HIS HONOUR: The accused is on trial for the murder of Mahmoud Hamzy and the infliction of grievous bodily harm upon Omar Ajaj with the intent to inflict grievous bodily harm upon him. There are also charges of manslaughter, as an alternative to the murder count, and of participation in a criminal group.
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Crown Case
The Crown case is that shortly after midnight on 29 October 2013, the accused and two other men, all of them armed, entered the garage at a residence at 28 Bardo Circuit, Revesby Heights with the intention of killing Mohammed "Hamoudie" Hamzy. At the time Mr Hamzy was in the garage with Mahmoud Hamzy and Mr Ajaj, who were his cousins, and his brother-in-law, Mehmet Yarar. The accused and his two companions fired their weapons. The intended victim, Mohammad Hamzy, and Mr Yarar escaped from the garage but Mahmoud Hamzy was fatally wounded. On the Crown case, the shooters may have mistaken Mahmoud for the intended victim, who was not personally known to them. Mr Ajaj was also wounded but survived.
The two men accompanying the accused are alleged to have been Jamal Quami and another man who has become a Crown witness, referred to as witness "L". It is the Crown case that the three of them travelled to the address at Revesby Heights in a car driven by another person who has become a Crown witness, referred to as witness "M". After the shootings they were driven from the scene in that car by witness "M". The three men were dressed in dark clothing and wearing balaclavas to conceal their identity. They are said to have been members of the "Brothers for Life" gang at the time, as was the intended victim, Mohammad Hamzy. The incident appears to have occurred in the context of internecine rivalry between the accused and Mohammed Hamzy, and after the accused had heard that Mohammad Hamzy was out to kill him.
The accused had previously been tried for these offences before Hamill J, in a joint trial with other persons who faced further charges. The jury was unable to agree upon verdicts in relation to the accused, and he stands alone before me for re-trial.
I received on the voir dire the Crown Case Statement and other material, from which the following emerges. On the day after the shooting, at hospital, the surviving victim, Mr Ajaj, told police that he was sitting in the garage with his companions when a car arrived outside. He saw a passenger in the back jump out and start shooting. Two more people also got out of the car and were shooting. He saw Mahmoud Hamzy being shot in the head and falling to the floor straight away. He also saw one of the men shoot Mahmoud in the head again where he was lying on the ground. He himself was shot in the leg. He was "playing dead" and the men left. As he heard the car drive off, he lifted his head and the "guy in the back seat" saw that he wasn't dead and "started shooting" at him. The evidence of witness "L" is that the accused occupied the rear seat both before and after the shooting.
Mr Ajaj's statement that the car pulled up outside the garage and the assailants emerged from it is inconsistent with CCTV footage obtained from a camera at 46 Bardo Circuit, some distance from Mr Hamzy's home. This discloses that the relevant car stopped outside No. 46 and three people, dressed in dark clothing and wearing balaclavas, got out of it. They started walking in the direction of No. 28, the Hamzy residence, followed by the car, which was being driven with its lights off.
In evidence at the previous trial, Mr Ajaj resiled from the account he had given to the police in this respect. The effect of that evidence was that the first thing he saw was a man with a balaclava and a gun shooting. He saw that Mahmoud had been shot in the head, he got up and another two shooters ran in, firing their weapons. He said that the car arrived while the shooters were in the garage. He maintained his account of being shot in the leg and of playing dead. He said that he realised the assailants had left when he heard the car door slam. He got up to look and "someone in the back seat" had "shot me again and had got me in the stomach on the side." In his statement to police Mr Ajaj had not described having been shot in the stomach.
Another witness who had been a member of Brothers for Life at the time, referred to as witness "J", gave evidence at the previous trial that the accused later told him that he "shot a bullet out the car window or something like that..."
It is the Crown case that Mr Quami was armed with a .38 calibre pistol with a particular serial number, and the accused had a .38 calibre pistol of a different model with its own serial number. Witness "L" used a .45 pistol, but the weapon has not been recovered and its make and model are unknown. At the previous trial witness "L", Quami and the accused were referred to as the first, second and third shooters respectively. As I understand it, this was done for convenience and does not indicate any order in which events occurred on the night in question.
On post-mortem examination, Mahmoud Hamzy was found to have suffered a number of gunshot wounds, including three to the head. Fired bullets were recovered from two of these wounds, which could be matched ballistically to the pistol used by Quami. The third wound had entry and exit points but no bullet was found, conveying that it had passed through the head. There were a number of other wounds to Mr Hamzy's body, from some of which were recovered from .45 calibre bullets, the calibre of the pistol used by witness "L".
During surgery on Mr Ajaj, two spent bullets were removed from wounds to his right thigh and right leg, one of which was able to be identified as .45 calibre. There was a wound to his abdomen but no bullet was recovered from it.
At the garage, police observed several fired bullets and fired cartridge cases. Significantly for present purposes, four bullets which were found were linked ballistically to the pistol said to have been used by the accused. One was found near the door exiting the garage. The others were in locations consistent with having been fired towards an area where people in the garage had been seated. Two were located in a wall, and another underneath a black hooded jumper on a blood stained area said to be consistent with the position on the ground where Mahmoud Hamzy fell after being shot. The Crown invites an inference to be drawn that that was the bullet which passed through Mr Hamzy's head.
The accused's position, as it was at the previous trial, is that he was not one of the three shooters and was not present in the vicinity when the shooting occurred.
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Telephone Intercepts
The accused has remained in custody since his arrest on 27 October 2014. Recently a number of telephone conversations to which he was a party were recorded by police pursuant to a warrant. The Crown prosecutor was of the view that various parts of these conversations are relevant to the matter at hand. In particular, the Crown sought to rely upon passages during conversations on 24 August and 7 September 2017. Counsel for the accused, Mr Driels, objected to this evidence. I rejected the evidence, and these are my reasons for that decision.
The conversation of 24 August was between the accused and his brother, Faisal Zarshoy. Relevant for present purposes are two parts of that conversation which, the Crown contends, are related. In the transcript of the conversation the accused appears as "MZ" and his brother as "FZ". The accused appears to be speaking of communications with his solicitor, Wasim Jabakhangi, about offering the Crown a plea to "GBH with intent", the accused expressing a preference to offer them up "something low", presumably meaning a lesser offence. As I understand it, this plea was to be offered in satisfaction of the murder charge. The accused adds:
"MZ: I'm going to call him up and say listen, I had a dream please, Wassim (sic) as my lawyer I am directing you to offer them this deal. If they're not happy with it offer them something else. If they're not happy with that we're we going offer them something else if they're not happy with that we're going to take it to trial. But Cuz GBH with intent I recon (sic) they'll accept it after that I recon hey?"
The conversation continues, with Faisal suggesting what the sentencing outcome might be if the accused were convicted of "GBH with intent" compared to "25 to life" (presumably what he saw as the possible outcome if the accused were convicted of murder).
A little later in the conversation the accused speaks about the ballistic evidence. In this context he mentions "L", and "Ron", who is Mr Driels. The passage is as follows:
"MZ: But cuz going on the evidence bro I can't get found guilty on murder … cuz it's just cuz like Number one, the ballistic for the firearm…they don't know what gun is what gun and and they reckon the gun… from the first shooter is not the gun from the third shooter, you get it? So they can't even make out … they can't even make out which bullet hit here… I swear to God eh. Cuz… they … they can't even make out um which one is [L's] bullet and which one … you know you think cuz you know gun…gun…analysis… firearm analysis… they're fuckin' spot on bro. But This is from Allah… I don't know bro if this is from Allah … the bullet went straight through the dead person. Do you get it?
FZ: It went straight through what?
MZ: The bullet went straight through Mahmoud Hamzy.
FZ: No way.
MZ: You know in the last trial, they were trying to say that the bullet that killed Mohmoud (sic) … that the first bullet was from the third gun and Ron was like nah and we had a legal argument.
FZ: Who's they alleging had the first gun?
MZ: Now listen there's three guns, they think the first ones (sic) Jamil, second ones [L] and they're trying to say allegedly the third ones mine. They're trying to say the third 38 was the first one to hit Mohammad but that's bullshit bro. Of course they're going to say anything just to bring me down you know what I mean?
FZ: 100%, 100%"
The Crown prosecutor submitted that, viewed in combination, the accused's expressed willingness to offer a "deal" to the Crown and his comments about the ballistics evidence amount to an admission that he was the third shooter. The Crown prosecutor said that in the second of the quoted passages he appears to be expressing the view that he could not be found guilty of the murder of Mahmoud Hamzy because no bullet found in Mr Hamzy's body could be linked ballistically to the weapon wielded by the third shooter. Further, the Crown prosecutor argued, he appears to be conveying that it was fortunate for him that a bullet which could be linked to that weapon passed "straight through" Mr Hamzy, and wondering whether this good fortune might be attributable to divine providence. Generally, the Crown prosecutor noted that at no stage in the conversation does the accused assert that he was not present at the time of the shooting, and argued that his expressed interest in the ballistics evidence was because he had been one of the shooters.
In the phone call of 7 September the accused was speaking to a person whose identity is unknown. He is referred to in the transcript as "UM", meaning "unknown male". That person refers to himself as "one of LC's boys". It is common ground that "LC" is a reference to "Little Crazy", a nickname used for Mohammed Hamzy, the intended victim of the shooting. This man tells the accused that LC had received a message that the accused intended to plead guilty. The accused denies this on several occasions during the conversation. He also says that the Crown had offered him "manslaughter and GBH with intent" but that he had knocked it back, adding that he would not plead guilty to something he hadn't done.
In the passage upon which the Crown relies, the accused discloses that he had met "Wally", the brother of Mr Ajaj, at Parklea Prison and had asked him to speak to Mr Ajaj on his behalf in the light of the evidence Mr Ajaj had given at the previous trial. The passage is as follows:
MZ: "Yeah that's right that's right but I've got trial on Monday and umm I spoke to … I saw Wally at Parklea he goes to me how you doin' brother you Nassar yeah? He goes, I go to him I go listen can you talk to your brother for me. He goes what do you want me to say? Look at the end of the day like … we… we all Muslim you know what I mean? And Omar the last court case like straight out why did he like pretty fucked up straight out."
UM: "What did he do?"
MZ: …like he came he didn't mention no names and that but just like … he doesn't need to say what he say you know what I mean? It just looks (ugly?) and (no one) knows the situation. (Hala?)
"Nassar" is a name used for the accused.
The Crown prosecutor again noted the accused's case that he was not present at the time of the shooting and questioned why, if that were so, he would be concerned about the evidence of Mr Ajaj, who was unable to identify any of the shooters. The Crown prosecutor referred to Mr Ajaj's departure from his police statement in his evidence at the previous trial when he said that, as the three shooters were leaving in the car, the man in the back seat not only fired his gun in his direction but actually shot him the stomach. He argued that it would be open to the jury to infer from the quoted passage that it was this which was troubling the accused and which led him to ask Wally to approach Mr Ajaj to change his evidence. The fact that he sought to influence the witness in this way, it was said, was because he was indeed the third shooter.
As I have said, it is the quoted passage related to Mr Ajaj's evidence upon which the Crown relies. However, the Crown accepts that if any part of this conversation is to be admitted into evidence, the accused's protestations of his innocence and declarations that he would not accept a deal offered by the Crown should also be in evidence in fairness to the accused. The Crown prosecutor noted, however, that it is unlikely that the accused would have acknowledged contemplating pleading guilty to anything in this conversation, given that he was speaking to an associate of the intended victim of the shootings.
The Crown prosecutor argued that the telephone intercept evidence is significant because of the support it lends to the Crown case, which is otherwise dependent in large part upon the evidence of witnesses who, in different ways, had been themselves involved in the criminal enterprise.
As to the first conversation, Mr Driels agreed that the two passages quoted above should be viewed in combination, but he submitted that they do not convey an admission by the accused of involvement in the shooting. Rather, he argued, they should be seen as a discussion by the accused with his brother about the strength of the Crown case in the context of a possible negotiation with the Crown to reduce the charge of murder to a lesser charge in exchange for a plea of guilty. The second passage amounts to the accused's assessment of the strength of the case against him on murder through an analysis of the ballistics evidence. (Of course, it is not to the point for present purposes that his understanding that he could not be found guilty of murder because no bullet attributable to the gun said to have been used by him was found in the deceased's body is wrong in law.)
Mr Driels pointed out that the accused would have been well aware of the ballistics evidence because he had been provided with a copy of the police brief at an early stage of the proceedings and, of course, he had heard the evidence given at the first trial. Mr Driels argued that the accused may well be interested in negotiating with the Crown even if he were innocent, given that he has been in custody since October 2014 and has been subjected to a lengthy trial at the end of which the jury could not agree upon a verdict in respect of him. Mr Driels added that, if it were found that the evidence of the first conversation could be interpreted as an admission of guilt, it would be necessary to put forward that explanation and this would mean revealing the whole of that procedural history. Mr Driels argued that this would cause the accused unfair prejudice outweighing the probative value of the evidence: s 137 of the Evidence Act, 1995. Alternatively, he argued that for the same reason it would be unfair to the accused to admit the evidence: s 90 of the Act.
As to the second conversation, Mr Driels recounted that at the first trial, when he was cross-examining Mr Ajaj about the fact that he had not told police that he had been shot in the stomach by one of the assailants as the car drove away from the scene, Mr Ajaj had lifted his shirt to show that he had indeed been shot in that area. This somewhat dramatic gesture, Mr Driels argued, could have been what the accused was referring to in the conversation when he said, "Omar the last court case like straight out why did he like pretty fucked up straight out", and when he was asked by the unknown male to explain this, said that Mr Ajaj "doesn't need to say what he say … it just looks (ugly?) …". Mr Driels argued that if it were found that this evidence could be interpreted as an admission, it also should be rejected pursuant to s 137 or s 90.
I have not found this matter easy to resolve but, having carefully considered the evidence, I accept Mr Driels' primary submission that the first conversation could not fairly be interpreted as an admission of guilt and is properly seen as the accused's assessment of the strength of the Crown case against him. This is supported by the fact that when he discusses the ballistics evidence, the accused does not at any stage describe any gun as having been wielded by himself. He speaks of "the third gun". Indeed, towards the end of that passage he says that "they think the first ones Jamil, second ones [L] and they're trying to say allegedly the third ones mine". It is not inconsistent with this stance that he tentatively attributes to divine intervention the fact that a bullet linked to the third gun went "straight through" the victim.
Even if this conversation could been seen as open to interpretation as an admission, there is force in Mr Driels' submission that its probative value is outweighed by the danger of unfair prejudice to the accused. In my view, the clearly available competing inference that the accused was doing no more than discussing the strength of the Crown case against him would be relevant to an assessment of the probative value of the evidence. A helpful examination of Court of Criminal Appeal authority on whether regard can be had to competing inferences in assessing the probative value of evidence is to be found in Odgers, Uniform Evidence Law (12th Edition) at [EA.137.90] pp. 1187-1189. The learned author suggests that the issue may require re-examination in the light of the recent decision of the High Court in IMM v The Queen (2016) 257 CLR 300, [2016] HCA 14. French CJ, Kiefel, Bell and Keane JJ, referring to the definition of "probative value" in the dictionary to the Evidence Act, said at para [45]:
The use of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.
Left unexplained, the jury would have evidence that the accused, claiming to be innocent, was prepared to negotiate a plea of guilty to a lesser charge in respect of the alleged murder. While lawyers experienced in criminal practice might understand that, it is most unlikely that a jury of lay persons could do so. I agree with Mr Driels that it would require the accused to reveal the procedural history of the matter, including the length of time he had been in custody and the fact that at a previous trial the jury were unable to agree upon a verdict in respect of him.
True it is that this means that some members of that jury were not satisfied of his guilt, but it also means that other members of the jury were; so that, in the result, he was not able to secure his acquittal. Even then, although lawyers might understand that an innocent man in jeopardy of conviction of a charge as serious as murder might seek to cut his losses by negotiating with the Crown for a plea of guilty to a lesser offence, a jury, even with appropriate instructions, would still be likely to have great difficulty with that proposition. In the result, the evidence would be unfairly prejudicial to the accused.
However, it is unnecessary to express any concluded view about the application of s137 as I am satisfied that the first conversation does not fairly admit of the interpretation which the Crown prosecutor seeks to place upon it.
The second conversation raises considerations similar to the first. What the accused was asking Wally to say to Mr Ajaj is obscure. Of course, asking him to speak to his brother about the evidence at all was as foolish as it was improper, but I cannot see fairly implied in it an admission of guilt. Nor do I consider that the two conversations, taken together, could give rise to such an implication. I might add that the second conversation would raise the same issues of prejudice as those identified by Mr Driels in relation to the first conversation.
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Decision last updated: 23 November 2017