The evidence
6 Rossini gave evidence that, as at the time of the incident at Five Dock, he had known the appellant for between two and a half to three years, and that in the months preceding that incident he had seen him on an almost daily basis.
7 Rossini gave evidence that, on the night of the incident, he and the appellant had gone to premises in Telopea Street, Punchbowl, where a mutual friend named Shadi Derbas lived. Apart from Derbas, also present was a man named Bassam Kazzi (whom Rossini also knew), and a young male aged between 16 and 18 years (whom Derbas knew but Rossini did not). Rossini described the young male as being five feet and five inches tall, and of slim build. He also provided descriptions of the other men and the clothing they were wearing that evening.
8 At Derbas' house, a decision was made that the group would go to a café in the Five Dock area. They travelled in a red Mitsubishi Magna station wagon to Café Extreme where they met up with a man named Fadi Yannieh. They spoke to Yannieh, and left after having had a meal. Yannieh gave evidence recalling an occasion on which Derbas and three of his friends had come to the café in mid-1998 for a meal. In cross-examination, however, he said that the appellant was not one of the men who was with Derbas on that occasion.
9 Rossini said that, following the meal, the five men returned to the vehicle and drove along the Great Northern Road to the Five Dock Hotel. There they stopped at a set of traffic lights which was located outside the hotel. Derbas was driving, Rossini was in the front passenger seat, the appellant was seated behind Derbas, Kazzi was behind Rossini and the young man was in the middle of the back seat.
10 Other evidence established that, at the time the vehicle stopped at the traffic lights, two patrons of the hotel, Ronald Singleton and Michael Hurle (who were friends), were standing outside it having become involved in a physical altercation. Adam Wright, who was a friend of the two men, had also emerged from the hotel in an endeavour to placate them. These men and the occupants of the vehicle were strangers to each other. Rossini saw the struggle taking place a short distance from where the vehicle had stopped. He wound down the window and shouted out to the men "Come on, fellows, punch on". This prompted one person, whom the evidence established was Ronald Singleton, to approach the vehicle and say something to the effect of "you fucking wogs". Rossini then grabbed his wrist and opened the vehicle door, forcing Mr Singleton back. Rossini then exchanged punches with both Mr Singleton and one of the other men who had also come over to where the vehicle had stopped.
11 Rossini said that he received a blow to his jaw which knocked him back so that he was half in and half out of the vehicle. At that stage, he became aware of Kazzi who was also fighting with someone in the vicinity of the vehicle. Rossini said that, after he was forced back into the vehicle, he heard one or two gunshots. He said that they came from an area outside the back of the vehicle. He looked in the direction from which they had come and saw the appellant running "from my left to his right with a gun in his hand firing". He said that he was firing "in the direction of the footpath". As a result he saw "three or four blokes falling to the ground".
12 Rossini said that he then became aware of someone pulling on the bottom of his trouser leg. Other evidence indicates that the person in question was Ronald Singleton. Rossini said that he tried unsuccessfully to kick the man away. Derbas, who had remained in the vehicle, then tried to pull Rossini back into the vehicle. Rossini then became aware that the appellant had returned to the vehicle. The appellant pointed his gun in the direction of the man who was holding his leg and then pulled the trigger a few times. However, the gun just clicked as apparently there were no bullets left in it. Eventually Rossini freed himself and the vehicle drove off. Everyone had returned to their original positions in the vehicle except for Kazzi and the appellant, who had changed places in the back seat.
13 The appellant then inquired as to whether everyone was all right. It seems that only minor injuries had been sustained, which prompted the appellant to say "Fuck the Aussies, as long as we're all right. If it happened again, I would do the same thing". The appellant also said that he had run out of bullets.
14 As they were driving back to Derbas' house, both the appellant and Rossini indicated that their mobile telephones were missing. Later, Rossini suggested to the appellant that he should ring a mutual friend and tell him to inform their other friends that they should not try to contact them on the missing telephones. Derbas learnt from associates, who were operating a police scanner, that police were looking for the vehicle in which they had been travelling. Patrons of the hotel had evidently provided police with the vehicle's registration details. The vehicle was placed under the carport at Derbas' request "because of [police] helicopters". The vehicle was then de-greased in an endeavour to remove from it any fingerprints and saliva. Attempts were also made to tamper with the locks and the ignition of the vehicle. (Subsequent examinations of the vehicle by the police revealed damage to the lock of one of the doors and the ignition barrel as well as the presence of an oily substance; a strong odour which was described as being similar to a cleaning agent was also detected.) Arrangements were then made to dispose of the vehicle. Next day, Rossini destroyed the clothing which he had been wearing. There was also discussion between him and the appellant about disposing of the gun which the appellant had used during the course of the incident. The appellant later told Rossini that he had thrown it over the bridge into the Cooks River. Police divers were however unable to locate any such weapon.
15 Rossini gave evidence that the appellant had made a call to his girlfriend, Leia Colbert, on Derbas' mobile telephone. He overheard him telling her that something had come up and that he could not see her that evening. Telephone records indicate that a call was made at 10.48 pm that evening from a mobile phone for which Derbas was the subscriber to a telephone service registered in the name of Ms Colbert's mother. Ms Colbert gave evidence that she had begun to keep company with the appellant in about June 1998. He provided her with various telephone numbers on which she could reach him. She recorded the numbers in her diary. She said that the appellant had arranged to pick her up at 8 pm on 17 July 1998 (the date of the shooting incident). She said that he had, however, telephoned at about that time to say that he could not make it. Later that evening, he had telephoned her again to tell her not to call him on his mobile or to leave messages because he had lost it. Instead, he provided her with another number on which she would be able to ring him. She said that she had rung that number two days later and had left a message. The appellant told her, when he returned her call, that he had to go away on business for a few days and that he would call her when he returned. She did not hear from him again.
16 On Sunday 19 July, the appellant made arrangements for a friend, Ellie Gialouris (whom he had known for about eight years), to pick up both him and Rossini from his house. From there they went to her hair salon where she gave each of them a haircut. Rossini said that the appellant had had his hair cut all over whilst he (Rossini) had had his ponytail cut off and the back of his hair shaved. Arrangements were then made for Ms Gialouris to drive them to Callala Beach (which is apparently about two and a half hours' drive from Sydney). The two men stayed there at her parents' place for about a week. Rossini requested her to tell police, if inquiries were made of her, that she had in fact cut his hair the previous week.
17 Ms Gialouris gave evidence that she had cut the men's hair, although she described the appellant's haircut as being the usual trim which she was in the habit of giving him. She confirmed that they had gone to Callala Beach for a few days but was unable to recall whether it was the same day that she had done their hair or a couple of days later.
18 Rossini gave evidence that the weapon which the appellant was carrying at the time of the incident was a small black 0.22 revolver which had red rubber bands on the handle. He said that the appellant had been carrying it every day for a period of about five months. He was shown a series of photographs of guns by the police and he identified one which he said was the same shape, size and colour as the gun which the appellant had had on the night in question.
19 A man who was given the pseudonym John Lee gave evidence that he had seen the appellant on an almost daily basis in the early part of 1998. He said that he was usually accompanied by Rossini. He gave evidence that he observed that the appellant was carrying a gun during that period of time. He described it as a dark, blackish revolver which had red elastic bands around the handle. The appellant told him that "revolvers do not let you down because they guarantee six shots".
20 A man who was given the pseudonym Dennis Green gave evidence that he too had had almost daily contact with the appellant in the first half of 1998. He also said that the appellant was usually accompanied by Rossini. Once or twice, Green saw that the appellant was carrying a gun which he described as being a black revolver with a wooden handle which had yellowish, brownish rubber bands wrapped around it. Both he and Green said that there was a period in mid-1998 when they did not see the appellant or Rossini for a while. When the pair returned, they noticed that Rossini had had his hair cut off. Both Lee and Green had received reduced sentences for drug offences which they had each committed by reason of their undertakings to give evidence on behalf of the Crown.
21 Senior Constable Luke Wise, who was attached to the Forensic Ballistics Section in the Forensic Services Group, examined the clothing of the three victims. He was able to account for four shots having been fired. One shot fired at Mr Singleton travelled through his right arm and then exited. Sooting on his clothing indicated that he had been shot at close range. That projectile was not recovered. One shot struck Mr Wright in the lower abdomen. That projectile was recovered from his body during the course of the post-mortem examination. Two shots were apparently fired at Michael Hurle. One shot entered the front upper right side of his clothing and exited at the front lower left side without causing any injury. The presence of sooting on his clothing indicated that he too was shot from close range with the muzzle of the gun being no more than 10 cm away at the time. A second shot entered the lower left side of his chest. That projectile was also recovered during the post-mortem examination.
22 The projectiles which were recovered by police were consistent with having been components of a Remington 0.22 long rifle calibre cartridge. The fact that no fired cartridge cases were found at the scene indicated to Senior Constable Wise that it was more likely that the firearm was a revolver, because the fired cartridge cases of such a firearm remain in the cylinder after each shot is discharged.
23 Although Senior Constable Wise was unable to state with certainty whether the weapon was a rifle, a sub-machine gun or a revolver, it was his opinion, based on the evidence, that it was most likely to have been a revolver.
24 Police recovered two Ericsson mobile telephones from the scene. One of them was missing its aerial. No DNA or fingerprint evidence was led in relation to these telephones. Rossini identified them as belonging to himself and the appellant respectively. Green gave evidence that the appellant and Rossini each had an Ericsson 688 mobile telephone at the time of the incident. He said that the appellant's telephone was black and that it was distinctive, in that its antenna had a silver ball on it. Ms Colbert gave evidence to similar effect and said that the telephone, which Rossini had identified as being the appellant's, looked like the one which she had seen the appellant with.
25 A considerable number of eyewitnesses to the incident were called to give evidence. It will be necessary to refer to the evidence of only some of those witnesses. Although a number of inconsistencies understandably emerged from the versions which they gave, there was a degree of consistency between them that Ronald Singleton and the man who had been in the front seat of the vehicle had become involved in an altercation. The Crown case was that that person was Rossini. Moreover, the descriptions of him provided by a considerable number of the eyewitnesses were consistent with his appearance at the time of the incident. That person will be referred hereinafter as Rossini, although he was not so identified by any of the witnesses.
26 Ronald Singleton gave evidence that he and Michael Hurle had been having an argument outside the hotel and that Adam Wright had tried to settle things between them. He saw a vehicle pull up at the lights and then heard the man in the front passenger seat yell something out. Mr Singleton replied "Pull your head in, you wog". He and that man then approached each other and began to exchange punches. As a result, the man fell back into the front seat of the vehicle. Whilst they were punching each other, Mr Singleton heard a number of gunshots in rapid succession coming from the back seat of the vehicle. Mr Singleton took hold of Rossini's legs but eventually let go of them when the vehicle drove away. It was only after the vehicle had left that he realised that he had been shot in the shoulder. He looked at Adam Wright who showed him that he had been shot in the stomach. He then saw Mr Wright walk into the hotel and collapse.
27 Suzanne Robberds saw Adam Wright join in the scuffle that Ronald Singleton was having with Rossini. She then saw another male, whom the Crown asserted was Kazzi, fighting with both Adam Wright and Michael Hurle. She saw Michael Hurle move towards the back of the vehicle. Ms Robberds then saw the person who was sitting behind the driver (whom the Crown alleged was the appellant) get out and walk towards the back of the vehicle where he and Michael Hurle began to scuffle. Punches were exchanged and then the men came together in what she described as a type of embrace. Ms Robberds then heard approximately two loud cracking sounds coming from the direction of where Michael Hurle was standing. She saw him fall to the ground, whereupon the man with whom he had been fighting kicked him in the side before running back to the vehicle. As she ran towards Michael Hurle, she heard three or four further cracking sounds. She looked back towards the hotel and saw Mr Singleton falling back towards the doors of the hotel. She then saw the man who had left the seat behind the driver standing at the vehicle with his hand in the air pointing towards the hotel. The cracking sounds which she had heard had come from where he was standing. In cross-examination, she said that the man had his hand outstretched and also said that he was holding something in his right hand. She was pretty certain that the same person had shot Michael Hurle and then Mr Singleton. She agreed that she had told police that, before the man (whom she said she thought had a gun), had began scuffling with Michael Hurle, she had seen him point in the direction of where Mr Singleton and Adam Wright were fighting. She had then heard a cracking sound.
28 Natalie Cunynghame saw Ronald Singleton approach Rossini and exchange punches. As they were fighting she saw an object, which she thought was a mobile telephone, fly across the road. She saw that Michael Hurle and Adam Wright had followed Mr Singleton over to the vehicle. She then heard a sound like a firecracker and saw a person (whom the Crown alleged was the appellant) standing at the rear passenger door behind the driver. She said that she observed that there were five people in the vehicle, but later she said that only four people left the vehicle, with the person in the middle of the back seat remaining in the vehicle. She said that she heard a total of five sounds like firecrackers and that, when she heard them, Mr Singleton and Rossini were still fighting.
29 Melinda Catchpole said that she saw five people in the vehicle, two in the front and three in the back. She saw Michael Hurle fighting with someone at the back of the vehicle. She then saw another person leave the seat behind the driver. She heard four or five bangs coming from that area. In cross-examination, she said that that person (whom the Crown alleged was the appellant) was within a few metres of Michael Hurle when what she thought was a gun was fired. The gun was in the man's right hand. The gunshots, according to Ms Catchpole, were not all aimed in the one direction, but were sprayed everywhere. She also saw the gunman move his hand in an arc motion from the back of the vehicle towards the hotel. In cross-examination, she said that, as the vehicle drove away, Mr Singleton was holding on to a person who was on the right hand side of the vehicle behind the driver.
30 Karen Smith heard at least five gunshots during the course of the fight between Ronald Singleton and Rossini. She saw that Michael Hurle was on the ground in the middle of the road, and that one of the men who had emerged from the vehicle was hitting him with a small black object. She saw only two men leave the vehicle, namely the person sitting in the rear behind the driver and the person sitting behind the front passenger's seat. The vehicle itself, she said, contained five people.
31 Stephen Pappalardo saw the initial fight between Mr Singleton and Rossini. A person who got out of the "back passenger seat" (whom the Crown alleged was Kazzi) and Adam Wright also both became involved in the fight. Pappalardo then saw a man who left the back seat behind the driver's side (whom the Crown alleged was the appellant) approach the area of the fight. He gave evidence of a total of five gunshots coming from the area of the vehicle. He saw the person who had emerged from the back seat on the driver's side attempt to re-enter the vehicle by getting into the rear passenger seat. It appeared to him that Mr Singleton grabbed the legs of both that man as well as the person who had got into the front passenger seat.
32 Rebecca Chaplin said that she saw five people in the vehicle. She saw the person from the rear passenger seat leave and commence to fight with Michael Hurle in the middle of the road. She heard a total of five or six sounds like firecrackers in all.
33 Nathan Wood's statement was tendered. He heard gunshots coming from the gutter area at the front left of the vehicle. He then saw a male person run from the roadway at the front left of the vehicle and stumble on the footpath. Wood then saw Adam Wright on the footpath throwing a punch at a person who was approaching him. He heard another gunshot and saw Adam Wright jump back, lift up his shirt and look at his belly.
34 Keiran McDonnell said that he had seen a man running from the back of the vehicle towards the back passenger's side of the vehicle and get in. As he was running, he saw the man stumble after which he heard two gunshots. His description of the person was consistent with the appellant's appearance.
35 Matthew Scott saw three men leave the vehicle. He saw the man who emerged from the rear passenger seat fighting with Ronald Singleton as a result of which each of them fell into the back seat of the vehicle. At the same time, he saw Adam Wright engaged in a fight with the person who had left the front passenger seat. As that was happening, he heard two gunshots as a result of which he saw Mr Wright's head thrust backwards. He then saw him holding his belly.
36 There was also a considerable body of evidence regarding the use and possession of mobile telephones by Rossini, the appellant and their associates. It was common ground that they were constantly changing their mobile telephones in an endeavour to conceal their illicit activities from the police. It would also appear that this group of people had access to, and would use, each other's telephones. The Crown endeavoured, by referring to call charge records in addition to other evidence, to demonstrate that the mobile telephones which were located at the scene were in the possession of Rossini and of the appellant respectively. The Crown relied in part on records, which indicated the persons to whom calls were made and from whom calls were received, to establish with whom the particular telephone was associated at the particular time.