Raad v R

Court of Criminal Appeal (NSW)|2012-10-30|Before: Basten JA, Adams J, Hulme J

Background circumstances 13On 29 May 2009 Ms Ahearn, Mr Koloamatangi and Emad Raad (also known as Eddie) had been involved in a house invasion and robbery at an address in Narwee. All three received sentences of imprisonment in respect of that offending. Ms Ahearn's role was known to the jury because she was cross-examined as to the benefits she had obtained, both by reference to her period in custody and not being charged with respect to her involvement in the Lakes Hotel robbery. 14The events surrounding the present charges commenced on the evening of 29 May 2009. In his address to the jury, the prosecutor identified this as the first set of circumstances on which reliance was placed in the case against the applicant, because, it was alleged, they demonstrated that the Ruger 357 magnum used by Mr Koloamatangi was owned by the applicant. 15Ms Ahearn gave evidence that she and the applicant picked up a car belonging to the applicant's father and drove past the applicant's premises at Elphinstone Road, South Coogee in the afternoon of 29 May 2009. They noticed a police car out the front, at which stage the applicant became "somewhat agitated" and said words to the effect, "I've got my piece in my place under my bed", referring, as she understood it, to a gun: Tcpt, 17/03/11, p 449. Ahearn, the applicant and Koloamatangi then planned for Mr Koloamatangi to go into the applicant's flat to retrieve the gun whilst the applicant and Ms Ahearn would be "the eyes and the ears" outside. She was in a car driven by Mr Faraj (known as Nick) who was the applicant's cousin. Mr Koloamatangi went to the premises by taxi; the applicant was believed by Ms Ahearn to be in the cemetery at Coogee, or nearby: Tcpt, p 452. Mr Koloamatangi was successful in retrieving the gun. 16Mr Raad's account of the evening was similar to that of Ms Ahearn in a number of respects. He agreed that he had been driving his father's car but had returned it during the course of the evening. He agreed that he had rung Mr Faraj to see if he could "get a lift, get a lift around by him": Tcpt, p 689(47). Having dropped off his father's car at Kingsford, he then caught a taxi to Mr Faraj's home in Alexandria. From there Mr Faraj drove him and Ms Ahearn to South Coogee. He further agreed that Ms Ahearn and Mr Faraj remained in the car, but said that he (Raad) went inside and collected a laptop and phone charger. 17Mr Raad was cross-examined as to why he had needed to ask Mr Faraj to drive him around when he had been with Ms Ahearn in his father's car at about 8pm. He said it was because his father wanted the car back by midnight, although the explanation might have been considered thin by the jury, given there was a period of four hours during which he could have driven to his premises at South Coogee: Tcpt, pp 722-723. He further said it was a complete surprise to discover a paper in his flat indicating that the police had been there and executed a search warrant, but did not mention it to either Mr Faraj or Ms Ahearn when he returned to the car: Tcpt, p 726. 18In submissions to the jury, counsel for Mr Raad suggested that Ms Ahearn's story as to recovering the gun was quite implausible given that it assumed a police search (which had in fact taken place) during which the gun had not been discovered. It was more plausible, counsel submitted, that Mr Raad never had such a gun. 19The second circumstance relied upon in the prosecution case against Mr Raad was evidence of the delivery of a floral suitcase to Mr Lopeti's garage in Brussels Street, Mascot in the morning of Saturday, 30 May. That there was such a suitcase was confirmed by Mr Lopeti's partner. However, Mr Raad denied that he had taken the suitcase to Lopeti's premises on Saturday. 20The significance of the floral suitcase was somewhat obscure. Ms Ahearn's evidence that the applicant had left the suitcase placed him at Mr Lopeti's house on the Saturday morning whilst Mr Koloamatangi was present. Mr Raad gave evidence that he was not present and was at the home of a friend of Mr Koloamatangi, known as CJ. Mr Lopeti's partner, Ms Mouldey, confirmed the presence of the suitcase and gave evidence that it contained women's clothes. In his final address, counsel for the applicant told the jury that the relevance of the suitcase "escapes me at the moment, but in any event [I] will come back to that a little bit later": p 1028(14). It does not appear that he did return to the topic. Counsel for Mr Lopeti suggested that the gun had been in the bag and had been recovered by someone during the night, but that appears to have been entirely speculative: Tcpt, p 994(20). 21Although there appears to have been no other serious contender for delivering the suitcase, the jury may have had some doubt as to Mr Raad's role in the matter or at least his knowledge of the owner of the premises, as the applicant denied having met Mr Lopeti, prior to 31 May 2009. 22The third set of circumstances relied upon by the prosecutor (Tcpt, p 936) were the events at the Mansions Hotel in Rushcutters Bay during the night of Saturday, May 30. Earlier in the evening, Mr Raad had been to the Chamberlain Hotel in Haymarket with his girlfriend Ms Hiriaki (known as Jada), where they won money on the poker machines. (Mr Raad was to return to a room in the hotel later on Sunday morning, after the robbery.) There was closed circuit television (CCTV) evidence which placed Mr Raad, Ms Hiriaki, Mr Koloamatangi and Ms Ahearn at the Mansions Hotel in the early hours of Sunday morning. Mr Faraj was not present, but Mr Raad telephoned him at 2:19am inviting him to come to the hotel. It was apparent that Mr Faraj was not there to join the party as within two minutes of his arrival he, Mr Raad and Mr Koloamatangi left. Mr Raad agreed he had been at the hotel and that he and Koloamatangi and the women had come from CJ's place to celebrate his, CJ's, birthday. 23Mr Raad suggested that when he left with Mr Koloamatangi, Mr Koloamatangi was not feeling well. That, the prosecutor suggested, was a fabrication used as a cover for their purposes thereafter. It was clear from the CCTV records, as well as the telephone records, that the men left the Mansions Hotel at 2:37am. 24Ms Ahearn did not see Mr Koloamatangi again that night, although she and Ms Hiriaki were to meet Mr Raad and Mr Faraj at the Chamberlain Hotel in Haymarket, after the aborted armed robbery, on Sunday morning. According to her evidence, she was to learn some aspects of the events that occurred after the men left the Mansions Hotel. The log of mobile phone calls confirms that Mr Raad was in Rosebery by 3:10am and that Ms Ahearn was still near Kings Cross. According to Ms Ahearn, she and Ms Hiriaki attempted to contact the applicant and Mr Koloamatangi around 3:30am because they were hungry but had no money for food. Ms Hiriaki eventually contacted the applicant who told them to catch a taxi to Botany Road, Mascot where he would meet them at Garlo's Pies and pay for the cab. The applicant met them in a car driven by Mr Faraj and shortly thereafter dropped them on Maroubra Road near Ms Hiriaki's home. Ms Ahearn described the two men as "frantic because they had to be somewhere" and as being "a bit dishevelled, like a bit in a hurry": p 471(40)-(48). They said "they had to be back at the Lakes by 4": p 472(1)-(5). Again, the timing was consistent with the phone records of Ms Ahearn calling Mr Koloamatangi at 3:23, 3:32 and 3:48am from Kings Cross, Edgecliff and Darlinghurst. There was a further call from her to Mr Koloamatangi at 3:54am from Kings Cross and a final call to him at 4:15am from Mascot. This was the fourth set of events relied upon by the prosecution, from which it could be inferred that both Mr Raad and Mr Faraj were aware of things planned at the Lakes around 4am. 25The applicant gave evidence that he and Faraj had dropped Mr Koloamatangi off at a spot on Sutherland Street near Brussels Street: Tcpt, p 701. It is likely that that had happened by 3:40am as Mr Koloamatangi sent text messages to the applicant at 3:40 and 3:44am, with responses from the applicant at 3:49, 3:52 and 3:53am. At 3:53am Mr Koloamatangi called the applicant and spoke for one and a half minutes; at 4am the applicant sent text messages to Mr Koloamatangi on two occasions and called him at 4:31am. Thereafter, there was no communication between them. All of the communications from the applicant after 3:10am, for which location towers are noted, emanated from Rosebery or Eastlakes. As the prosecution pointed out, there were 12 calls or text messages between the two over the period from 3:26 to 4:31am. This, it was suggested, was inconsistent with any suggestion that Mr Koloamatangi was ill. The fact that both were in the area of the Lakes Hotel throughout that period suggested that they were there for a common purpose. 26So far as the timing of the robbery was concerned, Mr Lopeti said in a statement to police that he finished securing the hotel at 4:20am, but then sat down to have a drink with two other members of staff for about an hour. That would have placed the time of the robbery at about 5:20am when the three men left the hotel. Very soon after the robbery commenced, the licensee, who was living on the premises, rang police. Curiously, there seems to have been no evidence as to the timing of that call, but Sergeant de Lorenzo responded to a call over the police radio network at 5.20am: Tcpt, p 230(20). 27At 5:58am, Ms Ahearn called the applicant. At 6:16 and 6:29am the applicant called Ms Ahearn from near Pitt and Campbell Streets in Haymarket. Ms Ahearn had spent the time from when she was dropped off with Ms Hiriaki and about 6am at Ms Hiriaki's parents' house. She said she had tried to ring Mr Koloamatangi because she was worried, not having heard from him: p 472(40)-(45). She received no reply, but spoke briefly to the applicant, who said "I needed to hurry up and get to the Chamberlain Hotel, something's gone wrong. I need to get there straightaway. Yeah and he'll explain it all to me when I get there." She caught a taxi to the Chamberlain Hotel and was met by the applicant who paid for the cab. They went upstairs into a hotel room where the only other person present was Mr Faraj. She said that this occurred about 6am: p 474(3). She was then asked to recount the conversation which she did in the following terms: "Q. As best you can recollect, who said what in this room at the Chamberlain Hotel? A. Eddie started saying, 'Oh you should've - said anything yes it was a set-up, I swear, there were just cops came from everywhere' - it was like a really full-on conversation. Q. I want you to tell me the conversation? A. He - like I just said - in about - hang on, sorry, and like and he was saying, you know that 'you should've seen them, it was like a sea of red and blue of the cop cars coming' and he said, 'I think Tevi's been shot, I think he's been shot, I think he's been shot and I think something's - something's not right, I they've either got him or he's - or he's been shot.' Q. Anything else? A. Not that I can recall of the top of my - sorry. Not that I can recall right now, sorry. Q. What about Nick, did he say anything? A. He was really freaked out, he was really worried. Q. Did he say anything? A. Yeah he was saying things to the same effect, like its - 'I swear yes it's a set up, you know it was a set up, they were waiting for us', just things like that, to that effect." 28She said that they turned on the television to the Sunrise program on Channel 7 and watched the 6:30am news. Not long thereafter they left the hotel and went to CJ's place: p 475 (30). 29The final episode took place at "CJ's place", those present being "CJ, his girlfriend, Eddie, myself and some guy I didn't know": p 476(27). Ms Ahearn was asked whether the applicant had said anything more: "Q. Can you tell me what he said? ... A. He said about dropping - he dropped - he was trying to figure out how many bullets Tevi had and he said, 'I think he only had five because he dropped one and I had to pick it up.' ... Q. What's he referring to? A. When Tevi was getting ready and loading the gun. Q. What's being said about that? A. He just went through like the whole plan of what had - Q. Can you tell me what the plan was that he went through? A. OK, Tevi was all dressed in black, he was supposed to jump out of the back of the car, run, stand in the bushes, when the Lakes' door got opened, when Cliff [Lopeti] took the last worker out, Eddie - Tevi was supposed to jump up, grab the last worker, boom, get the eff inside, take her in and do whatever then takes place." 30The evidence then became confusing and there was a break, following which further evidence was given by Ms Ahearn (p 478-479): "Q. All right, at CJ's place did Eddie say anything about what the plan was? ... A. That Eddie - sorry, that Tevi was to get ready, get all blacked-up, like to get changed, sorry - that - and then he was to lay in the back of Nick's car, and, when they got to the Lakes he was to jump out, run over to - and hide like somewhere and wait for the last worker to walk out of the Lakes Hotel with Cliff and then when that last worker ... walked out, Tevi was to jump up, run, grab - and grab the last worker and take them back inside. Q. Did he say in that conversation anything about anything that had happened that morning that he saw or witnessed? A. Well, he said he heard a gunshot - or saw or witnessed, sorry - he was waiting and it was taking too long. So, all of a sudden he saw heaps of red and blue police lights, sorry - like a sea of red and blue coming, so immediately Nick and him left - Nick and Eddie left. ... Q. Prior to morning tea, you'd said something about bullets. What was it that he said about bullets? A. That when Eddie was loading the gun, he'd dropped a bullet, and that's why Eddie was trying to figure out how many gunshots he'd heard because trying to figure out - because there was a bullet dropped that Eddie had picked up and so he was trying to calculate how many fires had been shot from either end, from the police's end and from Tevi's end."

Unreliability of Ms Ahearn 31There was no doubt that the case against the applicant turned squarely on the evidence given by Ms Ahearn. She was not an entirely articulate witness; she had received a reduction on her sentence on the Narwee home invasion in exchange for an undertaking to give evidence in relation to the Lakes Hotel robbery and had also received $700 from the police whilst in prison, over a 15 month period (much of which was spent on a television set and a doona). She agreed with all the propositions put to her in that regard. She agreed that she had told lies on various occasions and that she had used drugs since the age of 12. She had used "ice" on the day prior to the robbery. 32One factor relied upon by the applicant as part of a possible motive for Ms Ahearn to lie about his involvement, was her relationship with Mr Koloamatangi. In this Court the applicant's counsel described her as Mr Koloamatangi's girlfriend; the Director denied that the evidence went so far. Whatever the state of the evidence, the prosecutor referred to her as Mr Koloamatangi's girlfriend in his final address and it should be accepted that the case was presented on that basis: p 940(15). In any event, the strength of the attraction does not appear to have been a key issue with respect to her credibility in circumstances where the benefit to Mr Koloamatangi from her evidence was extremely limited. 33Despite her admissions as to past misconduct, her credibility was very much a matter for the jury. Her evidence as to her location and the presence of others, at various points in time over the 12 hours from 6pm on the evening before the robbery to 6am on the following morning was in conformity with the times and locations recorded on CCTV and mobile phone records. Although it was put to her that she was lying with respect to the conversations, of which there was no independent evidence, there was a degree of consistency between her answers and known events. By contrast, the evidence of Mr Raad in certain respects, such as his movements between 3am and 5:20am on the morning of 31 May, was implausible. Thus, for example, the prosecution put to the jury that despite his frequent communications with Mr Koloamatangi between 3:26 and 4:31am, the lack of communication thereafter was telling. The applicant had given evidence that he was to collect Mr Koloamatangi from near the Lakes Hotel at 5am and had been there, but had left at 5:20 when Mr Koloamatangi had not appeared and he saw red and blue lights. The fact that he made no attempt to call Mr Koloamatangi on his mobile rendered that account highly implausible. Similarly, his suggestion that Mr Koloamatangi had left the Mansions Hotel at around 3am because he was feeling ill was also implausible. 34Accepting that it is impossible to gain a real appreciation of the credibility of a witness from a transcript of the evidence, reading the examination-in-chief and cross-examination of Ms Ahearn in full leaves the impression that her evidence had a coherent theme in relation to the applicant, which may well have appeared credible to a jury. She conceded past failings of her own, without accepting broad insinuations in respect of her character. On the other hand, if the broad insinuations had been correct, it is doubtful that she could have concocted and maintained the coherent story which she told. Furthermore, it was not put to her in cross-examination that her evidence had been concocted with the assistance of police or anyone else. It was part of the defence case that she was seeking to shift the blame from her boyfriend, Mr Koloamatangi, to others, including the applicant, but it is difficult to see how anything she said which implicated Mr Raad or Mr Faraj could have had, or been believed to have had, such an effect. 35Putting to one side the separate and belated assertion that the verdicts in respect of Mr Lopeti and Mr Faraj demonstrated that the jury did not rely upon Ms Ahearn's evidence, there was no basis to treat the verdicts against the applicant as unreasonable or unsupportable with respect to counts 1 and 7. If the jury believed Ms Ahearn, there was, on an independent assessment of the quality and sufficiency of the evidence, ample evidence to conclude that the applicant had a common purpose with Mr Koloamatangi with respect to the armed robbery, including knowledge that Mr Koloamatangi had a gun which was loaded. (It will be necessary to return to the conviction on count 4 in due course.) Applying the test in SKA, the challenge to the convictions on that ground should be rejected.

Inconsistency of verdicts 36At the commencement of the hearing of the application for leave to appeal, senior counsel for the applicant raised the entirely novel proposition that Ms Ahearn's evidence could not be accepted as a sufficient basis for convictions on charges against the applicant when such evidence was not accepted by the jury as supporting similar charges against Mr Faraj and Mr Lopeti. 37It was suggested to counsel that the applicant would need leave to raise a ground as to which no hint had been given in the notice of appeal or the written submissions filed on behalf of the applicant. Counsel resisted that proposition on the basis that the first ground of appeal was wide enough to encompass the point sought to be argued. In a sense that was true, but only because the notice of appeal failed to allege with any particularity the basis upon which the convictions were said to be unreasonable or unsupportable and by ignoring the scope of the grounds as revealed in the written submissions. On the view that leave was necessary to raise a new point, the respondent objected to a grant of leave. 38It is not necessary for present purposes to decide whether leave was required: if there were a further ground upon which a conviction carrying a significant gaol sentence could be impeached, which is raised before the court reserves its judgment and in circumstances where any unfairness to the prosecution can be met by an appropriate adjournment, it is preferable that the issue be considered. That course should be taken in the present case. 39The difficulty for the applicant lies in the merit of the challenge. Ms Ahearn's evidence was not of a uniform quality, nor did she give similar evidence in respect of each co-offender. The critical matters of which the co-offenders must have been aware in order for their involvement in the activities to give rise to guilt based on common purpose were twofold, namely: (a) knowledge that Mr Koloamatangi intended to carry out an armed robbery at the Lakes Hotel at around 4am on 31 May 2009, and (b) knowledge that Mr Koloamatangi would enter the hotel with a loaded firearm. 40Clearly those elements were satisfied in respect of Mr Koloamatangi himself and it was common ground that Ms Ahearn's evidence was of no more than peripheral significance in relation to his convictions. The cases in respect of Mr Lopeti and Mr Faraj, however, require further analysis.

(a) the case against Mr Lopeti 41Mr Lopeti had not been involved in the home invasion at Narwee. Prior to the Lakes Hotel robbery, he was not the subject of any police investigation. Indeed, he was accepted to be a man of good character and well-liked by his colleagues at the Lakes Hotel where he worked as a security officer. 42Mr Lopeti had no knowledge of or involvement with the following incidents (as described above): (a) the recovery of the pistol from the applicant's unit; (b) the events at the Mansions Hotel; (c) the trip from the Mansions Hotel to the Lakes Hotel taken by Faraj, Raad and Koloamatangi; (d) the collection of the two women at Garlo's Pies at Mascot by Mr Raad and Mr Faraj; (e) the events outside the Lakes Hotel between 5am and 5:20am, as recounted by Mr Raad in his evidence; (f) the conversation at the Chamberlain Hotel involving Mr Raad and Mr Faraj, and (g) the conversation at CJ's place concerning the loading of the gun. Indeed, of the evidence discussed above, the only event which potentially involved Mr Lopeti was the delivery of the floral suitcase to his garage early on the previous morning, but before he had returned from the Lakes Hotel. This was the first event relied upon by the prosecution as linking Mr Lopeti to the common purpose. 43The second matter relied upon by the prosecution was a conversation between Mr Koloamatangi and Ms Ahearn when he showed her the gun which had been recovered from the applicant's unit and stated that he needed to get rid of it, saying words to the effect, "I've got to go and see my uncle, because I've got to get rid of this": p 456(5). Mr Lopeti was his uncle. She gave evidence that they had taken a cab to the Lakes Hotel and that she had been introduced to Mr Lopeti but had run across the road to the service station to use a toilet as the Hotel was closed: p 456(25). There was, therefore, conversation between them which she did not hear and some she heard but in a language she did not understand: p 458. She and Mr Koloamatangi then went to Mr Lopeti's home at Brussels Street, which was a little more than a kilometre from the hotel. While they were at Mr Lopeti's home (and in his absence) Mr Raad dropped off the floral suitcase. Ms Ahearn gave evidence of a conversation between the applicant and Mr Koloamatangi to the effect that it "Looks like it's going to be the Lakes tonight bro": p 460(10). Mr Lopeti was not there for that conversation, but when he came to the house Mr Koloamatangi handed over the gun to him. There was further conversation in Tongan, which she could not understand. At the end of the conversation she stated that there was a remark in English, "Looks like it'll be about 4, 4:30 bro": p 461(50). These words were used by Mr Koloamatangi addressing Mr Lopeti: p 462(20). 44This was one of two occasions (the other was at the Chamberlain Hotel) where Ms Ahearn attributed almost identical statements to two participants within a short period. A jury might have had real doubt as to whether these words were used in the conversation between Mr Koloamatangi and the applicant, or in the conversation he had with Mr Lopeti (or, of course, both). 45Thereafter, there was nothing in Ms Ahearn's evidence which linked Mr Lopeti with the crimes. The heart of the case against Mr Lopeti rested on his role at the Lakes Hotel itself. He was said to be a large well-built man, as might have been expected of a security guard. However, when Mr Koloamatangi approached with his gun, Mr Lopeti was holding the door open and apparently fell to his knees without releasing the door. Further, when Mr Koloamatangi forced the hostages inside, the CCTV showed Mr Lopeti behind Mr Koloamatangi rather than in front. At a later stage when one of the hostages sought to wrestle the gun from Mr Koloamatangi, Mr Lopeti provided no assistance. 46The strength of this evidence would have depended upon a number of circumstances, none of which involved the credibility of Ms Ahearn. The mere fact that the gun was left with Mr Lopeti, who may well have been licensed to hold a weapon, was inconclusive in relation to his knowledge of the intended robbery. 47The case against Mr Lopeti further depended upon lies which he told in relation to his knowledge that Mr Koloamatangi was the robber and of his relationship with Mr Koloamatangi. Again, these matters had nothing to do with the evidence of Ms Ahearn. 48In so far as the acquittals of Mr Lopeti were relied upon to demonstrate some inconsistency on the part of the jury in accepting Ms Ahearn's evidence against the applicant, the argument was without merit. To that extent, the ground must be rejected.

(b) involvement of Mr Faraj 49The evidence against Mr Faraj fell into quite a different category. It depended almost entirely on the evidence of Ms Ahearn. As has been explained above in describing the evidence she gave against Mr Raad, he was the driver responsible for ferrying Mr Raad and, on occasion, Mr Koloamatangi to their various destinations. He drove Ms Ahearn when she was keeping a lookout outside the applicant's unit, when as she said, Mr Koloamatangi was collecting the gun. However, for the most part, he appears to have been a silent witness to events. The only occasion when words were attributed to him which showed guilty knowledge was the meeting in the Chamberlain Hotel at 6am after the robbery, when words were attributed to him that "it was a set-up, they were waiting for us". However, those words were also attributed to Mr Raad and the jury may well have entertained a doubt as to whether they were in fact spoken by Mr Faraj. 50The other critical evidence related to knowledge of Mr Koloamatangi being armed with a loaded pistol. The applicant was aware of that fact, on Ms Ahearn's account of his conversation with her, because he had watched Mr Koloamatangi load the gun and drop a bullet in the car. It was Mr Faraj's car, but he was driving and there was no evidence as to where the applicant and Mr Koloamatangi were sitting at the time that occurred. It was at least plausible that they were both in the back seat. There was no direct evidence that Mr Faraj knew what had happened until after the event, when he, like Ms Ahearn, heard the applicant's description. 51The prosecution also relied to some extent on the evidence given by Ms Ahearn as to the dishevelled and anxious state of both men in the car when the two women were collected from Garlo's Pies at Mascot at around 4am. However, that evidence was not supported by Ms Hiriaki and was itself somewhat ambivalent, gaining its strength from the other evidence of surrounding events, at least with respect to the applicant. 52In his address, the prosecutor identified the first fact or circumstance involving Mr Faraj as the collection of the gun with Ms Ahearn in the car. He noted that there was no other involvement of Mr Faraj until the applicant summoned him to the Mansions Hotel around 2am on the morning of May 31. After noting the timing of his arrival, the prosecutor stated (p 943(25)-(28): "As I say the proposition being put to you is that in reality Mr Faraj was the transport that was going to assist them in the operation at the Lakes Hotel later on and he was therefore attending the Mansions Hotel for the purpose of picking up Mr Koloamatangi and Mr Raad." 53So much may be accepted: it went but a short distance in demonstrating Mr Faraj's state of knowledge as to the events that were to occur thereafter. The evidence of both the applicant and Mr Faraj was that they went to the Lakes Hotel and the applicant entered the hotel, at sometime after 3am. There was some discrepancy as to where Mr Koloamatangi was at that stage: p 943(45). 54The prosecution then relied upon 30 minutes of CCTV footage to demonstrate that Mr Faraj's evidence that he spent some time filling up the car with petrol at the Caltex service station near the Lakes Hotel was false. However, the possibility that he took that step before or after the period covered by the CCTV footage allowed the inference that Mr Faraj was, as the prosecutor accepted, an unreliable, rather than an untruthful, witness: p 944(22)-(25). 55The prosecution was able to demonstrate that Mr Faraj drove around the area for some time, without any clear purpose. He also left with the applicant to pick up the two women at Garlo's Pies. 56Mr Faraj gave evidence of the place where he said he was waiting to pick up Mr Koloamatangi. Although the prosecutor sought to rely as against him on the absence of a phone call to inquire where Mr Koloamatangi was, as might have been expected if indeed they were waiting for him to complete his lawful business, the jury may well have accepted that the failure was that of Mr Raad, Mr Faraj being merely his driver. 57Reference has already been made to the conversation at the Chamberlain Hotel. In respect of the critical conversation at CJ's place, with respect to the loading of the pistol, the prosecutor conceded that there was "some doubt as to whether Mr Faraj was still there": in fact, Ms Ahearn's evidence suggested he was not. 58Mr Faraj made statements to the police and gave evidence. The prosecution was able to assert, no doubt with some purpose, that Mr Faraj told lies. However, to the extent that the jury were required to assess that material, it was not material having any basis in Ms Ahearn's evidence. As the respondent noted in submissions following the hearing of the appeal, Mr Faraj had significant evidence of good character, testified that he was not a drug user and had left CJ's place on the morning after the robbery because persons in the apartment were using drugs and he "didn't want to smell them fumes": p 805(5). He gave evidence that he suffered from an anxiety condition and depression and took medication: p 783(33)-(45). Ms Hiriaki said that he was "always stressing out": p 618(2). As the Director submitted, Mr Faraj "may have presented as an anxious and even somewhat malleable individual who was merely a follower of the [applicant]". 59Again, the central role of Ms Ahearn's evidence in respect of the applicant is clearly distinguishable from the significance of her evidence with respect to Mr Faraj. The available explanation that, on the critical issues, the jury were simply unpersuaded to the necessary degree that Mr Faraj knew about the events planned for the early hours of the morning of 31 May provides an available explanation of the differing verdicts. Ms Ahearn's evidence can have played only a small part in that assessment. This aspect of the appeal should also be rejected.

Conviction on count 4 60Once it was accepted that the applicant was aware of the proposed robbery at the Lakes Hotel by Mr Koloamatangi and was also aware that Mr Koloamatangi would be armed with a loaded pistol, there were ample grounds to convict the applicant on count 1, of robbery while armed with a dangerous weapon. 61Further, the fact that the gun was loaded with live bullets was sufficient to raise in the applicant's mind the possibility that the gun would be used and, if it were, someone might well be wounded. That it was likely to be used if police or security officers sought to apprehend Mr Koloamatangi provided a sufficient basis for a conviction on count 7 involving wounding of Sergeant de Lorenzo intending to prevent the lawful apprehension of Mr Koloamatangi. In other words, it was well within the range of possibilities that Mr Koloamatangi would so use the gun to prevent his own apprehension. 62What is more troubling is the conviction on count 4. It required the applicant to foresee the possibility that, if the police or other security officers sought to intervene, Mr Koloamatangi would shoot at one of them with intent to murder. Envisaging such a possibility would have required knowledge or a belief as to Mr Koloamatangi's character or capabilities and, possibly, his state of mind on that night, which would have taken the planned robbery beyond the range of possibilities created by the mere presence of a loaded pistol. With respect to Mr Koloamatangi, it was in effect only count 4, or its alternative, count 5, which was left to the jury. He was found guilty on count 4. As part of the evidence against him, there was a camera mounted on Sergeant de Lorenzo's taser which continued to operate after the taser had been discharged. It showed Mr Koloamatangi standing pointing the pistol, apparently directly at Sergeant de Lorenzo at close range and firing. The jury might well have wondered how the shot had missed. It was evidence from which the jury was well entitled to be satisfied beyond reasonable doubt as to Mr Koloamatangi's intention at a critical time. However, that was not material which was available as against the applicant. 63The prosecution treated as sufficient to establish the relevant common purpose, the applicant's knowledge that Mr Koloamatangi had taken a loaded pistol to effect a dangerous robbery, with the planned taking of a hostage. However, it was a large step to infer from those facts foresight of the possibility of shooting with intent to kill. 64The exercise required of the jury depended upon them accepting Ms Ahearn's evidence as to what the applicant said had occurred in the car when loading the gun. It also required the rejection of Mr Raad's evidence in that regard. Beyond those circumstances, the jury's conclusion was not based upon the credibility or reliability of individual witnesses. Rather, it required an objective assessment, by way of inference, as to Mr Raad's state of mind prior to the actual events which occurred inside the Lakes Hotel. There was a real danger, however, that the jury drew the necessary inference from its knowledge of the events which in fact occurred at the Lakes Hotel and the limited level to which the foresight had to rise, namely merely "a substantial risk" of the further crime being committed. On the available evidence, the jury should not have been satisfied, beyond reasonable doubt, of actual foresight. 65In summing up this aspect of the prosecution case to the jury, the trial judge stated (p 52): "The Crown submits that each of the three accused, Mr Faraj, Mr Raad and Mr Lopeti, knowing that Mr Koloamatangi was taking a loaded gun to perform the armed robbery, he contemplated or foresaw as a possible incident of the robbery that the gun would be used and that the police would arrive, and in respect of count four, that each of those three accused contemplated or foresaw as reasonably possible those two matters I have just referred to, the gun will be used, the police would arrive, that a person would be shot, that that person would be a police officer and that Mr Koloamatangi would shoot the police officer with the intention to kill him. So the Crown says for all those reasons you would be satisfied as to count four." 66The summary of the prosecution case was appropriate and sufficient up to the last element. In effect, it treated all three co-offenders as in the same position, including Mr Faraj who, on any view, had limited acquaintance with Mr Koloamatangi. That conventional directions had earlier been given with respect to the burden of proof and the elements of the particular offences (at pp12-13) did not, in all the circumstances, overcome the risks with respect to that particular element. While there was no challenge to the adequacy of the directions given by the trial judge with respect to count 4, it would have required a strong direction to be given with careful reference to the dangers noted above, if a conviction of the applicant on count 4 were to withstand challenge. 67It is sufficient to conclude that, as the matter was left with the jury, there was a miscarriage in this respect. Given the real doubt as to whether a jury fully apprised of the dangers could convict on the evidence presented, it is not an appropriate case in which to order a retrial. Accordingly, the verdict on count 4 should be set aside and acquittal entered in its place.

Jury directions 68The second ground of appeal asserted that the directions given by the trial judge in relation to the unreliability of Ms Ahearn were inadequate. This ground was not addressed to the direction with respect to count 4 to which reference was made above. 69It was not in dispute that there were aspects of Ms Ahearn's circumstances which rendered her evidence potentially unreliable. She was, the applicant submitted, a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings, so as to invoke the requirements of s 165 of the Evidence Act 1995 (NSW): s 165(1)(d). It was accepted that the trial judge was requested to warn the jury that her evidence might be unreliable: s 165(2). A warning was given to the jury and in terms which extended beyond the requirements of s 165. 70Appropriately, the initial warning was given at an early stage of the summing-up, after the trial judge had summarised significant aspects of the prosecution case, by reference to the evidence of Ms Ahearn. Her Honour commenced with the following statement (p 24): "It will be clear to you that the Crown case in respect of Mr Raad, Mr Faraj and Mr Lopeti rests heavily on the evidence of Yasmine Ahearn and I am going to give you some directions and warnings about her evidence. I am giving them to you at this point because I have referred to some of her evidence in summarising the Crown's case against Mr Raad, but that does not mean that these warnings and directions relate only to the case against Mr Raad. They relate to Ms Ahearn's evidence as it applies to Mr Faraj, Mr Lopeti and Mr Raad." 71The warning included reference to Ms Ahearn's sentence in respect of the Narwee matter and the fact that she had obtained a discount for future assistance to the authorities (p 25); reference was made to the likely consequence if she failed to keep her promise; the fact that she was paid money by the police whilst in prison; the fact that she had admitted lying in the past and the extent to which there was independent support for her evidence. 72The applicant made three complaints about the direction. First, he submitted that the warning "did not extend beyond a level of abstraction that lacked reference to the specific matters that caused Ms Ahearn's evidence to be unreliable". That complaint involved a value judgment as to how much detail to include. As already noted, the warning identified specific matters which could render her evidence unreliable. If something more precise had been required, it should have been identified. More importantly, the terms of any further warning should have been identified at trial and a request made for a further direction: that did not happen. The first complaint should be rejected. 73The second complaint was more specific. While accepting that reference had been made to the 15% discount for future assistance, the applicant submitted that no mention had been made "of the undertaking/immunity she received in respect of any prosecutions for the Lakes Hotel incident". This, too, was a matter which required careful attention to the precise nature of the warning sought. The evidence did not rise to the level of any "immunity" in respect of the Lakes Hotel incident. There was, however, evidence that she had been given an undertaking that she would not be prosecuted on the basis of the assistance provided to police. This does not appear to have been a matter which loomed large in the case for any of the accused. Indeed, there may have been forensic reasons for not emphasising such a matter, and for not seeking a direction from the trial judge which would have the effect of emphasising the issue. On the one hand, her evidence did not suggest any significant involvement in the planning of the robbery and she was certainly not party to its execution. On the other hand, the closer she was to the events (and thus the greater the benefit from a promise not to be charged), the more likely her evidence was to be reliable, so long as it was truthful. Again, absent a specific request for an additional direction, there is no proper basis for intervention by this Court. 74A second limb of this complaint related to the lack of mention made of "the sum of money Ms Ahearn received from the police prior to giving evidence at trial". While it is true that the specific amount was not mentioned in the summing-up, the trial judge expressly referred to submissions that she was "motivated to make false statements to the police because she was paid money by them while she was in prison": p 26. Her denial as to making false statements was also noted. It is true that there was evidence of the sum involved ($700), about which she was cross-examined. Again, it cannot be said that the warning was inadequate because the precise sum was not mentioned; and again there was no request to do so. The second complaint must be rejected. 75The third complaint was of a different nature. It appeared to have two elements to it. The first was that what was required was a warning as to "the effect" that the benefits may have had on the truthfulness of Ms Ahearn's evidence. The submission continued: "Indeed, this is the purpose behind a judicial warning, to inform jury members of matters concerning the reliability of witnesses that they are otherwise unfamiliar with and that are peculiarly within the knowledge of the courts." 76The assumption underlying this complaint should be accepted: its application in the present case is another matter. The trial judge did state that warnings and directions of the type she was giving flowed from "experience the courts have accumulated over the years which shows that evidence of witnesses in a similar position to Ms Ahearn is often unreliable": p 24. She continued: "I am not suggesting that evidence from such a witness is always unreliable, but because the evidence from such witnesses may be unreliable, for that reason alone you should approach Ms Ahearn's evidence with considerable caution. Experience has shown that there may be many possible reasons why a person in Ms Ahearn's position may give evidence which is unreliable. I am going to give you some examples of things that the courts have come across over the years. They do not necessarily apply in this case." 77The summing-up continued by reference to standard examples of persons wishing to shift blame, to incriminate others because of feelings of dislike or hostility, to obtain a reduction of their sentences and to continue falsehoods because they feel "locked in". The important matter which would not have been within the experience of jurors concerned the discount for future assistance. In that respect, the trial judge gave a full explanation of the sentence imposed, the discount for a plea, the further discount for past assistance and the discount for future assistance, "that is her promise to give evidence in this trial": p 25. The summing-up continued: "You heard, and it is the law, that if Ms Ahearn had not kept her promise to give evidence in this trial the Crown could take her to a higher court, an appeal court, and ask that court to increase her sentence by the amount her sentence was reduced by for her promise of future assistance, giving evidence in this trial. Ms Ahearn denied when it was put to her that she was lying in her evidence to avoid a few more months in gaol. It was submitted on behalf of Mr Lopeti and Mr Faraj and Mr Raad that Ms Ahearn made false statements to the police about them, and maintained those false statements in her evidence, here, to keep her sentence reduction." 78The nature of the risk in this respect was identified and the jury can have been in no doubt that she had obtained a benefit from her past assistance and had a significant incentive to provide further assistance. Again, what more was required was not the subject of any proposed direction, suggested in this Court, or requested of the trial judge. 79With respect to other matters, none of which were identified as deficient, it could hardly have been in doubt that the jury understood the basis of potential unreliability. The scope and nature of her propensity to lie when it suited her, with little regard to any moral or other obligation to tell the truth, had been fully explored in her cross-examination and in addresses. No juror could have been in doubt as to its relevance to the issues to be determined. The first element of this complaint is without substance and should be rejected. 80The second element is somewhat different: the complaint was that the summing-up failed to constitute a warning from the trial judge, "with the authority of the judge being used to impress the significance of the matter on the collective mind of the jury", but rather constituted "a repetition of counsels' arguments". In support of this submission, the applicant referred to the remarks of this Court in R v TJF [2001] NSWCCA 127; 120 A Crim R 209 at [66] (Studdert J; Beazley JA and Sperling J agreeing). The passage asserted that whilst counsel may well have reminded the jury of the specific features of the complainant's evidence calling for caution, "what counsel may have said in address and what the judge may have said in his summing up by way of reminding the jury of the submissions of counsel, does not substitute for a direction of principle, stated by the judge to be such, in the context of informing the members of the jury of the principles of law which they were required to apply to their deliberations". 81That passage, relied upon by the applicant, is not precisely to the point: explaining the need for caution in respect of elements of unreliability of evidence does not involve a statement of legal principle. It is a legal principle that the warning is required and must be given by the trial judge. It is also a legal principle that statements by counsel emphasising the need for caution will not substitute for such a warning. 82The warning given in fact took both courses, correctly. It identified the reason for giving warnings about such evidence and, to the extent that it was not obvious, explained the sources of unreliability. It also explained the matters relied upon by reference to the evidence of Ms Ahearn. There was no failure to give a warning because counsel had said enough in addresses; there was no parroting of what had been said in addresses, nor did the trial judge suggest that the warnings did not carry the authority of the law and accumulated judicial experience. This ground must be rejected. 83Finally, the applicant noted that further directions had been sought by counsel for Mr Lopeti in which the last point was directly raised: Summing-up, p 57. The following exchange occurred (p 58): "HER HONOUR: I don't think my direction is deficient in that regard, I certainly told them. I mean I think I raised every issue that has been raised and I told them I was giving them warnings. RUSSELL: Your Honour is familiar with [R v TJF], does your Honour need me to hand that up or no? HER HONOUR: No thank you. RUSSELL: Thank you your Honour. Well I have put the point your Honour, thank you very much for the opportunity to put those matters and does your Honour propose to - HER HONOUR: I will tell them about the no corroboration point. RUSSELL: Thank you very much your Honour. HER HONOUR: Mr Crown, ... do you think the 165 direction is deficient, do I need? CROWN PROSECUTOR: I thought you Honour covered the territory and explained to the jury why it was the direction was being given. 84Mr Russell was appearing for Mr Lopeti. It is apparent that he did not seek any specific further direction. Further, when, at the completion of the summing-up, the trial judge asked if anyone had anything further, counsel for the applicant stated (Summing-up, p 55): "I have nothing to raise your Honour." 85Where counsel for one accused squarely raises an issue, but the submission is not expressly supported by counsel for the co-accused, the Court might well allow the co-accused to rely upon that submission, despite the terms of Criminal Appeal Rules, r 4. However, the exchange between counsel for Mr Lopeti and the trial judge did not engage r 4: no further direction was sought. 86For the reasons already given, there is no reason to suppose there was any deficiency in the summing-up with respect to the matters complained of. Had there been, it is, for the reasons stated, a clear case in which further directions might have been sought, but were not. The terms of r 4 are thus engaged. Leave to raise ground 2 should be refused. Were leave to be granted, the ground would be rejected.

Conclusion 87The result is that the applicant should be given leave to appeal against his convictions; his conviction on count 4 should be set aside and an acquittal entered in its place. The appeal should otherwise be dismissed, subject to his entitlement to make further submissions with respect to his sentence. 88It will be recalled that the sentence on count 4 was accumulated on the other (concurrent) sentences by a period of 12 months. If that sentence were merely set aside, his sentence on count 7, involving a non-parole period of four years to date from 15 June 2011, would remain as the longer of the two remaining sentences. It is not immediately apparent why the Court would interfere with that sentence, on the basis that the conviction on count 4 was set aside. It had a commencement date which was the same as the sentence on count 1 and the nature of the offending was not rendered less serious by reason of the acquittal on count 4. 89Indeed, the applicant may be considered fortunate in being able (as the matter presently stands) to take advantage of the absence of a conviction in respect of count 5 which would also have carried a significant additional sentence. Nevertheless, these are matters which may be addressed in any further submissions. 90The Court should direct that any further submissions in respect of sentence should be filed and served according to the following timetable: (a) submissions by the applicant by 16 January 2013; (b) submissions in reply on behalf of the Director by 30 January 2013. If the parties do not wish to make further submissions in respect of sentence, the Court should be so advised within those times. 91ADAMS J: I agree with Basten JA. Furthermore, applying the test in SKA v The Queen [2011] HCA 13, I am satisfied that the verdicts of guilty on counts 1 and 7 are not unreasonable and can be supported having regard to the evidence. 92R A HULME J: I agree with the reasons for judgment of Basten JA and the orders he proposes. I confirm that upon my own assessment of the evidence concerning counts 1 and 7 I have no doubt that the applicant was rightly convicted.

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: 12 December 2012

Judgment 1BASTEN JA: At about 5am in the early hours of Sunday morning, 31 May 2009, there was a robbery at the Lakes Hotel, Rosebery, in the south of Sydney. As the hotel was closing after Saturday night trading, Tevi Koloamatangi, armed with a Ruger pistol, approached three men who were leaving the hotel and forced them back inside at gunpoint. According to the prosecution case, Emad Raad, the present applicant, was waiting nearby in a car. The car was driven by Nicholas Faraj. One of the men taken hostage as he was leaving the hotel was a security officer, Silivesiteli Lopeti. Mr Lopeti was a relative of Mr Koloamatangi and was believed to have had an involvement in planning the attempted robbery. 2The licensee of the hotel lived on the premises and was able, unbeknownst to Mr Koloamatangi, to call police, who arrived in force shortly after the robbery commenced. The senior officer, Sergeant de Lorenzo, arrived armed with a taser, but without his Glock pistol. Having used his taser without noticeable effect, Sergeant de Lorenzo was forced to seek cover, as he was fired upon by Mr Koloamatangi. He was able to obtain a pistol from a colleague and several shots were exchanged. Both Sergeant de Lorenzo and Mr Koloamatangi were injured. Mr Koloamatangi fired three shots in the course of the exchange. He eventually surrendered at about 10:00am. 3Following the police investigation, charges were laid against Koloamatangi, Raad, Faraj and Lopeti. All four stood trial together. It was not suggested that either Mr Faraj or the applicant was in the hotel or wielding a firearm: the case against them was run on the basis of a common purpose by participating in a joint criminal enterprise with Mr Koloamatangi. Critical evidence inculpating Raad and Faraj in the Lakes Hotel robbery and shooting was given by Koloamatangi's girlfriend, Yasmin Ahearn. 4At the commencement of the trial, on 2 March 2011, Mr Koloamatangi entered pleas of guilty to four offences, namely aggravated armed robbery (count 1), two offences of detaining employees of the Lakes Hotel for advantage (counts 2 and 3) and wounding Sergeant De Lorenzo with intent to prevent his lawful apprehension (count 7). He stood trial in respect of an offence of shooting at Sergeant de Lorenzo with intent to murder him and was found guilty by a jury (count 4). On 23 May 2011 he was sentenced in the District Court, although certain sentences were later increased by this Court on a prosecution appeal: R v Koloamatangi [2011] NSWCCA 288. 5While there were seven counts in the indictment, not all accused were charged in respect of all counts. Thus, Mr Lopeti was charged on counts 2 and 3 with respect to detaining the two hostages (other than himself) with the intention of obtaining an advantage, namely to rob the Lakes Hotel. The applicant was not charged with those offences. 6The primary charge (count 1) involved robbery whilst armed with a dangerous weapon, namely a firearm. Mr Raad was convicted on that count and sentenced to six years imprisonment, comprising a non-parole period of three years to date from 15 June 2011 and an additional term of three years. He is still serving the non-parole period for that offence, which is due to expire on 14 June 2014. He was further charged with shooting at Sergeant de Lorenzo with intent to murder (count 4) and, in the alternative, discharging a firearm with intent to cause grievous bodily harm to Sergeant de Lorenzo (count 5). The applicant was convicted on count 4, with the result that no verdict was taken with respect to the alternative count. For that offence he was sentenced to imprisonment for seven years, comprising a non-parole period of four years to date from 15 June 2012, expiring on 14 June 2016, with an additional term of three years. 7Count 6 alleged that the applicant did wound Sergeant de Lorenzo with intent to murder him; an alternative charge (count 7) alleged that he wounded Sergeant de Lorenzo intending to prevent the lawful apprehension of Tevi Koloamatangi. The applicant was acquitted on count 6 and convicted on count 7. On count 7 he was sentenced to imprisonment for six years, comprising a non-parole period of four years to date from 15 June 2011, expiring on 14 June 2015, with an additional term of two years. 8Mr Lopeti was acquitted on all counts. The jury was unable to reach a unanimous verdict in respect of Mr Faraj, on all counts with which he was charged.

Issues on appeal 9The applicant sought leave to appeal against his convictions. The grounds of appeal lodged on behalf of the applicant on 11 May 2012, more than a year after the trial and almost 12 months after the sentencing hearing, contained two broad grounds, namely: (1) the verdicts of guilty on counts 1, 4 and 7 are unreasonable and cannot be supported having regard to the evidence; (2) the directions given by the learned trial judge in relation to the unreliability of the witness Ms Ahern were inadequate. These grounds were given some substance by the written submissions filed for the applicant on the same date. 10Although Mr Raad was referred to throughout those submissions as "the appellant" the grounds did not involve "a question of law alone" and hence required leave: Criminal Appeal Act 1912 (NSW), s 5(1). In the event that the appeal was successful in part, but not in whole, leave was sought to appeal against sentence in respect of any remaining count. 11Some detail with respect to his co-accused will be relevant because the applicant sought to rely upon the refusals of the jury to convict either of his co-accused Lopeti and Faraj on any counts despite, as he asserted, significant common elements in the evidence against each. These circumstances, he submitted, rendered the verdicts against him unreasonable or unsupportable. It is necessary for this Court to make its own assessment of the whole of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] - [14] (French CJ, Gummow and Kiefel JJ). 12Because the applicant (and Faraj and Lopeti) did not actually participate in the robbery, the detaining of hostages or the shooting, their liability depended upon their participation in a joint criminal enterprise. With respect to the offences involving use of the firearm, the jury was directed that even if such criminal activity was not part of the agreement, those involved in the joint criminal enterprise would be liable if "the joint enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime" and that what was contemplated by the parties was "the substantial risk, not merely a slender chance, that the other crime will be committed": MFI 25, elements document. The applicant did not challenge the terms of the direction in that regard. He accepted that the direction adequately reflected the elements, including the actual contemplation of possible consequences, referred to in McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 115, referring to the reasons of Mason, Murphy and Wilson JJ in Johns v The Queen [1980] HCA 3; 143 CLR 108 at 130-131.

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