that's correct. Q. So, he had it next to him, or in his hand-- A. Yeah. | | XN: Page 287, whole page | From line 5 to 26: Q. A gun being held to the back of your head is a pretty important event, isn't it? A. Very. Q. And it would stand out in your memory? A. Very. Q. You would tell the police that? A. Well, I, that, see, I didn't tell them that night. I don't know why I didn't tell them. It's like I didn't tell them in me statement that - sorry, not supposed to-- Q. Well, because you were asked questions about this in November, yes? A. Yes. Q. And you realised that there were things that you hadn't included in your statement in May, didn't you? A. Right. Q. And you know you never said to the police that your head was placed on the table, and that there was a gun to the back of your head when you were downstairs with your head on the table? A. What are you trying to say? | | XN: Exchange continues in page 288 to 289 | | | XN: Page 289 Line 47 to 290 line 10. Also in exhibit 7, paragraph 25 | Q. What you said to the police about the only time that there is a gun to your head was, and this is after George is upstairs, "The same white guy was holding the gun and pointing it at me, he said, 'Get on the floor and don't look at me.' When he said this, I sat on a chair, he told me to, 'Get off the chair and lay on the floor.' I lay face down on the floor and I could feel the metal of the gun being held at the back of my head, I was extremely frightened that he would shoot me to the back of the head, he held the gun against my head for a few seconds. The guy said, 'Where's all your gold?' I said, 'I don't have any gold, I've only got these.' I showed him my gold rings on my left hand. He said, 'Take them off.' I took my rings off and put them on the chair beside me. He said to Reece and Emily, 'Take off any gold that you've got.' I didn't hear them say anything. I said, 'Youse are going to pay for this.' He said, 'Shut the fuck up you dirty slut'." | | XN: Page 290 to 291 line 31. | |
R
Parkes [2025] NSWDC 144
(1998) 197 CLR 250
I note that in relation to accepting the evidence of any witness I am not obliged to accept the whole of the evidence of any such witness. I may, if I think fit, accept part or reject part of the evidence of a witness. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such an inference is the only reasonable inference that can properly be drawn from the proven facts.
I note that the accused did not exercise his right to silence at the time of his arrest on 1 June 2022. He freely entered into an electronically recorded interview with investigating police (ERISP).
The Crown alleges that the accused committed four offences on 12 May 2022. I must consider each individual count separately with reference to the evidence that is relevant to it. I must not take a global approach and conclude that because the accused is found guilty or not guilty of one of the counts, he must therefore as a matter of course be guilty or not guilty of any other count.
There is no legal requirement that the verdicts be the same. I am permitted to find the accused guilty of one offence and not guilty of any of the other offences if there is a logical reason for doing so.
The accused has not given evidence in his case. I remind myself that an accused person may, by giving evidence or call other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or part of the Crown case, but there is no obligation to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. I acknowledge that the accused bears no onus and that he is presumed to be innocent unless and until I am satisfied beyond reasonable doubt by the Crown that he is guilty of each of the counts. Whilst the accused may give evidence in relation to the whole or any part of the Crown case by way of explanation for it, or by way of additional matters which he may wish to raise, he may equally elect to give no such explanation nor call any evidence in that regard. Accordingly, the accused is entitled to say nothing and make the Crown prove his guilt. I note that the right to silence and the presumption of innocence that all members of our community enjoy would be utterly meaningless if it were otherwise.
Accordingly, the accused’s silence in court cannot be used against him. The accused’s election not to offer an explanation of the whole or any part of the Crown case by giving evidence constitutes no admission by him and I must not draw any such inference from that fact. Further, I must not use his election to plug or fill gaps in the evidence tendered by the Crown and I cannot use it as to the weight to be given to evidence in assessing whether the Crown has proved its case beyond reasonable doubt. I remind myself that there may be many reasons why an accused person would elect not to give evidence. I must not speculate as to what those reasons are or what the accused may have said if he had given evidence.
At about 6:44pm the accused walked away and sat on a machine on his own and Kelly joined him shortly thereafter. At 6:51pm, Beshara and Jones left the Tavern whilst the accused and Kelly remained. At 6:58pm, the accused and Kelly were still at the Tavern sitting at the gaming machines.
The accused and Kelly had been transported to the Tavern, and to a second gambling premises, by Heng. Heng returned the accused to his supported accommodation in Doonside sometime before 8:00pm.
Having left the Tavern, Beshara and Jones returned to the property. Between 9:30pm and 10:00pm Reece Kovacs (Kovacs) and Emily Heffernan (Heffernan) joined Beshara and Jones at the property.
Sometime after Kovacs and Heffernan arrived at the house two persons, one of whom was the co-offender, forced their way into the house. The co-offender was armed with a .38 super calibre pistol. Beshara was assaulted by the two intruders, before being forced up the stairs and into a bedroom containing several safes by the second offender. In the meantime, the co-offender remained in the downstairs living area of the house taking property, at gunpoint, from Jones and Kovacs.
At some point thereafter the co-offender and Jones (not necessarily at the same time) made their way upstairs and entered the same bedroom. Beshara engaged in a physical altercation with the second offender. Beshara also engaged in a physical altercation with the co-offender. During this altercation a shot was fired from the pistol resulting in a bullet hole in the bedroom wall. A cartridge case located in the bedroom had been fired from the pistol which was later found in the foot well of the front passenger seat of a vehicle occupied by the co-offender. The two males thereafter fled the scene. Beshara smashed the bedroom window before yelling out to ring the police.
At 10:17pm, two triple-0 calls were made by other residents of Marcia Street who had heard glass breaking, shouting, including the words “call the police" before seeing two male persons jumping the fence running through an adjacent parkway.
At 10:24pm, police attended the house and spoke to Beshara and Jones. Beshara told attending officers “They shot at me. They shot me with a gun." Beshara told police that the gun was “a pistol". When another officer asked which way the assailants went, Beshara pointed in the direction of the rear of the house at the reserve area and said, “one of their names is Dre." Jones was present when this conversation took place. When attending police asked how many shots Jones said, “just one, he tried to do it but it didn't go off". At about 10:50pm, Jones told attending police that she knew one of the assailants as “Dre."
A crime scene was declared at the house. Police commenced searching the house and performed a crime scene examination which continued until the next morning. Various items were seized from inside the property including a knife with blood, and a pole with a knife attached, both of which were forensically examined. Various DNA was recovered from the knife blade which originated from at least two individuals, with the co-offender and Beshara unable to be excluded as contributors. The handle of the pole with a knife attached similarly had DNA recovered with a major contributor being Beshara.
Multiple fingerprints were uplifted and later analysed. Some of those fingerprints were not suitable for comparison. The accused was not identified in any of those results as the maker of any of those prints that were suitable for comparison.
DNA swabs were taken from various locations in the house. The accused was not identified as a contributor to those DNA profiles that were suitable for interpretation. There was a tape lift taken from the fired cartridge case (XF000263775) found in the bedroom however the profile was too weak for analysis and comparison.
Around the time of the commencement of Aiono’s shift (11:00pm) he saw the accused at the premises and heard the accused speaking to a female he knew as the accused's girlfriend. At the time of speaking to the accused he was not bleeding and appeared to be no different to other occasions he had been involved in the accused's supervision/support. The accused asked Aiono to take him to a local pub. Aiono refused to do so given it would have been in breach of curfew rules. Aiono saw the accused at the time of changeover of the shift at 7:00am the following morning at which time the accused was in the company of his girlfriend.
Beshara was taken to Westmead Hospital and treated for various injuries including two lacerations to the head, one being 3 cm and the other being 2 to 3 cm. There was also a 1.5 cm laceration in the left medial maxillary region requiring washing and suturing. There was a further superficial abrasion to the left lateral maxillary region. There were superficial abrasions to the left wrist and a 3 cm laceration to the suprapatellar region on the left leg requiring washing and suturing. Radiological investigations found a mildly comminuted and depressed left parietal bone fracture, comminuted fracture of the left cheekbone and minimally displaced fracture of the left mandible.
After fleeing the house, the co-offender went to his house where he had been staying with his girlfriend Tamiya. The co-offender’s other friend, who was also present, saw the co-offender had been stabbed under his left armpit and Tamiya subsequently transported him to Nepean Hospital. At 3:55am, police attended Nepean Hospital and spoke to Tamiya who advised that the co-offender had come home at about 1:30am and she had brought him into hospital. Police body worn video showed the co-offender in a hospital bed with an injury to his left side under his armpit. He was subsequently treated for a 1 to 2 cm laceration with unknown depth to his left armpit. Black track pants worn by the co-offender were forensically examined with DNA recovered from the pants revealing the co-offender’s DNA and the DNA of Beshara.
On 1 June 2022 the accused was arrested and voluntarily engaged in an ERISP in which he denied any involvement in the home invasion. He told police that at the time of the home invasion he was at his supported accommodation in the company of Kelly. He remained there, in Kelly’s company, until the following morning. On 2 June 2022 Kelly freely provided a statement to police confirming the accused’s representations that she was with the accused on the night of the home invasion and remained with him until the following morning.
Jones gave evidence that when the assailants first entered the property, they were wearing head coverings. Relevantly, Jones gave evidence that the second offender was “wearing something around his head… I think it could have been a T-shirt, I'm not sure". She described this second offender as being “medium build, tall". Jones gave the following further evidence:
Whilst Beshara's evidence, in a general sense, was consistent with the undisputed facts that he was the victim of a violent home invasion perpetrated by two assailants, I am satisfied that there were significant aspects of his evidence which were either internally inconsistent or plainly untruthful. The Court had the opportunity of observing Beshara give evidence over several days. He was at times unjustifiably combative and, in my view, was generally an unimpressive witness. He at times was unresponsive to the question asked. He attempted on several occasions to volunteer information which sought to cast dispersions on other persons including the accused and Kovacs with no justification or basis. For example, he gave the following evidence:
Contrary to the Crown's submission, I do not accept that Beshara was a witness whose evidence could be relied upon with any confidence generally, and more specifically, with respect to his evidence where he purported to identify the accused as the second offender.
Apart from the general unreliability of Beshara's evidence, I am satisfied that his evidence supporting his identification of the accused was unsatisfactory and unreliable such that it ought not to be accepted.
Beshara's evidence demonstrated that prior to 7 April 2025 he had never asserted that he was able to identify the accused by reason of having seen his face on the night of the home invasion. I do not accept that this fact was a mere oversight. A critical aspect of Beshara's account is that he repeatedly claimed the accused was the second offender. Beshara had numerous opportunities when speaking to police, the DPP and when giving evidence in November 2024, to claim that the accused removed a balaclava he was wearing such that his full face was capable of being seen. It is not without significance that the police, when speaking to Beshara shortly after the home invasion, specifically asked how he was able to identify the accused as one of the assailants. He asserted only that he was able to do so by reason of his voice.
I do not accept as reliable or credible Beshara's claim, given in evidence in this hearing for the first time, that the assailant, which Beshara alleged was the accused, removed the balaclava to reveal his face. It is inconsistent with the second offender, taking considerable steps to hide his identity, to simply reveal his identity by removal of the balaclava. I do not accept Beshara's assertion that the offender allegedly did so in circumstances where he allegedly knew he had already been identified.
I find that Beshara’s belated claim of facial identification, which I do not accept, was an attempt to bolster his questionable identification of the accused.
As for Beshara's alleged voice identification, I do not accept this as being reliable. The only alleged distinguishing feature of his voice was that the accused spoke with a Jamaican accent which was “hard not to notice" and was an accent “you can't forget when you hear it".
The accused engaged in an electronically recorded interview with investigating police which proceeded over a period of approximately 45 minutes. Having listened to that interview, I do not accept Beshara's evidence that the accused speaks with a distinct and easily recognisable Jamaican accent.
I accept the accused's submission, in any event, that Beshara's voice identification should be approached with extreme caution given his clear disposition to believe that the accused was trying to rob him, and his propensity to jump to conclusions, without supporting evidence, about being set up.
In all the circumstances, I find that the evidence of Beshara purportedly identifying the accused as the second offender is inherently unreliable.
Whilst again it must be acknowledged that Jones gave evidence generally as to the fact of the home invasion consistent with the undisputed facts, there were significant aspects of her evidence which called into question her reliability generally and her ability to recall significant details as to what occurred during the home invasion. Her purported identification of the accused must be considered in this context.
In the statement provided to police on 13 May 2022, Jones referred to the “second male" involved in the home invasion. Given the activities attributed to this male at the time, the person Jones is describing is the co-offender. Jones in her statement described the co-offender as being “white". She could observe the co-offender’s “white skin around his eyes". In further descriptions in the statement, Jones again referred to the co-offender as the “white guy".
However, Jones conceded in evidence that she had seen the co-offender when attending court in November 2024. Jones accepted that the co-offender was an Islander with dark skin, consistent with the evidence of Beshara and Kovacs. Self-evidently, Jones's description of the co-offender as provided in the statement is inconsistent with the co-offender’s appearance. When Jones was cross-examined on this inconsistency, she suggested that what she really meant was that the co-offender was whiter than the accused. Jones denied using the word white when speaking to police, contending that it had been inaccurately recorded by them. However, this was despite Jones agreeing that she had read the statement multiple times and that it was accurate, truthful and there was nothing to amend.
I do not accept Jones's explanation for this apparent inconsistency. It is clear that Jones, when speaking to police the day after the home invasion, incorrectly described the co-offender in material respects.
Jones told investigating police in the statement on 13 May that Beshara was armed with a length of pipe which he used to defend himself. Further, Jones told investigating police that Beshara used the “pipe" to smash the bedroom window. Jones's description in this respect is entirely inconsistent with the unchallenged evidence of Beshara that he was armed with a knife, which he used to inflict a stab wound on the co-offender. Further, it was the unchallenged evidence of Beshara that he used his hand to smash the window, consistent with the objective evidence in the agreed facts that Beshara indeed suffered injuries to his hand. This is a further significant inconsistency as to Jones' observations and recollections on the night in question.
Jones also gave inconsistent evidence as to the production of a firearm against her head and/or the taking of jewellery from her. Those inconsistencies are identified by counsel for the accused which are annexed to this judgment.
However, the most significant inconsistency in the context of Jones’ identification evidence relates to the circumstances in which she alleged that the accused's face was revealed to her. In the statement provided to police on 13 May 2022 Jones said the following: –
The Crown relies on the evidence of the complainants’ conversation with attending police officers Senior Constable Lauren Catto and Constable Laurent Boutelet immediately after the co-offenders left the house in which they identified the accused as being involved in the home invasion (complaint evidence).
Two triple-0 calls were made at 10:17pm on the evening of the home invasion by other residents of Marcia Street, who had also seen two males jump the fence and run through the park. Police attended the house at 10:24pm.
At this time, immediately after the invasion, Beshara told police that the two offenders had shot at him with a pistol, and Jones stated that they had attempted to fire multiple shots but there had only one shot had been fired. Beshara told another officer that “one of their name’s is Drey”, and at 10:50pm Jones told Senior Constable Catto that she knew one of the assailants as “Dre”.
This complaint may be used in the following ways.
The accused stated that he attended the Tavern on 12 May also in the company of his carer who was waiting in the car. He described the carer as “an Asian guy". After being at the Tavern, the accused returned to his Doonside premises with Kelly where they remained for the night. He recalled going to bed at about 2:00am, having watched TV.
The accused recalled that he thought Beshara may have won some money at the Tavern on 12 May which he thought might have been in the vicinity of $300 or $400. When the circumstances of the home invasion were described to him, he denied any knowledge of it, saying that he didn't want to hear it as it did not make him feel good. He had heard a rumour that Beshara had alleged that he had identified the accused’s voice in the course of the home invasion and further that there was an alleged stabbing. When the allegations were put to the accused, he was “adamant" that it was not him and again offered to show his body and provide his DNA.
He had never heard of the co-offender’s name. When the accused was asked whether there was any reason his DNA or fingerprints may be found in the upstairs of that house, he said that there was no reason. He again maintained that he had never been upstairs at Beshara's house.
I do not accept the Crown's submission that the accused's evidence contained in his interview should be rejected. I do not accept that the accused's denial that he was at the property on the day of the home invasion would be considered as suspicious, in circumstances where the accused had stated that he attended the property at a frequency of every second day and that he had no specific recollection of 12 May. Further, that suspicion would be aroused from the accused recollecting the night before. I do not accept that those answers do not “sit well together" as submitted.
The accused candidly acknowledged in his interview with police that he was aware of the home invasion and more particularly, was aware that Beshara had alleged he was involved in the home invasion. It is not as if the accused was being asked to recollect his movements around the time of the home invasion for the first time when interviewed by police. To the contrary, the accused had clearly been aware of the home invasion and the fact that he was allegedly implicated. In those circumstances it is unsurprising that the accused, having had the opportunity to reflect on the circumstances prior to being interviewed, had considered his movements in the days prior to 12 May and that day in particular.
I do not accept the Crown's submission that the accused’s denial that he met anyone at the Tavern “sits uncomfortably" with his later acknowledgement that the spoke to Beshara on that day. The specific question asked of the accused was, “Did you meet anyone while you are there?". His denial in this respect is not inconsistent with subsequently acknowledging however that he did see Beshara at the Tavern and spoke to him briefly. Clearly the question of meeting someone has a connotation of a deliberate preplanned event. Rather, consistent with the CCTV, the accused happened to come across Beshara and Jones, who had both been at the Tavern for some time prior to the accused arriving with Kelly.
I do not accept that the accused’s statement that he probably went to bed at about 2:00am is necessarily inconsistent with Aiono’s evidence. Aiono was not specific as to when any alleged checks were done on the accused. Aiono simply answered in the affirmative to the question as to whether he checked on the accused as part of his shift. There is no specific evidence that such checks were performed prior to 2:00am. The evidence is insufficient to permit the court to draw an adverse inference against the accused by finding his statement to police is in any way inconsistent with Aiono’s evidence.
I do not accept that there is any inconsistency in the accused’s statements to police that initially he thought Beshara had won $300-$400 but later suggested he was guessing those figures. I do not accept that the accused’s statement to police that he did not feel good about hearing the details was somehow inconsistent with his evidence that he otherwise had heard some information about the home invasion. The mere fact that he may have heard such details before does not mean that when the details were further put to him that he could not feel uncomfortable about them being repeated or provided.
Contrary to the Crown's submission, I am satisfied that the accused's responses to police were direct, forthright and made without hesitation. There is no evidence that the accused was aware of the nature or extent of the police investigations. There is no suggestion that the accused was aware of what evidence police had of the accused's movements in the days prior to 12 May or on 12 May. His evidence as to his prior interaction with Beshara, and his movements on the day of the home invasion, were entirely consistent with objective evidence otherwise available.
The accused freely admitted that in the days prior to the home invasion he had had a disagreement with Beshara. The accused told police that he had attended the Tavern in the company of his girlfriend where he happened to come across Beshara. This is consistent with the CCTV. The accused stated that he was taken to the Tavern by an Asian carer, consistent with the evidence of Heng. The accused stated that he returned to his Doonside residence with Kelly, consistent with the evidence of Heng. The accused told police that Kelly remained with him throughout the night and was still present the following morning, consistent with the evidence of Aiono.
The accused made several admissions which potentially could be perceived as against his interest. He freely admitted being a drug user and regularly purchasing drugs from Beshara. He freely admitted, as previously noted, that he had a disagreement with Beshara in the days prior to the home invasion. Whilst he admitted that he had been inside Beshara's home, he steadfastly denied having ever been upstairs. Indeed, he maintained his denial in this respect despite questions put to the accused which suggested his DNA or fingerprints may be found in the upstairs area of the property. His statements to police in this respect are consistent with Beshara's evidence that the accused had never been in the upstairs area of his property prior to 12 May 2022. The accused freely volunteered to provide his DNA if necessary.
In all the circumstances I accept the accused's statements to police, including his denials that he was ever involved in the home invasion. Consistent with the Liberato direction referred to above, in these circumstances, irrespective of any findings otherwise, the accused must be found not guilty of each of the counts on the indictment.
Even assuming that a vehicle was available to the assailants, there being no evidence of this being the case, given the timing of the triple-0 call, the accused would only have returned to his residence at somewhere between 10:30pm and 10:45pm, being the period immediately prior to Aiono’s arrival at the accused's home. On the assumption the accused was on foot, he could not have returned to his home prior to Aiono’s arrival.
Assuming the accused returned to his home, having completed the home invasion, by vehicle, he would have returned home only shortly before being spoken to by Aiono. On the Crown case, the accused had just been involved in a significantly violent home invasion in which he was subjected to an assault with a knife by Beshara. However, it was Aiono’s evidence that when he checked on the accused, he had no blood and otherwise appeared normal.
It was the evidence of Beshara that after the two assailants entered the property and assaulted him, the accused demanded to know the location of the safe before dragging Beshara up the stairs. The only reasonable inference is that the assailants knew Beshara had safe(s) in his home. Indeed, when spoken to by police on the morning after the home invasion, Beshara said:
It must be acknowledged that Kelly's reluctance to attend court, including the failure to comply with a subpoena, necessitating the issue of a bench warrant, does not reflect well on her. However, her apparent reluctance to attend court is not necessarily consistent with an assertion that her alibi statement provided to police was untrue.
It must also be acknowledged that police evidence, consisting of the alibi statement, was not otherwise tested and she was not subjected to cross-examination. However, this must be considered in the context that it was the Crown who tendered Kelly's statement in its case despite the observations of the High Court in Dyers v T**he Queen [2002] HCA 45, to the effect that the Crown had no duty to call Kelly. Indeed, it is somewhat curious that the Crown insisted on making every attempt to call Kelly, and in her absence, to tender her statement in the Crown case, to only then seek to undermine its own evidence.
I do not accept that Kelly's assertions contained in her statement are otherwise undermined merely because she was convicted of an offence of dishonesty at the time of providing the alibi statement. This fact does not translate into a finding that she lied to police when providing her statement on 2 June 2022.
I am not satisfied beyond reasonable doubt that the alibi evidence should be rejected.
Accordingly, I am not satisfied that the Crown has established beyond reasonable doubt that the accused was the second offender in the home invasion which occurred at the property on 12 May 2022.
Accordingly, I enter the following verdicts:
On Count 1, break and enter into a dwelling house and committing a serious indictable offence therein in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act, I find the accused NOT GUILTY. To the extent that the Crown relies on the statutory alternative, the accused is found NOT GUILTY.
On Count 2, robbery armed with an offensive weapon in circumstances of aggravation, contrary to s 97(2) of the Crimes Act, I find the accused NOT GUILTY*.* To the extent that the Crown relies on the statutory alternative, the accused is found NOT GUILTY.
On Count 3, robbery in company, contrary to s 97(1) of the Crimes Act, I find the accused NOT GUILTY.
On Count 4, attempt to discharge a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(b) of the Crimes Act, I find the accused NOT GUILTY.