R v Sun [2021] NSWDC 837 | Case summary

District Court of NSW|2021-04-30

Introduction

On Thursday March 4, 2021, the trial of Young Soon Sun was allocated to my court to commence at the conclusion of a trial in which the jury would be on verdict on March 8, 2021. The Crown called the accused for trial upon two counts. These were:

Count One Between 4 September 2018 and 10 September 2018, at Burwood in the State of New South Wales, did supply a prohibited drug, namely, methylamphetamine, being more that the indictable quantity. S 25(1) Drug Misuse & Trafficking Act 1985 - Law part code 92283

Count Two Between 17 September 2018 and 26 September 2018, at Burwood and elsewhere in the State of New South Wales, did on three or more occasions during a period of thirty consecutive days, supply a prohibited drug, other than cannabis, namely methylamphetamine, for financial or material reward. S 25A(1) Drug Misuse & Trafficking Act 1985 - Law part code 28937

Background

After the trial I published a judgement subject to restrictions pending determination of proceedings in the Court of Criminal Appeal which included consideration of an application by the accused at the outset for the exclusion of the entirety of the evidence in the proposed Crown case, relying upon s 138 Evidence Act 1995: Decision Restricted [2021] NSWDC 834.
The material then present provides background and context for application by the Crown the subject of this judgement.
The accused's proposition was that under the threat of violence to the accused and his family, a civilian participant in the subject controlled operation (Witness A) had induced him to participate the activities upon which the Crown prosecuted. The assertion was that whatever role the accused played in the activities leading to his arrest, at all times he was acting under duress of sufficient moment to relieve him of liability for his actions. He also attributed blame to another witness in the Crown case, Ms Song Han, to the effect that at all times he acted in the various transactions at her behest, that she was the source of the methylamphetamine for the transactions, and that he acted under her direction and control.
The evidence upon which the accused moved to exclude the evidence in the Crown case was not in an admissible form to prove the facts that he alleged in support of his application, confined to an affidavit from the accused's solicitor annexed to which was a proof of anticipated evidence from Haidar Al-Jeezai who claimed to have engaged in conversations with the accused when he allegedly represented his association and interaction with Witness A including alleged threats. In that form the evidence did not rise above direct evidence from the solicitor of the creation and existence of the document from Al-Jeezai said to contain his alleged perception of representations to him by the accused. Hearsay evidence so presented could not achieve the outcome sought upon this critical issue.
Argument commenced on 4 March 2021 after which I adjourned to allow time to review the material provided and conclude a trial in which I was then presiding. The argument upon this point concluded on 10 March 2021 when the accused's counsel withdrew the application. The trial proceeded.

The Murder of Zadoun Al-Qaseer

The trial proved to be lengthy, extending well beyond the estimate given by the parties. The accused presented a case in which he gave evidence. This did not include evidence of violence in the John Morony Centre, the subject of the Crown application. Neither was Witness A, against whom the evidence spoke cross-examined upon the matters subsequently raised with Haidar Al Jeezai.
As an aside, the transcript of his evidence reveals that at least on occasions this witness was attributed with Haidar as his family name. It is not entirely clear by what name he is known.
The Crown application arose in respect of evidence on 29 April 2021 and thereafter sought from Haidar Al Jeezai to support the submission that Witness A was a person to be feared.
At page 2098 in the jury's presence Haidar Al Jeezai described his placement at the John Morony Centre where he met the accused, who he knew to be a doctor. At line 7 on that page, Q. What did you observe about Mr Sun at John Morony Correctional Centre? A. What do you mean "observe"? Q. Like what did you know about him? A. I know he's a doctor. Everybody been saying he's a doctor, so that's how get to know him and, basically, we become friend and, yeah, so ‑ it's inside. It's a gaol, you know. It's a holding cell, and‑‑ Q. Did you hang around with Mr Sun? A. Correct. Q. Was that on a regular basis? How regular was your association with Mr Sun? A. Inside the gaol? Q. Yes. A. Almost every day.
He described the groups to which inmates belonged according to their culture, including Lebanese prisoners of the same heritage as Witness A.
At page 2099 line 17: Q. They're the groups, you're saying. They're the main groups? A. They're main group. Yeah. Q. Did you see Sun interacting with one of those groups or not? A. Yeah. One time. Like, you mean, argument? Q. No, no, interacting as in hanging around with? A. Hanging around? He hang around with his cellmate, yes. Q. I'm talking about the groups. You referred to some groups. The Lebanese, the Islanders, the Aborigines? A. No, the Lebanese people. Yeah. Q. You're saying that he hung around with the Lebanese group? A. Yeah. Q. That Lebanese group, can you specify who of that group you knew? Did you know them by name? A. Yeah. As far as I can remember.
He offered his recollection of names from the Lebanese group, including a man named Haytham. At page 2100 line 5. A. Yeah. Haytham. He's the leader of ‑ they call it vice‑president of a gang. They call them the bikie gang, they call them Fink. Q. Finks? A. Think or Fink. I don't know what's. Yeah. So this guy, there is ‑ there's a guy called Abraham ‑ Abraham Tangy. Q. Ibrahim or Abraham? A. Abraham ‑ Abraham Tangy. Q. Abraham, yeah, Tangy. A. There's a guy called Hassan I know. Q. Hassan? A. Yeah. But I don't know what his surname. There's a guy called Diab, big guy. Q. Diab, yep. A. Yeah. Dib. Diab. He's ‑ yeah. Q. Diab Dib? A. Yeah. There is one called Micklo. Q. Micklo, yep. A. As well. And also there is Uncle Witness A. Q. Uncle Witness A? A. Mmm. So they call Uncle Witness A, so don't get me‑‑ Q. Is that Witness A? A. Witness A. Witness A. This is the names. This is like the main people well knowing. Yeah. Q. When you say, "the main people well known," what do you mean by that? A. Like he can't ‑ you can't cross them. Q. When you say you can't cross them, you mean you can't upset them? A. Be polite to them. You can't upset them, because they can harm you. They've got power, you know, inside. And, look, they control the pod. Q. They control the pod? A. Of course. Q. Just, for example, Abraham Tangy, what do you know about him? And just before we get to that, when were you at John Morony Correctional Centre? When? So you've answered that. I think it was between April to - A. The end of April. Q. The end of April to 30 June ‑ 26 June‑‑ A. 30th of ‑ 2017. Q. Go on about Abraham. A. Abraham? Q. Yeah. Abraham Tangy. A. Yeah. Q. What do you know about him and what happened? A. He's a head ‑ he's a head sweeper in the ‑ and up ‑ and pod ‑ they ‑ Archerfield House in the gaol. So yeah. Also I ‑ in the end of ‑ in the end of June, mid‑June, end of June, I become ‑ I went downstairs from upstairs, downstairs, to the main room, the big room. So we become in the same room together, cell, in the same cell. Q. With Abraham Tangy? A. Correct. Q. Go on. So Abraham Tangy. Let me take you to 19 June 2017, that date. A. If you could not talk about that, please. That's concern of my safety.
The significance of that date was subsequently revealed. On that day Tangi murdered a man in the John Morony Centre and upon conviction was sentenced by Rothman J [1] . Q. No, what ‑ it has to be mentioned. What do you know happened on that date? A. I don't want to talk about it. Anything can happen outside. I might get killed. So I don't want to mention it. This is my life here online, you know. There's a guy got murdered over there and that's it. So all‑‑ Q. On that day? A. On that day. That's it. Q. I want to ask you, in the morning of that day, so the person got killed later that day in the afternoon. A. One second. Q. No. A. Is it any media or anything in here, so ‑ because‑‑ Q. It's a closed court. A. Yeah. Q. On the morning of that day, what ‑ did you see Witness A? A. Mr Mando, before I get into this, whatever I'm going to say in this Court, it's not going to come outside? That's all ‑ I need to know this. Q. There's non‑publication orders, I believe. A. I can't answer this question unless my ‑ this is ‑ this is my life in here, and you're asking me very sensitive questions. Q. There's non‑publication orders in place. There's suppression orders in place. There's a closed court order in place. A. So there is a closed court, and there is no public‑‑ Q. Yes. A. Okay. Q. On the morning of that day, did you see Witness A? A. Yeah. Q. Yes. Who did you see him with? A. With Haytham. CROWN PROSECUTOR: Your Honour, I object to this evidence.
I invited the jury to retire so that I could hear the Crown's submission. The Crown opposed the evidence noting that this was the first time it was brought before the court. It was not led from the accused who had by this time given evidence. I suggested the Crown might be premature in her objection and that to know that the evidence might be the preferred course would be to have it in the absence of the jury then to be assessed. Evidence on the voir dire commenced at page 2104. Q. On the morning of 19 June 2017, did you see Witness A? A. Yep. Q. And what did you see him doing? A. He's hanging and ‑ he's hanging with Haytham because he walk with Haytham. He walk with Micklo all the time. So, on that day, there ‑ everybody was outside, I think, yeah, and top of ‑ was on top of my head was ‑ that was outside because the ‑ the ‑ John Morony, it's two part. There's inside, and there's outside.
At line 31, Q. And what did you see him doing on that day with whoever he was with? A. What ‑ what I saw him doing? Q. Yes. A. Look, this back then ‑ there was ‑ daytime in the morning. Q. Okay. A. Are you referring to the incident? Q. I'm asking you to say what you saw. A. There was a verbal argument, but‑‑ Q. Verbal argument between who and who? A. Between Witness A and ‑ and Zaydoun Al‑Qaseer.
At page 2105 line 10, initially in response to my question, Q. Was he the man who was injured later in the day or killed later in the day? A. He got murdered that day. MANDO Q. So, Zaydoun Al‑Qaseer was the man who got murdered later that day. A. Yeah, yeah. Q. By Abraham Tangi. A. Correct.
In the absence of the witness I asked counsel for the relevance of this evidence. Counsel spoke of the significance of Tangi as a member of this group and of the other man murdered after he had an argument with Witness A, to support the argument that Witness A had influence. From page 2105 the discussion continued, from which I quote the representations of counsel: HIS HONOUR: [Did] you ask Witness A anything about that in his evidence? MANDO: The argument with Zaydoun? HIS HONOUR: Yes. MANDO: No. HIS HONOUR: Why not? MANDO: Because it has only been brought ‑ this argument has only been brought to my attention today. HIS HONOUR: How long have you been in this matter? MANDO: Your Honour, since early last year.
I commented upon other aspects of the use counsel sought to make of information which he said came to him this day. The transcript continues, MANDO: Your Honour, this witness has only given me that information today and maybe for his personal safety reasons he hasn't disclosed that before, but that's what he said today.
This proposition was surprising considering that, filed in the proceedings was the notice of motion seeking rejection of all of the Crown case which relied upon hearsay representations attributing facts to this witness and which did not include any representations of the facts now sought to be elicited, counsel did not intend to call the accused to give evidence upon any of the matters raised in that application, and the accused had by this time given evidence, presumably after instructions to counsel, without any reference to what this witness was offering.
I commented that at least from the time of the initial application counsel had a document in the nature of a proof of evidence, but for the first time, today, he became aware of the evidence he now sought to lead. I sought assistance as to the probative value of the proposed evidence. The transcript continues at page 2106 line 38, MANDO: ‑‑Witness A and Tangi were in the same group. That's number 1. Number 2, he's just given evidence on the voir dire that he saw Witness A and the person who was killed having an argument that day and, subsequently on that day, that man who is arguing with Witness A is murdered. It's of obvious relevance, your Honour. HIS HONOUR: You and I have had differences in the course of this trial, Mr Mando. If something was to happen to you on the street, would it follow from that that I'd be connected to that? MANDO: No, your Honour, but in the context of Tangi and Witness A being in the same group and in a prison environment where it's all groups and gangs it's different. HIS HONOUR: There's no evidence of what the argument was about. There's no evidence of precisely when the argument was, of what duration. MANDO: We can get to that.
Counsel acknowledged that he had at this point adduced the substance of the proposed evidence. The Crown expressed her outrage at the course taken. There were robust exchanges between the advocates at the bar table from time to time.
The debate between counsel and the bench continued. It is fair to say it was vigorous. Counsel repeated that he had led the substance of the evidence he anticipated but there might be further details as to what else happened. He submitted that he could not predict verbatim what the witness might say and acknowledged that the proof of evidence he had was what he sought to use in his earlier application, dated in February that year, but which did not include any representation consistent with the evidence he led this day. Putting that document to one side I asked whether he had a proof of evidence or written instructions or some other document upon which he could rely when eliciting evidence from this witness. He responded at page 2108 line 41 (my emphasis), MANDO: Your Honour, I cannot stress this enough. Literally this morning in conference outside this courtroom, this witness volunteered that information about Tangi murdering that guy and him seeing Witness A with the murdered person that morning arguing. He volunteered that information to me this morning. I was in Court. HIS HONOUR: The short answer to my question is you do not have anything in writing from this‑‑ MANDO: Signed to that effect, no. HIS HONOUR: Please let me finish. You don't have anything in writing from this witness describing in any detail the facts which you are seeking to elicit from him now? MANDO: There's no signed statement, because I literally got the information this morning. HIS HONOUR: You've made notes of it, I take it? MANDO: Yes. HIS HONOUR: That's the extent of anything you have? MANDO: Yes.
The witness was recalled and examined further on the voir dire. At page 2109 from line 38 (my emphasis), Q. When you say you saw an argument between Witness A and Zaydoun, how close were you to‑‑ A. Look, I wasn't ‑ listen. I was not close. Okay. So ‑ but when Zaydoun came, when Zaydoun came ‑ coming into the door, because there's ‑ I don't know how to explain to you the situation. There's the office and there's a door in front of the office. When Zaydoun was coming inside, he was talking to his friend about Witness A swearing, you know. They ‑ so that's how they ‑ this is what I mean. A verbal argument. Because they was, like, near the toilet outside. Now ‑ and there's a lot ‑ not just ‑ there's a lot of them. But the main incident, he was swearing at two people, him and Tangy ‑ to Abraham Tangy. Q. You're talking about Zaydoun? A. Yes. Q. Zaydoun was swearing to Witness A and Tangy? A. Yeah. Because what I ‑ what I understand from Zaydoun‑‑ HIS HONOUR Q. Sorry, I thought you said that you ‑ Zaydoun talked to his friend about Witness A swearing, did I‑‑ A. No, no. Q. ‑‑not hear you say that? A. What I ‑ no, no, what I understand from Zaydoun when he coming in ‑ because I was standing in the door over there, and the ‑ and there's two main ‑ two doors. I was in the middle and the door was further down. Q. So that I understand, you were told these things by Zaydoun? A. Yeah. Before he die. Yeah. MANDO Q. What were you told? A. Like, while we walk past, you know, like ‑ sorry about my "fuck Witness A" and this piece of shit, whatever, you know. He always want to rip me off. And then everybody let go. We got locked in and forget about it. Sorry. Before ‑ and also Tangy, he went in the middle. Like, he was walking inside ‑ he was walking outside and Zaydoun was walking inside. And this guy said like F‑word to each other, both of them, and then afternoon the drama happened.
At page 2111 line 1, Q. You learned of these events because Zaydoun told you about them; is that the case? A. Yeah. I saw his reaction and he was angry. Yes. Yes. Yes. Q. So this exchange between Witness A and whoever else, did you see any of that? A. To be honest, I ‑ I can't. I can't remember that. Q. You can't remember. A. Yeah. Q. Did you hear anything that was said by Witness A? A. No. And, like, it's outside. There are a lot of people, yeah, there. Q. So all of the information you have regarding this evidence that you're giving to the Court now is something that you were told by Zaydoun at some point before he died? A. Yeah. And the inmate as well. They know about it as well, because after he died they talked about it as well.
From line 36, Q. What do you know about what they were arguing about? A. About tobacco and drugs. HIS HONOUR: The question will be what were you told about what they were arguing about? MANDO Q. What were you told by Zaydoun about what the argument was about between him and Witness A? A. Tobacco and the drug. Q. Tobacco and drug? A. Yeah.
From page 2112 line 7, Q. When Zaydoun stated that to you, what did you understand that to be referring to? HIS HONOUR: No, Mr Mando. It's not a matter of what he understood. It's what he heard said. A. He want to rip them off for the drug. MANDO Q. Who? A. Witness A want to rip off Zaydoun. Q. And did Zaydoun tell you anything about what Tangi had to do with it? A. Tangi ‑ he had a fight with him, and then‑‑ HIS HONOUR Q. Who had a fight with whom? A. Tangi had a fight with Zaydoun inside the cell.
From line 47, Q. Did he ‑ did Zaydoun refer to Tangi in his discussion with you about what happened? A. Look, between him and Tangi there is an argument I don't know about, but while he was walking in, he called Tangi, like, "motherfucker" basically. Q. Listen to me. Listen to the question. You're referring to Zaydoun speaking to you and telling you things about this argument, right? A. Yeah. Q. In that discussion, did he say anything about Tangi? A. Are you talking about Zaydoun himself? Q. Yes, what he said to you. Did he complain to you about Tangi? A. No, he just ‑ while he was walking in, he did not complain to me, and I wasn't by myself there anyway. Like, there was a group as well. So, everybody seen this ‑ like, what he was talking about. It wasn't just me. And he swear ‑ in the same time sweared at Tangi as well ‑ Tangi ‑ in the same time while he was talking about Witness A. There's two things in one type.
The witness was led in evidence at page 2113 to the effect that he had seen the man Tangi and Witness A interacting and assumed that they were friends.
Further exchanges took place between counsel and the bench regarding the admissibility of the evidence in the form presented to prove that there was a dispute between the man Zaydoun and the man Tangi, who killed Zaydoun because of issues related to tobacco, after an argument between Zaydoun and Witness A about drugs and tobacco, all of which Zaydoun allegedly reported to Al Jeezai.
At this point the Crown brought to the court's attention the judgement on sentence delivered by Rothman J in R v Tangi (No 12) ibid. The facts upon which his Honour imposed sentence were, [3] The deceased, was 24 years and 5 months' old at the time of his death. He was significantly smaller and lighter than the offender. And he was less fit. [4] On or about 18 June 2017, the offender and the deceased had an oral argument. The argument continued from time-to-time until the assault the following day. As a result of one of the arguments, the offender was observed by his cellmate to be stressed and appeared to be extremely angry. There were two further incidents involving the offender and the deceased, after the initial oral argument and earlier in the day of 19 June. [5] That day, the offender waited for the deceased outside Cell 24 for some minutes, having prearranged to meet with the deceased and the offender ushered the deceased into his cell. [6] Michael Palalagi stood outside Cell 24, the offender's cell, where the assault occurred, and, on the version of events which I accept, held the Cell door closed so that no one was able to enter. [7] The Crown submits that the presence of Mr Palalagi and two other inmates was organised by the offender. That is certainly an inference that is available and which I am prepared to draw. [8] The offender and the deceased were the only persons inside Cell 24 at the time the deceased was assaulted. The offender stomped on the head of the deceased with his foot, probably twice, and at least once on the left shoulder. [9] Consistent with the verdict of the jury, the intention of the offender, in stomping on the deceased's head, was to cause grievous bodily harm or really serious injury. That intention is sufficient to support the crime of murder. [10] When the offender left the cell, he was described as being in a highly agitated state. Based upon the evidence provided, I am also satisfied that he was distracted.
Paragraphs 11 and 12 dealt with the deceased's injuries. His Honour continued at [13] There is some evidence to the effect that the deceased had a role in the supply of drugs in the John Moroney Correctional Complex, or more particularly at Archerfield House. The offender was the Head Sweeper in Archerfield House, which was a position of responsibility. [14] It is suggested, and I accept, that the disagreements between the offender and the deceased related to the deceased's view that he was a sweeper, with which, it seems, the offender disagreed and, further, the deceased questioned the offender's authority. But there are a number of possible motives for the disagreement. [15] The Crown relies upon significant planning for the offence. The evidence supports the irrefragable inference that the offender intended to confront the deceased and assault him, for which there was significant premeditation. [16] The altercation between the two men, prior to it moving into Cell 24, involved the offender grabbing the deceased by the shirt front, and the deceased responded by grabbing the offender, which may have exacerbated the offender's temper. This, and what happened in the Cell, may have resulted in a much more serious assault than was planned and, on that reasonable hypothesis, led to the offender causing, with the intention to do so, the grievous bodily harm (or really serious injury) which caused death. [17] The Court cannot lose sight of the fact that the fatal assault occurred in a prison where inmates are accommodated in close quarters, often with violent undertones. In the John Morony Complex, as with others, it seems that there were tensions between different racial groups. The deceased was of Middle Eastern background and the offender was an Islander, which may have exacerbated the tensions that otherwise existed between them. [18] The conclusion that the Court reaches is that the inflicting of grievous bodily harm was likely to have been planned. However, the Court is not in a position to be able to reach that conclusion beyond reasonable doubt. There is a reasonable hypothesis that while the confrontation was planned, as was the assault, the infliction of grievous bodily harm, and the formulation of the intention to do so, was opportunistic and arose from the nature of the confrontation, as it developed in the cell. Therefore, I do not treat the planning of the assault which occasioned grievous bodily harm, and led to the death of the deceased, as a factor to be used adverse to the offender or in aggravation of the sentence to be imposed. I do regard the planning of the assault as a matter aggravating the murder.
Nowhere here or elsewhere in this judgement is there any reference to a scenario strictly comparable with what the accused's counsel sought from Haidar Al Jeezai, though it must be acknowledged that the array of facts of which he asserted knowledge, from what he said he was told, include a violent dispute between the deceased and Tangi.
This aside, the Crown correctly noticed that Haidar Al Jeezai's evidence was that he did not see the argument, did not hear the argument, but heard the deceased say something to him, the description of which was vague and nebulous.
Counsel sought to rely upon s 65 Evidence Act 1995 which provides for an exception to the hearsay rule. Relevantly, the provisions include, 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) …, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) …. Note - Section 67 imposes notice requirements relating to this subsection. (3) …. (4) …. (5) …. (6) … (7) …. (8) The hearsay rule does not apply to - (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note - Section 67 imposes notice requirements relating to this subsection. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that - (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. Note - Clause 4 of Part 2 of the Dictionary is about the availability of persons.
The person said to have made the representation upon which the accused would rely was murdered, and therefore was unavailable to give evidence. There was no notice given by the accused of the intention to adduce the proposed evidence as required by s 67 of the Act. The evidence was first available to counsel, according to his submissions in court, on the morning that the evidence was led, there was no proof of evidence or any form of statement from the witness asserting these facts, but he had some notes of whatever conversation he had with the witness before court. Nonetheless counsel proceeded in his endeavour to put this before the jury without any notice to the Crown or to the court beforehand.
Section 67 of the Act provides, (1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state - (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction - (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.
The accused sought to adduce this evidence, and therefore s 65(8) of the Act renders inapplicable the hearsay rule to the evidence of a person who saw, heard, or otherwise perceived the representation. As noted in various commentaries the burden of the accused in this respect is far less than that of the Crown.
At page 2120 of the transcript, to minimise inconvenience to the jury to the extent possible, I suggested that the evidence continue upon another point and when that was concluded the resolution of this question could be pursued. Counsel referred specifically to s 65(2)(b) and (c) as relevant. He did not refer me to s 65(8). Neither did he address the notice requirements.
Resolution of this issue was thus deferred. Argument was presented on 30 April 2021.

Haidar Al Jeezai's Opinion of Witness A

The evidence moved to another topic when it resumed at page 2125 in the presence of the jury, ultimately leading to another question to be resolved. At line 16, Q. Just specifically in relation to Witness A, what were your observations of him? A. What's observation mean? Q. How did you see him? A. I've seen him first time, I've seen him inside John Morony. Q. What was he like? How do you say he was like? A. He's respected, like, you know, if he say something, you have to do it. Yeah, like, you have to do it, basically. That's how he's like.
I thought the answer was not responsive to the question in the sense that the witness advanced his perception of how others saw Witness A, which, considering the nature of the evidence led from him to this point and without guidance for counsel from a statement or proof of what the witness might say, I asked the jury to retire so that I might address my concerns. In the exchange that followed I suggested that counsel might lead evidence of facts upon which an inference might be drawn as to Witness A. The Crown opposed the evidence as opinion evidence for which there was no proper foundation. Thereafter the jury were released for the day.
In the absence of the jury, I brought to the Crown's attention s 65(8) and s 65(9) Evidence Act 1995 for consideration overnight and invited counsel to lead evidence on the voir dire to have the parameters of what might fall from the witness, considering that counsel had limited knowledge of what the witness might ultimately offer. Further vigorous exchanges followed, and at page 2132 line 23, after debate concerning the representation that within the correctional centre Witness A was respected, MANDO Q. What I want to ask you is, what did you see or hear that allowed you to give that view or that opinion? A. Witness A inside in John Morony, because he's very tight with Haytham, his word, if he say something, you follow. There is no joke over there. If you stop ‑ if you step on the wrong foot with them, you ‑ mate, it's not good then. It's really not good. Q. But what did you see ‑ did you see anything that gave you the reason to believe that? A. Yes. Q. What did you see? A. When Witness A came inside the prison, in John Morony, first he, like, say hello to The Doctor and they shaked hand and that. And then because I'm with The Doctor, so he said, "You guys, you will be okay," like, from this kind of talk, you know, between an inmates, so basically he did look after us inside. So he'd tell the boys, "Look, these people, they're all right," like, you know. So no‑one can fight us or step ‑ I don't know how to say it, but no‑one can step over us, basically. MANDO: Your Honour, I think that's sufficient to indicate -
The phrase "The Doctor" was reference to the accused.
After further exchanges as to whether this was no more than opinion or hypothesis, at page 2133 from line 1, Q. When you say he stated to you these things, is it Witness A that you're referring ‑ who are you referring to? A. Of course. Witness A. Q. Witness A. A. Which is ..(not transcribable).. uncle. Q. What did Witness A state to you in particular? A. He ‑ through him ‑ he, like, because‑‑ HIS HONOUR Q. Sorry, what was that? A. It was through ‑ because I was a friend of The Doctor inside. So Witness A inside the gaol, because he knows The Doctor and‑‑ HIS HONOUR: The question is, what did he hear, what did he see, not what he felt or who through or through whom he heard things. MANDO Q. I'm referring you to simply repeat what Witness A stated to you directly? A. Witness A said, like, to me directly, "You'll be all right here. Don't worry." Q. Who was with you when he said this to you? Was anyone else around? A. We was ‑ everybody was there, you know. Q. Who's there? Who's everybody? A. Like, the whole ‑ the whole pod. The whole pod, we ‑ you know. Q. Who was within‑‑ A. And plus I've got The Doctor as well. Q. He was present when Witness A said this to you? A. Yeah. He said it to him and to me. Q. What did you make of that? A. I was safe. What do you mean, what did I make of that? I was ‑ I was, like, safe, you know, someone to look after you inside, which is very good.
Counsel urged the presentation of this evidence to the jury and in response the Crown objected upon the basis that it as opinion evidence and not admissible. The Crown noted at page 2134 line 12 the contrast between this evidence and content of the proof prepared for the application to exclude the Crown case made at the commencement of the trial: CROWN PROSECUTOR: It's not admissible, your Honour. And it doesn't matter. It's his friend. And if we look at his statement, his statement is completely contrary to it. The accused is telling him, supposedly, about the threats made by Witness A, and the statement is in terms that he doesn't know who Witness A is.
I intervened to have the witness desist when he sought to engage the Crown directly as she was making submissions. The witness was asked to retire from the court and discussion followed. I announced my view that the evidence was of little probative value, and as introduced was misleading. In further discussion counsel argued that the evidence was relevant to Witness A, his character, and his ability to provide protection, and was therefore crucial. I pressed for the basis upon which one might come to that conclusion upon this evidence. At page 2135 line 30, HIS HONOUR: No. If it gets to the jury. He said, "You'll be okay." That could, in the context of being in gaol, nervousness, whatever other reason, it could be quite an innocuous statement. MANDO: And he understood from that, that he'll be protected and that's what his evidence was on the voir dire. HIS HONOUR: On what basis does he reach that conclusion? MANDO: It's his state of mind, your Honour. It's what he believed after having said that to him in the circumstances. HIS HONOUR: No, no, on what basis, upon what factual matrix does he conclude that the words "You'll be okay" is a promise that he will have adequate protection in gaol from the depravities of others who might want to cause him harm. That's the essence of what you're trying to establish. How does the evidence, as it is in its present form, get to that point? MANDO: Your Honour, it's a prison environment. He said that, "Yeah, this means that people won't fight us and things like that." That's what he meant ‑ that's what he understood. HIS HONOUR: That's the extent of the evidence you're going to lead on the point? MANDO: On the voir dire. HIS HONOUR: No. I want you‑‑ MANDO: On the point? HIS HONOUR: On the point that you're trying to establish. MANDO: To me that's sufficient. To me that's ‑ I'd be happy to just lead that evidence. I can't guarantee verbatim what's he going to say in response to my question before the jury, but that ‑ if the evidence comes out in substance as what he just said, that's sufficient. HIS HONOUR: That's of such limited probative value‑‑
Submissions continued at page 2136 line 33, MANDO: Witness A saying that statement to Mr Jeezai as well as to Mr Sun in a prison environment, saying, "You'll be all right," and him understanding that as he'll be protected, that goes to the character, the influence, the identity of Witness A. HIS HONOUR: How do you get from he'll be all right to him being protected? Where are the links to get you to that point? MANDO: Your Honour, he just said it. He said, "People won't fight us. People won't step on us." Things like that. HIS HONOUR: What basis does he come to that view? MANDO: He's an inmate. He was an inmate. He was in prison. He saw that there's issues, things like that, things arise. HIS HONOUR: What threats or danger did he experience from the fact that he was in gaol? MANDO: The evidence is significant and probative, independent of whether he needed that offer. But he probably ‑ maybe he didn't need it, but that was said to him by Witness A. It just goes to show who Witness A is. HIS HONOUR: Unless you can do better than you've done, that's not going to the jury.
The Crown noted from custodial records at page 2137, line 11 that of this group the accused was the first at the correctional centre, arriving there on 10 December 2016, followed by Haidar Al Jeezai on 29 April 2017, a little more than four and a half months after the accused, followed by Witness A slightly less than one month after on 26 May 2017, where he remained for about six weeks before transfer to Bathurst. The Crown submitted that the image sought in respect of Witness A by way of this witness in those circumstances was untenable.
The Crown submitted that it was an outrageous to suggest that Witness A coming to the establishment so late in the sequence was looked upon as a means of protection considering the information available from the custodial records.
Debate continued. I put my view at page 2137 line 30 and further exchanges followed, HIS HONOUR: That evidence I'm not going to allow at this stage, Mr Mando. Do you have any other evidence in addition to what's contained in the statement that you want to adduce? MANDO: Your Honour, I just want to get this clear. Is your Honour suggesting that any evidence as to what Witness A has stated or may have stated to this witness is not going to be allowed? HIS HONOUR: The evidence that's been adduced is not going to be allowed. MANDO: What if there's evidence that Witness A said certain things to this witness? Is that evidence not going to be allowed? HIS HONOUR: Where is the evidence, though? MANDO: From the witness. HIS HONOUR: When? Where? MANDO: He just said it on the voir dire.
The evidence to which counsel referred was limited to representations that: 1. When he came to the gaol Witness A shook hands with the accused and said, "You guys, you will be okay," and "he'd tell the boys, 'Look, these people, they're all right,'": Transcript page 2132 from line 25. 2. Witness A said to Haidar Al Jeezai directly, "You'll be alright here. Don't worry." Transcript page 2133 line 24. 3. Witness A said to both the accused and Haidar Al Jeezai: Transcript page 2133 line 35.
I repeated the view that the evidence did not go far enough: Transcript page 2138 line 1 but counsel continued to argue against the propositions I offered that counsel sought to advance conclusions upon which there was insufficient foundation, that the evidence was of limited probative value for the asserted characteristics of Witness A, and it should not be led before the jury. Counsel disagreed and pressed for the admission of the evidence. At transcript page 2138 line 33 I asked if counsel wanted the witness to return to answer further questions that might provide evidence to connect the words attributed to Witness A to the context he sought to develop before the jury but saw that as a futile exercise. After my comment upon the presentation of the witness counsel acknowledged that he could not control what the witness said. The exchange continued at page 2139 line18, HIS HONOUR: Mr Mando, listen to me. The evidence you want to adduce is part of a factual matrix that might ultimately, if you can establish the other elements of it, lead to the conclusion that you want to advance to the jury, but it doesn't go so far at the present time. Do you want the opportunity to have him in the witness box to ask him questions about the scope of his knowledge, the source of his knowledge, and his experiences that led him to the view that Witness A was capable of providing him the protection that he has opined was available to him? MANDO: Your Honour, I do wish to explore these matters, but my position is that this should be done before the jury, and I don't see‑‑ HIS HONOUR: So, you will conference him in front of the jury. MANDO: No, your Honour. HIS HONOUR: Well, what are you going to do? MANDO: There's a basis for his knowledge when he states, "Okay, I'll be protected". HIS HONOUR: Well, put him in the witness box now, and we'll get it from him so we know what it's going to be, and then I can rule upon whether or not the representations that you want to rely upon are not going to fall because of s 135 of the Evidence Act. MANDO: Yes, your Honour.
Upon his return the witness gave evidence of the names by which he is known. The evidence then continued at Transcript page 2141 line 10. I extract part of the evidence, MANDO Q. Just moments ago, before you went out, on the voir dire, so in this process now, you referred to Witness A stating to you and to Mr Sun, "You'll be all right". A. Of course, yeah. Q. I asked you what did you make of that, and you gave evidence to the effect, "I felt I'll be protected"? A. Yeah. Q. "People won't fight us. No one will step on us", or words to that effect. A. Of course. Q. I want to ask you what did you see or hear that made you believe that Witness A can provide you with protection? A. What did I see and I hear? Q. Or hear. HIS HONOUR Q. Take it one step at a time. What did you see? A. Look, when Witness A came into gaol, everybody knows him. Okay. Hassan know him, Micklo know him, Diab know him. All the big boys, they know who's Witness A is, and he's part of them. Okay. He's, like ‑ he's well knowing inside. Q. That's a conclusion, Mr Haidar. How do you know that? A. Because Witness A, if he say something inside, it will happen. He's‑‑ Q. For example? When he said something inside and something would happen? A. Like if I say something bad to him and he‑‑ Q. Let's take it one step at a time. You said, "If he say something inside, something will happen". What do you mean by that? A. Okay. If I said something bad to him or I didn't follow what he say, for example, okay, one of ‑ he will send one of the inmate to bash me, basically. Q. Did that happen? A. What do you mean did that happen? That happened many time. Not with me. It's not with me. Q. To you? A. No, not with me. No, it never happened, because he gave me protection. Q. Did it happen to someone else? A. Well, it happened to someone else. In gaol a lot of things happen. Q. Did you see it happen to someone else? A. I didn't see someone got bashed, like, I mean, didn't see someone got bashed because Witness A accused him to go and bash him. No, I did not see that, but, Witness A, if he say something, it ‑ because I'm there. MANDO Q. The question was did you see or hear. Did you hear anything that made you believe that you'll be protected? A. Because he said so, "Boys, don't worry", and because he knows The Doctor, as well. So this is how I get to know him. HIS HONOUR: You're adding information the question didn't call for. Listen to the question and answer the question so we can get through this a bit more quickly. MANDO Q. When he said that to you, "You'll be all right"? A. Yeah. Q. If someone says that to you ‑ it's not someone. It's him. He said that to you. What made you believe that you'll be protected when he said that to you? When he, in particular, said that to you? A. Why did I believe him? Q. Did you hear anything that allowed you to believe that you'll be protected? A. Yeah, Micklo. Q. What did he say? A. Micklo, you know, he was telling me about Witness A. Q. What did he say? A. Micklo was telling me about Witness A, like, he's ‑ like, he was telling me how is ‑ he's like ‑ his word, you follow and it's good and he cannot ‑ be on his side, it's better. Like ‑ things like this, you know, and people call him uncle, as well, because of his age. Q. Are you saying that Micklo told you that Witness A, his word is followed? A. Of course, and I can see that, as well. Q. What did you make of that when his word is followed, that phrase‑‑ A. His word is followed, like, that mean‑‑ Q. What does that mean to you? A. Like, if he say something to you, you don't do it, you'll cop it. Very, very simple. I put it this way for you. HIS HONOUR Q. How do we know this? A. Well, I was in custody, your Honour, so I know that. Q. But from what? A. Your Honour, because I was in custody there long enough and I seen ‑ a lot of things I seen, and the way they act and the way ‑ how they talk and‑‑ Q. We're talking about Witness A. A. Yes, correct. Q. What have you seen with him that would lead you to make these statements? A. Like one time ‑ a very ‑ I'll give you a small example, you know. We was playing ping pong right in the middle of the pot out the‑‑ Q. Who was playing? A. I was playing ping pong. Q. With? A. I was playing ping pong with someone else from, like, the pot. Witness A came inside, you know, and we was playing. He just grabbed the racquet, you know, took it without any question asked. That guy walked away. That's how people scared inside, you know. The weak person ‑ the strong person can eat the weak person inside. Q. What did he take? The racquet? You said he took something. What was it that he took? A. The‑‑ CROWN PROSECUTOR: The ping pong racquet. WITNESS: Ping pong racquet. HIS HONOUR Q. The bat? A. Yeah. The bat, sorry. The bat. I'm very sorry, and, please, like, my English, you know. MANDO Q. Specifically going back to what Micklo said to you about Witness A, what exactly did Micklo say to you about Witness A, and precisely? If you can remember the words as precisely as possible, do so. A. Look, we're going around here, like, to be honest ‑ like, what do you mean? Q. What did Micklo say to you about‑‑ A. This is back in 2017. Are you telling me do you want me to remember, for example‑‑ Q. Yes. A. ‑‑everything there, like ‑ but what I can remember I say to you. Witness A or Hassan over there, they are respected people. By means respected people, you cannot cross‑‑ HIS HONOUR Q. Who said that? A. I saw that and the boys and‑‑ Q. You were asked about what Micklo said to you. A. And Micklo said that to me and Diab say that to me. A lot of people. MANDO Q. Are you saying that Micklo said to you‑‑ A. Correct. Q. ‑‑Witness A was a respected person there? A. Correct. Correct. Q. Can you remember the precise words used? A. Like, respected person and the term, like ‑if you want ‑ if you want anything, you can ask him. Like, this is what is ‑ because, look, Witness A, he got tobacco inside. He can‑‑ Q. What? A. Tobacco. Q. Tobacco? A. Tobacco. And a pupe and ice. Q. What was the first one you referred to? A. They call ‑ something called pupe. Q. Cube? A. Pupe? I don't know what's pupe, but they call it pupe, the drug. Q. It's a drug. Okay. A. And ice. HIS HONOUR Q. You mean bupe? A. Bupe. Sorry. Bupe. Yeah. And ice. This is inside. All right. So you just imagine people inside, they've got the‑‑ Q. We don't want to imagine. We want to know what you saw, heard. That's what we're looking‑‑ A. This is what I saw. He's ‑ he's ‑ this is ‑ sorry ‑ this is what I saw. He give ‑ he give ice to everybody inside. Not to everybody. Only to the specific people he know. And do not ask me mention names, please. Don't. MANDO Q. Just going back to what Micklo said to you, okay? A. Yeah. Q. Can you remember or can't you remember what was said exactly to you by Micklo about Witness A? Yes or no? A. Yeah. I can ‑ no problem. Q. You can remember what he said to you? Yes or no? A. Look, Mr Mando, Micklo, the way he talk inside, I don't know if you seen Micklo. Micklo is a big guy, but the way what he said to me and he put Witness A to me as in picture, just don't fuck around with him, basically. Very simple. Q. What did Micklo say to you about Witness A? A. Don't fuck around with him. He take care of you. But don't fuck around with him. Q. Did he say anything to you ‑ now going back to your belief that you'll be protected when Witness A said to you, "You'll be all right," did Micklo say anything to you that gave rise to that belief when Witness A stated that to you? A. Can you repeat the question again? HIS HONOUR: It's confusing, Mr Mando. MANDO Q. So when Witness A said to you, "You'll be all right," you believed you'll be protected, right? A. Yeah. Q. That's what you've said earlier. A. Yeah. Q. Did Micklo say anything to you that contributed to that belief? A. I can't remember, to be honest. Q. You just remember that he said, "Don't fuck around with him"? A. Yeah. Q. He also said to you Witness A is respected? A. Respected mean‑‑ HIS HONOUR Q. Was that the word used? A. Yeah. Respected ‑ respected mean‑‑ Q. No, listen to me. A. Yeah. There is ‑ there's a term for it. Respected inside the gaol. MANDO Q. What's that? A. You can't basically ‑ cannot cross this person. HIS HONOUR Q. No, no. Is that ‑ what I need you to‑‑ A. Not respected as we respect‑‑ Q. Tell the Court ‑ no, no. I want you to say what you were told. A. Respected. MANDO Q. You were told Witness A is respected? A. Respected by the ‑ but respected, it's in a different term the way you understand it. That's what I want to make you‑‑ HIS HONOUR Q. That's a different question. All I need to know at the moment is‑‑ A. Respected is not a good person. Put it this way. I tell you. Q. Are you having trouble understanding when I'm speaking to you? A. Sorry. Q. What I need you to tell the Court is what was ‑ what you heard. You said he ‑ you heard him being described as respected. Is that what you heard? A. I put it ‑ I put it ‑ the word‑‑ Q. I don't want to know the meaning of the word is to you. I want you to tell me what the words ‑ the word that was used. Was the word used that he is respected? A. Well, no. I said respected, because this is my mentality, my understanding into the respected word. Q. So it was some other word that was used? A. It's ‑ yeah. Q. What was the word that was used? A. I can't remember the word exactly, but this is why I put it respected, because respected inside, they use it, you know, if ‑ if ‑ you cannot fuck around with this person, basically, yeah. Why he's respected, because he's got the drug inside, so he's make everybody happy, for example. MANDO Q. You just said the word "respected" wasn't used, but? The word "respected"‑‑ A. I used the word "respected". Q. You used it. I'm asking you to tell me, tell the Court, what word Micklo used to describe Witness A? A. Look, I ‑ I don't want to say, because I can't remember, so I don't want to say something it's ‑ I cannot remember what Micklo said, but he ‑ the way he mention it to me, don't ‑ don't fuck ‑ like, don't fuck around with him. This is‑‑ Q. You also mentioned Micklo telling you about Witness A, how his word is followed. Is that consistent with your recollection? A. Of course. HIS HONOUR Q. Is that what he said? MANDO Q. Is that what he said? Is that what Micklo said? A. Yeah. Q. His word is followed? A. You have to follow it. Yep. Of course. His word is followed. Q. His word is followed. You have to follow it? Are they the words? A. He say something to, yeah. Don't ‑ don't ‑ just don't say no. HIS HONOUR: It's all very nebulous and imprecise, Mr Mando. MANDO Q. Did you say in your evidence earlier, if he told you do something and you don't do it, something will happen? Is that something Micklo said to you? A. This is Micklo said that to me. Q. Micklo said that to you? A. Micklo said that to me. Q. What did he say? A. Micklo said to me ‑ he was ‑ Micklo was telling me about‑‑ HIS HONOUR Q. No, no. What did he say to you? A. Yeah, he was telling me, but he did not said it to me directly, "Look, you have to follow". No. Micklo was telling me how's ‑ like, the inmates ‑ because this is my first experience inside, you know, and he was telling me. He was telling me about Witness A. He was telling me about Haytham, you know. Q. But what did he say to you? A. With this ‑ with this, for example, boys, you know, but, like, from protection ‑ they ‑ they ‑ they get protection ‑ they give protection to the people because they get money out of it and‑‑ Q. This is what Micklo said to you. A. Correct. Q. And he said this about Witness A? A. He said that about Witness A, yeah, and ‑ and ‑ and‑‑ Q. How do you know he was‑‑ A. And Micklo‑‑ Q. Sorry, how did you know he was speaking about Witness A at that point? A. They friend. They are friend. Q. Because they're friends. A. Witness A and Micklo, they friend. MANDO Q. And I think you just said something when you were referring to Micklo describing Witness A and Haytham, is it the case that he said, "These people give protection to people, and they get money"? A. Of course. Q. Is that what you said? A. Yeah. Q. That's what Micklo said to you? A. It's ‑ indirectly he said it to me. HIS HONOUR Q. Indirectly. A. Indirectly said it to me. Q. What do you mean by indirectly? A. Like, you know, to be ‑ if you want to be look after ‑ look, he did not ‑ he ‑ he was talking ‑ we talking in general inside. We was talking in general. He did not point at ‑ I have to ‑ he said to me, "You must pay protection". No. Because I already got the protection, you know, when Witness A came inside. MANDO Q. Is it the case that Micklo said to you words to the effect of, "These people referring to Witness A and Haytham give protection to people, and they get money"? A. They get money out of it. Q. Yes, or no? A. Yes. Q. Now, also, I referred you to something else. Micklo describing Witness A, "If he tell you do something, and you don't do it, what will happen?" Is that something will happen? A. He‑‑ HIS HONOUR: So, what's your question? Don't answer that. MANDO Q. Moments ago, you were describing how Micklo was describing Witness A to you, and he said about Witness A, "If he", referring to Witness A, "tell you do something and you don't do it" ‑ I think it was you'll be in trouble or something like that. A. He just‑‑ Q. What? A. Like, don't fuck around with ‑ like, I'm‑‑ Q. What will happen if you don't do what he says? A. What will happen when the ‑ if you don't follow inside? Q. Yes. A. What he said to me, you get whacked, you know. HIS HONOUR Q. Who said that? A. You get whacked. This is Micklo. MANDO Q. Okay. So, Micklo is telling you‑‑ A. Yeah. Q. ‑‑about Witness A that if he, Witness A tells you to do something, and you don't do it, you get whacked. A. Yeah, yeah, yeah. Q. Okay. All right. Is there anything else that Micklo said to you about Witness A? A. So far ‑ this is inside, but ‑ because ‑ and then ‑ because I already got the protection from them. So, yeah. Q. And are these statements coming from Micklo the reason why you felt protected when Witness A stated what he stated to you, "You'll be all right"? A. Witness A spoke to me in Arabic. Okay. Q. Answer my question. HIS HONOUR Q. No. He ‑ Witness A spoke to you in Arabic. What's the significance of that? A. Sorry. Q. You said Witness A spoke to you in Arabic. A. Witness A spoke to me in Arabic after ‑ when he came in and saw the doctor because I didn't know Witness A personally. He knows the doctor before me. I don't know him. MANDO Q. Listen to my question very carefully and answer it. … HIS HONOUR Q. What was the significance of him speaking to you in Arabic? A. Look, when the ‑ because ‑ because he knows the doctor, in Arabic, they translate it to English, like, "Because I'm with him, don't worry, I'll be okay in here". Q. Sorry. He ‑ Witness A spoke to you in Arabic. A. Yeah. Q. And he said what? A. Don't worry. You'll be ‑ like, to say this in English, "Don't worry, you'll be okay in here". Q. And you said it was in Arabic. What was the significance of it being spoken to you in Arabic? A. Like, do you want me to say it in Arabic? Q. No, I don't. You volunteered that he spoke to you in Arabic. Why was that important? A. Sometime ‑ because they know my English limited there. So, they do talk Arabic. Arab people, they talk to me in Arabic sometime. MANDO Q. So, he said in Arabic you'll be all right. A. Yeah, because of‑‑ Q. Because you'll be with me, or because like‑‑ … Q. What did he say? You'll be all right because of‑‑ A. It'd be ‑ he ‑ I'll be okay because he's there and because he knows the doctor. Q. Okay. I'm just going back to the question that you didn't answer. A. Yeah. Q. You felt protected when he said that to you. A. Of course, yeah. Q. Okay. Is it because Micklo had said these things to you about Witness A? A. No, Micklo‑‑ … Q. All right. You're saying that when Witness A said this to you, you felt protected. I'm asking a very simple question. Did you feel protected when Witness A said that to you because Micklo had said to you all these things about him that don't fuck around with him, his word is followed? A. Of course, yes, yes. Q. And when did ‑ firstly, when did Micklo say these things to you? A. That ‑ when Witness A came inside. But has this got to do anything with the ‑ what I'm here for? Q. Don't make comments. A. All right. … MANDO Q. When did Witness A say, "You'll be all right", to you? At what point? How long after Micklo said this? A. Witness A? Do you mean Witness A? … HIS HONOUR: No, the full phrase, don't add the gloss. "You'll be all right, because you're with me and The Doctor". MANDO Q. Is that it? A. Yeah, because he knows The Doctor, so this is why I'm with The Doctor, because I'm a friend of The Doctor. Q. He said that how long after Micklo had said what he said to you about him? A. Can you ‑ this I don't understand. HIS HONOUR Q. Was that what was said by Witness A, was that said before you had the conversation with Micklo or after the conversation with Micklo that you told us about? A. No, that was ‑ this was before I had that conversation with ‑ before Witness A, like, tell me, "You'll be all right". MANDO Q. Micklo said these things to you before Witness A said to you, "You'll be all right"? A. Yes, correct. Q. My question is how long after Micklo said these things to you about Witness A did Witness A say to you, "You'll be all right"? A. Like maybe second day. I can't remember that, to be honest. Yes, I think second day. Yeah. … MANDO Q. Do you mean the next day? A. Yes. Second day's the next day, yeah. Q. Because you had been told these things, that's why you felt protected? HIS HONOUR: I don't think you should be asking a question in that form. You are leading. MANDO: It's been answered previously, your Honour. HIS HONOUR: It doesn't matter. MANDO Q. Is there anything else that gave rise to your belief that you were protected when Witness A said, "You'll be all right", to you? A. Did anything‑‑ Q. Is there anything else that you saw or heard that contributed to your belief? A. Of course, because when Witness A came in I saw the way they welcome him, you know. Q. How was that? A. The way they welcome him, like ‑ you know, Witness A knows everybody, like, come on. Q. What did you see? A. Like, the way Hassan was talking to him, the ‑ I'm talking about the big people. The people inside that pot, you know. The well‑known people. Diab, Micklo, Hassan, all these boys, they know Micklo well ‑ I mean, they know, sorry, Witness A, so they hugged him, "How you been?" This and that, like, this kind of talk ‑ like, wording, you know. Like, now you telling me what they say, it's ‑ and when someone like this inside the gaol, these people, like, really, you have to be careful from.
At this point counsel engaged with the bench upon the quality of the evidence and the use to which it might be put; transcript page 2153 line 42. Thereafter counsel sought further responses which included, MANDO Q. Clarify. A. It's not with me and ‑ because I'm with The Doctor and he knows The Doctor and The Doctor knows Witness A. This is why, because I'm a friend of The Doctor, so he said, "You'll be all right. Don't worry". HIS HONOUR Q. That was Witness A saying that? "Because I'm a friend of The Doctor, you'll be okay"? A. Because‑‑ Q. No, is that what you're saying? A. No. Q. This is important. A. Please just give me time to explain to you, because I need to put it in the words so I make myself clear. Because I am a ‑ because The Doctor my friend and I hang out with The Doctor a lot, and The Doctor, he knows Witness A and Witness A knows The Doctor, so to me he said, "You'll be okay". This is what I'm trying to explain. MANDO Q. Do you want to say anything else about this? A. No, not really. MANDO: Your Honour, I think the basis for his belief at the time‑‑
The Crown cross examined on the voir dire but acrimony that evolved limited the value it might have had. Haidar Al Jeezai however ultimately acknowledged the period of his confinement at the John Morony Centre from 29 April 2017 to 30 June 2017. It was there that he first met the accused, about a week after with witness's arrival. He confirmed that he met Witness A in early June within two or three days of Witness A's arrival. There were up to 80 people in the pod where they were held.
Haidar Al Jeezai was admitted to bail on 30 June 2017. He said that he last spoke to the accused before the accused was admitted to bail, by telephone. The accused made the telephone call to him. He had no conversation with the accused thereafter. He was told by the accused's counsel not to speak with him.
The statement for the initial application, made on 6 February 2020, was made in the circumstances he described at transcript page 2166 line 26, CROWN PROSECUTOR Q. I'll get back to the statement. What were the circumstances of you making that statement? How did it come into existence? A. Make yourself clear enough for me so I can answer you. HIS HONOUR Q. The question's quite simple, Mr Haidar. How did you come to make that statement? What were the circumstances that led you to preparing or making that statement? A. Basically, based what I heard from The Doctor and what I ‑ the way I saw him and what I heard and, yeah, so this is the statement. CROWN PROSECUTOR Q. When did you hear these things? A. I heard what? That's what I'm making ‑ I tell you make yourself clear enough. Q. The statement was signed on 6 February 2020. Do you remember that? It's got a signature and a date. A. Yeah. Q. That statement, did you type it up? A. No. Q. Who typed it up? A. Young Jun. Q. Who? A. Young Jun. Q. Is that the brother of the accused? A. Mm. Q. How did that all occur? A. Because he's helping me to type it, because I cannot type. Q. He was typing; is that right? A. Mm. Q. What about the contents of the statement? A. What do you mean the‑‑ Q. Where did that information come from? A. What do you mean where's this information come from? Q. Where did that all come from, that information? … HIS HONOUR: Whatever the information is in the statement, where did it come from. …. CROWN PROSECUTOR … Q. Did you read it before you signed it? A. Yes. Q. Was the accused's brother just typing this up? A. No. Because he's helping me, because I take notes and I write in Arabic and to tell him, so he can just translate it basically in English. Q. Did you have notes before you ‑ before this statement was typed up? A. Mm‑hmm. Q. What are those notes? A. Well, there's a lot, you know. Q. Where are those notes? A. When I did the statement, I don't need them any more. Q. What, you threw them away? A. I don't need them. What are you trying to get? What do you want to ‑ what ‑ what are you referring to? HIS HONOUR Q. Mr Haidar? A. Yes, your Honour. Q. Do not argue. Answer the question so we can get through this a little quicker. A. Yes, your Honour. Q. Did you throw the notes away? A. I don't need them any more. Q. Well, the answer to that is "yes". A. Yes. I don't need them. Made a few notes, yes, plus‑‑ CROWN PROSECUTOR Q. The notes were notes you wrote in Arabic; is that right? A. Yeah. Q. What‑‑ A. There's a couple ‑ a few notes, a few ‑ a few note, I keep it, you know. And‑‑ … Q. Was it ‑ did your notes contain any of the information that's turned up in your statement, that's typed up in your statement? A. Like, some of it ‑ some of it I remember. Some of it, it's there, you know. Yeah. Q. What were those notes? Like, when did you write the notes? A. This is long time ago. Ma'am, you ask me question‑‑ Q. When? A. Really ‑ like, I've got notes since ‑ yeah, I think, yeah, 2018. Notes I've got. I've got every‑‑ Q. What, are you suggesting‑‑ A. I've got every note. Your Honour, I've got every‑‑ Q. What do you mean earlier notes? A. Mmm? Q. You've got‑‑ A. I'm the type of person I like sometimes to write things, you know, so I don't forget, because I forget. Q. Those notes that you don't have any more, what were they notes of? When did you make those notes? A. It's like, you know, just like they call it head points or I do and I remember. Q. When did you make those notes? A. Ma'am, it's a long time ago. It's in 2018 I make notes. Q. Why were you making notes in 2018? A. I think so. I told you so I don't forget. Q. Forget what? Why did you make those particular notes? A. What do you mean, particular notes? Why are you saying it's a particular note? What do you try to ‑ what do you try to ‑ why are you laughing as well? Why are you trying to refer it, particular, what do you mean, particular notes? Q. You referred to notes in Arabic‑‑ A. Yeah. Q. ‑‑that you had? A. Yeah. Q. And I'm asking you, the notes in Arabic that you had‑‑ A. Yeah. Q. ‑‑that you no longer have‑‑ A. Yeah. Q. What information did they contain? Was it information that has turned up in your typed statement? A. Some of it, yeah. Some of it, no. Q. I'm asking you about the Arabic notes, what information was in the Arabic notes? A. Sometimes, like, when The Doctor call me, you know, and he talked to me on the phone, like so I don't forget, I just write things, you know. Q. Back then? A. Yeah. Q. But you don't have those notes any more? A. What I'm going to do with them? … Q. The contents of this statement, right, you don't refer in your statement to the fact that you were at John Morony Correctional Centre, do you? A. What you mean? Read the statement. What's the statement? It's been a long time. Just fresh my memory. Q. You tell me. It's your statement. A. Just fresh my memory a little bit. … WITNESS: Look, if I don't answer ‑ if I don't answer you the question, you're going to hold it against me. .. CROWN PROSECUTOR: Your Honour, I'm not going to ask this witness anything further at this stage.
There was no re-examination. The hearing was adjourned to the following day for argument.

Submissions

The trial resumed on 30 April 2021 for submissions upon the material led from Haidar Al Jeezai.
The Crown maintained its opposition to his evidence regarding the murder at the John Morony Centre advancing the following arguments: 1. The evidence was not relevant to the trial; 2. The evidence from Haidar Al Jeezai was of conversation between the accused and the deceased alleging an argument between the deceased and Witness A, which, from the deceased, was before the court as second-hand hearsay evidence; 3. It was not permissible to use second hand hearsay evidence of a representation to prove the existence of the fact asserted in the representation; 4. S 62 Evidence Act 1995 applied; 5. S 65(8) Evidence Act 1995 applied; 6. The Crown acknowledged that the evidence if relevant could be adduced if it was evidence from the accused of what the deceased allegedly described to him; 7. The evidence was not relevant because it was not "logically" probative of a fact to be resolved by the jury; 8. The Crown read from Uniform Evidence Law by Odgers, 13th edition, at page 401, "Evidence of a previous representation by A that fact X occurred, where A had personal knowledge (as defined) of the fact, is first‑hand hearsay that X occurred. Evidence of a previous representation by A that B said X occurred (where B had personal knowledge of the fact), is second‑hand hearsay that X occurred." 1. The Crown referred to Vickers v R [2006] NSWCCA 60 reported at (2006) 160 A Crim R 195, specifically to paragraph [52], where Simpson J wrote, "52 There are, in fact, two previous representations and it is important to distinguish between them. One is the representation made by Mr Gould that he heard the appellant say that he had been provoked. That was an express oral representation made by Mr Gould to, and heard by, the police officer who took his statement; alternatively (or additionally), it was an express written representation made by Mr Gould and seen or perceived by the police officer who took, and witnessed, the statement. The other representation is the representation contained in the words attributed by Mr Gould to the appellant, that he had (in fact) been provoked. On the face of Mr Gould's statement, this was an express oral representation made by the appellant and heard by Mr Gould. This latter representation was relied upon by the Crown as an admission by the appellant - that is, a representation made by the appellant adverse to his interest in the outcome of the proceedings." 1. The Crown summarised her point thus, that the deceased inmate is alleged to have made representations to Haidar Al Jeezai, and that is second hand hearsay, and not admissible.
The accused's counsel submitted in terms that the jury should hear the evidence of the conversations alleged to have occurred proximate to the murder of which Tangi was convicted, between the deceased and Haidar al Jeezai said to have occurred on 19 June 2017. He conceded (I believe erroneously considering Haidar Al Jeezai's evidence) that this was second hand hearsay evidence but found support for his position in the judgement of Mason CJ in Walton v R [1989] HCA 9; 166 CLR 283. His Honour was said to have provided a minority judgement, which implied that his Honour was in dissent, however upon reviewing the decision his Honour was of the opinion that special leave ought to be granted and the appeal dismissed, agreeing with Wilson, Dawson and Toohey JJ. Counsel referred to the first portion of paragraph [23], where his Honour wrote, "The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay."
Counsel submitted that the circumstances surrounding the previous representation and the manner or the form of the representation were such that it was likely to be reliable, likely to not be a fabrication, and "… just a reference to what the dispute is about."
Debate followed upon the application of provisions in the Evidence Act, specifically s 65(2) resort to which was unnecessary considering the terms of s 65(8) and s 65(9) if the evidence was to be admitted.
Counsel pressed the significance of the time when it was alleged that the conversation occurred, the subject of the alleged dispute between Witness A and the man Tangi but disavowed the use of detail of the dispute. He spoke of the fact of the dispute and that the deceased was swearing.
My understanding of what counsel submitted is that he wanted to lead evidence from Haidar Al Jeezai describing what he was told by the deceased of the alleged dispute between Witness A and the deceased over tobacco and drugs, which included the deceased using swear words. He argued the significance of the representation offered coming from the deceased who was thus not available to give evidence. He argued that it was highly likely that the representation to Haidar Al Jeezai was not a fabrication, and that it could not be suggested that it was somehow staged or calculated to serve any particular forensic purpose in the mind of Haidar Al Jeezai. He submitted that considering the description was given in a frank and candid manner, without premeditation, that the rule against hearsay would not be applied rigidly and inflexibly and that s 60 Evidence Act would apply, given that the evidence of that previous representation is not sought to be tendered to prove what is being asserted by that previous representation, but that the representation was made at some stage.
In response to my question how that might have probative value counsel responded that this rested upon the fact that the representation was made, with reference to a dispute about tobacco and drugs, referring to Tangi and Witness A. Counsel reiterated that it was not offered for a hearsay purpose, but as direct evidence that the representation was made.
In response to my comment that evidence that this was said, offered through Haidar Al Jeezai drawing upon what he was told by the deceased still involve evidence of hearsay counsel agreed but said it was not offered for that purpose, but that it was evidence of association. Counsel continued, "Because there's already evidence that there's a group there, and Tangi and Witness A were in a group together. So, that evidence technically is not the evidence that's relied upon to prove that association. So, it's simply that that evidence sorry, that that statement was made, and then that's it. It's not really necessary to prove that association, but it just it would inevitably go to that, ultimately, I would agree, but it's not the evidence that is relied upon for that purpose. That's why I would submit s 60 applies, and there's another reference here to this case of R v Dover (2001) 18 ACrimR; NSWCCA at [34] per Dunford J. That case is authority for the proposition that some New South Wales Courts have taken a broad view of the provision s 65, subs (2), para (c) about the probability that the representation is reliable, this is by Zaydoun, and so some Courts have taken the broad view of that provision, perhaps failing to give sufficient weight to the burden on the party seeking to have the evidence admitted to point to circumstances that significantly increase the probability of reliability, rather than the absence of circumstances which indicate unreliability. Some Courts have taken that view, which, in effect, does not give sufficient weight, it is said here, to the burden on the parties seeking to rely on that evidence to point to circumstances, rather than the absence of circumstances which indicate unreliability. But I would submit that I have, in fact, pointed to circumstances that increase the probability of reliability. Given the simplicity of the previous representation to Haidar, who was an inmate in the prison at the time, the timing that it was made, the lack of an indication or the lack of, I would submit, possibility of a suggestion that it could have been a calculated piece of evidence, the reference to this previous representation. It was a dispute between the deceased and Witness A, and there was swearing involved between him and Witness A and Tangi, and it was about tobacco and drugs being traded in the prison."
The reference to the decision by Dunford J was either misheard, mistyped, or misspoken. The authority is R v Walter Gover [2000] NSWCCA 303 in which Dunford J wrote at paragraph [34], "[34] Section 65(2)(c) requires that the representations be made in circumstances that make it highly probable that they are reliable. The whole basis for the second voir dire was to exclude the evidence on the basis that the deceased, because of his alcoholism and other conditions, may not have been a credible witness, but her Honour rejected these submissions, and in my view, although not expressly referring to s 65, in light of her Honour's findings, no other conclusion could have been reached but that the conditions of s 65(2)(c) were satisfied."
In further discussion counsel acknowledged that he sought to adduce the evidence of what was said to prove that it was said, and not for hearsay purposes. I understood his position was that he did not want it as evidence as to the existence of the facts represented in the alleged conversation.
I referred to s 135 Evidence Act 1995 but there was no submission forthcoming in respect of that provision. I thereupon announced that I would exclude this evidence from the consideration of the jury, with my judgement to follow: Trial transcript p 2177 line 11.
The next portion of the evidence from Haidar Al Jeezai challenged by the Crown, alleged his observations of the greeting offered to Witness A in the gaol complex, which led him to the view that Witness A was respected. The Crown reminded me that at the trial transcript page 2125, immediately before the jury were asked to leave the court room, the witnesses said "He's respected, like, you know, if he say something, you have to do it and, like, you have to do it, basically. That's how he's like".
The Crown sought exclusion of this as evidence of opinion. I indicated I would not discharge the jury but would instruct them to disregard this evidence which I did in the course of summing up the trial to them.
In further submissions the Crown referred to the evidence led on the voir dire from Haidar Al Jeezai including, "This is, like, the main people knowing", Everybody called him Uncle. "You can't cross them. You've got to be polite to them. You can't upset them. They've got power".
The Crown submitted that all such evidence should be excluded as irrelevant, contrary to the opinion rule: s 76 Evidence Act 1995, and without evidence that could provide a basis for the lay opinion: s 78 Evidence Act 1995.
I observed that counsel had the opportunity to examine the witness further with regard to these propositions, I questioned the probative value of the evidence as offered, and raised consideration of s 135 Evidence Act 1995 once more.
The accused's counsel then presented the following submissions: Trial transcript page 2178 line 16, "Your Honour, the evidence is of central relevance. Firstly, what I propose to do is simply lead evidence from Mr Haidar about what he saw or heard in relation to these people who he's referred to as a group, which included Witness A. It's of central relevance, because Witness A is the duressor in the defence case. The evidence goes to Witness A's power, influence, identity. Who he is. It's of central relevance to the defence case. It cannot be excluded, because of its high probative value to the defence case. The prosecutor has to disprove duress. It's also relevant to the prosecution case."
I asked counsel to take me to the transcript where the evidence exhibited these characteristics. I observed that the fact sought to be shown might, if properly established, have significant relevance, and asked him to identify the evidence showing the asserted high probative value for which he was contending. I repeated that I was asking him to take me to the evidence that attracts the statements of quality he attributed to it.
Counsel referred by way of example to evidence from Haidar Al Jeezai the day before on the voir dire that the inmate "Micklo" said of Witness A, "Don't fuck with him. If he says do something, you've got to do it. If you don't do what they say, you get whacked".
Counsel asserted that this evidence from Haidar Al Jeezai was first hand hearsay, which as I understood the submission, was to prove the existence of the fact contained in the representation alleged of "Micklo". Counsel confirmed that "Micklo" was not to be called to give evidence.
I announced that I would not allow that evidence for the purpose proposed, and counsel sought to rely upon it for a non-hearsay purpose. In response to my question what probative value it had in that context, counsel replied that it had a lot of probative value as to Witness A and his identity, character, power, and influence.
I announced that I would not permit the evidence for the asserted non-hearsay purpose.
In response to the Crown tender of the judgement by Rothman J in R v Tangi (No 12) ibid counsel expressed his opposition to it as irrelevant, and hearsay. When the purpose was explained he withdrew his objection and it was marked as an exhibit for inclusion in the material relevant to the assessment of the value of the evidence offered regarding that event. After further exchanges, including a warning to Haidar Al Jeezai not to misbehave in the course of his evidence before the jury, I asked him to wait outside of the court room.

Consideration

Thus there were broadly two aspects of this evidence the Crown asked the court to reject, the first to do with the murder at the John Morony Centre, and secondly the evidence of Haidar Al Jeezai's opinion of Witness A.
I accept that assessment of Haidar Al Jeezai's credibility was a matter for the jury, though his presentation left much to be desired and the content of this evidence less than persuasive. It remained however that if the evidence was not susceptible to exclusion according to relevant principles, regardless of the view one might take of the credibility and reliability of the evidence, the accused was entitled to have it presented in his case if that was his wish.
The difficulty with the evidence regarding the murder in the gaol is it did not extend beyond descriptions by Haidar Al Jeezai of conversation, which was before the court as hearsay evidence, the description of it alleged to have come to him from the deceased. There was no evidence to suggest connection between what he was told by the deceased and the events that ultimately led to the conviction of Tangi of that murder.
The Crown submission was that the evidence was of purported conversation between the accused and the deceased about some conversation to do with an argument with Witness A. So described it was second hand hearsay. I quoted the evidence earlier in the judgement from page 2104 of the trial transcript and following with my emphases from the relevant passages. The following representations are gleaned from what Haidar Al Jeezai said, 1. He saw Witness A on the morning of 19 June 2017; 2. Witness A was hanging about with "Haytham" and walked with "Micklo"; 3. There was a verbal argument between Witness A and the deceased who was murdered later that day by Tangi; 4. He was not close to the argument, but when the deceased came inside he was talking to his friend about Witness A and swearing toward Tangi; 5. He next said the deceased was swearing toward Witness A and Tangi; 6. He was told of these things by the deceased, and saw his angry reaction; 7. He could not remember seeing any exchange between Witness A and whoever else; 8. He did not hear anything said by Witness A; 9. The deceased told him of his argument with Witness A over tobacco and drugs.
I was not persuaded that the evidence was probative of the fact for which its tender was sought, namely, that Witness A was a person of influence in the gaol setting, who commanded respect, with perhaps some connection with what befell the deceased. The evidence was confusing and as given was misleading. I was satisfied that it was unfair to the Crown to allow it before the jury: s 135 Evidence Act 1995.
As evidence of the existence of an asserted fact, namely an argument between the deceased and Witness A over tobacco and drugs, Haidar Al Jeezai could do no more than assert that he was told of such by the deceased. Therefore, the evidence of the previous representations, said by Haidar Al Jeezai to have been uttered to him by the deceased, was hearsay evidence caught by s 59 Evidence Act 1995. I do not agree with the Crown submission that this was second hand hearsay. Upon the death of the person who uttered the representation said to have been heard by this witness s 65 Evidence Act 1995 was enlivened, including s 65(8), subject to the notice requirements of s 67 of the Act. Considering the nature of the evidence led on the voir dire regarding this, including the confusion inherent in it and the absence of any basis upon which it might be said to be connected with the murder, I was not persuaded that it was appropriate to direct that s 65(8) should apply, in the absence of notice in writing to the Crown of the accused's intention to adduce the evidence: s 67(1) & s 67(4) Evidence Act 1995.
For these reasons I rejected the accused's application to adduce this evidence before the jury.
As to the evidence of lay opinion sought from Haidar Al Jeezai, at the highest it was that for the reasons given Haidar Al Jeezai formed the view that Witness A was respected by other inmates and had influence through which he could provide protection in the custodial environment.
I was not persuaded that the lay opinion sought was available from the evidence of what Haidar Al Jeezai said he saw and heard of Witness A. It could support no more than that Witness A went about with a measure of confidence.

Decision

As announced, for the reasons given I refused the accused's application to lead evidence of the murder at John Morony Centre on 19 July 2017, and I refused the application to lead evidence of the opinion asserted by Haidar Al Jeezai of Witness A.

Endnote

R v Tangi (No 12) [2020] NSWSC 547. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2024

R v Sun

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