Safarjalani v R

Principles to be applied

1. The approach to a ground of appeal under s 6(1) of the Criminal Appeal Act is well-established and uncontroversial. The task for this Court is to undertake an independent assessment of the record of the trial with a view to determining whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. In asking whether it was "open" to the jury to be satisfied beyond reasonable doubt, the question is not whether the evidence was capable of sustaining the verdict in the sense in which that question arises on a no-case submission. The question is whether, properly instructed, the jury ought to have had a reasonable doubt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113].
2. As already noted, the Crown case was circumstantial. The Crown acknowledged that a jury cannot return a verdict of guilty in such a case unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. The guilt of the accused must not only be a rational inference but the only rational inference that the circumstances would enable the jury to draw.
3. The Crown also noted the principles considered in the decision of the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 concerning the role of an intermediate appellate court when considering a ground of appeal challenging the sufficiency of the evidence to sustain the verdict in a circumstantial case. The High Court explained at [55] that the error of the Queensland Court of Appeal was to have engaged in speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. It was further noted at [48] that, subject to well-defined exceptions, the parties to a criminal trial are bound by the conduct of their counsel. It will be necessary to return to consider the application of those principles to the present case.
4. Finally, the Crown noted the requirement to assess the circumstantial case as a whole and not in a piecemeal fashion. Of necessity, the discussion of the evidence that follows deals with the several aspects of the Crown case separately but I have borne in mind the importance of assessing the collective force of that evidence as a whole.

Relationship between the applicant and the deceased

1. There was ample evidence that the applicant and the deceased were close friends. The Crown opened the case on that basis, telling the jury the two men had "known each other for many years and were close" and that they were close enough that when the deceased's father died the accused went to the funeral and "had previously helped him out in other ways such as transport to and from the hospital". The fact that the applicant attended the funeral of the deceased's father but did not attend the funeral of the deceased, notwithstanding their close friendship, was one of a number of matters relied upon by the Crown to establish a consciousness of guilt.
2. The men's friendship had commenced in about 1998. For a period of that time they had been in partnership with a third man, Jimmy, owning a café in Top Ryde shopping centre called the Gossip Café.
3. Every witness who had been in a position to observe the relationship between the applicant and the deceased supported the proposition that they were close friends. A former jockey, Scott Turner, who used to exchange betting tips with the deceased, said the deceased "spoke very highly" of the applicant. A woman named Michelina Lapa, who owned a fruit market near the Gossip Café and knew the deceased and the applicant from that time, saw them together about four or five days before the shooting and said they seemed to be getting on fine, "like two friends hanging out together".
4. A former girlfriend of the deceased, Thi Nguyen (known as "Kat") said that when she was going out with him, they would go to a coffee shop in the Italian Forum with the applicant and the third partner in the business, Jimmy. She agreed in cross-examination that she understood at the time they were running the café that the deceased and the applicant were friends.
5. The sister of the deceased, Anna Panagakos, said the deceased and the applicant were "very good friends" up until the time when they opened the café but that by the time it was sold their relationship may have deteriorated. She considered that the deceased trusted the applicant and "considered him his best friend". She confirmed that the applicant went to her father's funeral in May 2011. However, she said that the applicant did not attend the deceased's funeral and did not come to their house or contact her or her mother after the deceased died.
6. The topic of the applicant's relationship with the deceased was also addressed in a statement to police made by the applicant on 1 October 2014, which the Crown tendered as part of its case (Exhibit 35). It will be necessary to return to the contents of that statement for other purposes but it may be noted that what the applicant told police on the topic of his friendship with the deceased was consistent with the evidence of other witnesses that they had been good friends and had become "pretty close" over a period of time. The applicant said that, after the café was sold, all three partners left that area and none of them spoke very much. He said he had hardly spoken to Jimmy or the deceased since they left the café. He explained that his daughter was born a year after the café was sold and he became a stay-at-home parent. However, he had renewed contact with the deceased in early 2014. The applicant told police that he and the deceased would meet up at his place or a coffee shop and that they "spoke about general things like betting".
7. In summary, as submitted on behalf of the applicant, the evidence as to there having been a close friendship between the applicant and the deceased was all one way. While it is clear that there was significantly less contact between the two men after the sale of the café, there is no evidence of any falling out between them at any stage.

Applicant's presence at the scene of the shooting

1. As noted above, there was no dispute at the trial that the applicant was one of the two men present when the deceased was killed. The applicant had previously lied about that, primarily by saying that he could not recall where he was on the night of 4 March 2014 and that he could not remember when he had last seen the deceased. While the trial judge identified a lengthy list of such lies to the jury in the summing up (as revealing a consciousness of guilt), there is force in the applicant's submission that there was in effect just one big lie, told over and over. Ultimately, telephone records and comments made by the applicant in conversations recorded by authorised listening devices placed him at the scene and he did not maintain the lie before the jury.
2. Trial defence counsel made an opening address to the jury, as allowed under s 159 of the Criminal Procedure Act 1986 (NSW). It was the paradigm of a good defence opening, being helpful, succinct and direct. Mr Evers told the jury there would be no dispute that Mr Panagakos was shot dead by someone firing a handgun at close range into his head and that there would be no dispute that whoever did that had any intention other than to kill Mr Panagakos. He said one of the things that would be in dispute was the identity of the person who pulled the trigger of that gun. He told the jury that it would not be in dispute that the applicant saw his friend shot dead. He acknowledged that it followed that the applicant had chosen not to tell police that he saw his friend shot. The issue, said Mr Evers, was why the applicant did that and whether the Crown could prove beyond reasonable doubt that the only reason he would make that choice not to tell police what he saw was because he was somehow involved in the death of his friend. He said "if the Crown can't prove that beyond reasonable doubt then the fact that he lied becomes unimportant". He foreshadowed (correctly, in my assessment of the evidence) that although police had a listening device in the applicant's home for a number of months, the jury would not hear any conversation in which the applicant made any admission to "having killed his friend" or wanting to. Instead, the recorded conversations concerned the police investigation and the applicant's anxiety about that investigation at a time when it was clear the police were honing in on him as a suspect.
3. One further preliminary observation may be made. As already noted, apart from being described by the only eyewitness as short and a little bit fat, the other man present when the deceased was shot was not only absent from the trial but unidentified. The Crown was accordingly not in a position to adduce evidence of any conversation or dealing between the two men prior to their attendance at the location where Mr Panagakos was shot. There was not even any evidence that they arrived there together. The telephone records tended to suggest that the applicant and the deceased were together for probably around two hours before the deceased was shot, but even that is not clear. Certainly, there was no evidence as to the whereabouts of the third man during that time or indeed at any time before or after the shooting.

Witnesses who saw or heard the shooting

1. If the Crown could not prove beyond reasonable doubt that the applicant was the shooter, it had to prove beyond reasonable doubt that the shooter and the non-shooter had reached an agreement or understanding at some point before the shooting (even if only immediately before) that Mr Panagakos was to be killed. As noted in the applicant's written submissions, the Crown expressly disavowed reliance upon any extended joint criminal enterprise.
2. In theory, evidence of an agreement or understanding could come from events before, during and after the shooting. However, as already explained, there could be (and was) no evidence pointing to any agreement reached between the two men at any point before they arrived at the scene of the shooting. The moment immediately before the first shot was fired was the only possible window of evidence of any prior communication between them.
3. The fact of the shooting itself is equivocal on this issue; it says nothing about the prior knowledge or agreement of the non-shooter. There was no evidence that the non-shooter was aware the shooter was carrying a gun or had any awareness of the shooter's intentions, or that the two men were together at all for any period of time before they reached the intersection of Queen Street and Railway Street at around 11:15pm that evening, or indeed that they knew each other personally (there is some evidence in conversations recorded after the event that the applicant had information about the identity of the other man and I will return to consider that evidence).
4. The only eyewitness to the actual shooting was Mr Hardy, a long-term local resident of Petersham. The shooting took place at about 11:15pm on 4 March 2014. Mr Panagakos was found dead on the north-west corner of the intersection of Queen Street and Railway Street in Petersham. Mr Hardy lived on the southwest corner of Railway Street. He had consumed a large amount of alcohol over the course of that day (between 9 and 11 schooners of beer). At about 11:00pm he decided to walk to nearby Norton Street to get a kebab. Although his unit was on Railway Street, there was a back exit down a laneway which came out onto Queen Street. He went down that laneway using his mobile phone as a torch. He turned right onto Queen Street and began walking along the roadway.
5. Mr Hardy gave inconsistent accounts as to what he saw next. The principal inconsistency was whether or not he saw the two men other than the deceased at any point before he heard the first gunshot. As already explained, that was the only possible window of evidence of any prior communication between the two men. There was no evidence that they spoke. Accordingly, any evidence as to their manner of moving in relation to each other and the deceased was critical.
6. According to the account given by Mr Hardy when he was first spoken to by police, he was not looking at the two men at that critical moment. He was first approached by Senior Constable Matthew Tran, who gave the following evidence in the trial: "I approached the male who I now know to be Peter Hardy. Hardy appeared quite distressed. I could see water gathering in his eyes and his hands were trembling. I walked Hardy east down Queen Street away from the deceased. I said 'I need you to help me, Peter. Can you tell me what happened?' Hardy said 'I was walking in the laneway. I was only 30 metres away. I heard the gunshots. I turned around and saw two guys running towards me. They could have killed me. I was right there. They got into a black SUV. I don't know if there was anyone else in the SUV'."
7. The next police officer to speak to Mr Hardy was Detective Senior Constable Mayne. He took notes of that conversation (MFI 6). Those notes were not admitted into evidence at the trial and accordingly form no part of the present task. However, I note for completeness that they are consistent with the notes of Senior Constable Tran in recording that Mr Hardy first "heard bangs like fireworks" and then "seen two blokes coming".
8. On 5 March 2014, Mr Hardy made a written statement to police, parts of which were put to him in cross-examination. His statement included the following: "About 11:10pm on this day, I walked from the rear of my address into Queen Street Petersham. I was walking in an easterly direction along Queen Street towards the corner of Railway Street. At this time, I heard one loud bang coming from the direction of Railway Street. I heard a second bang only a few seconds after this. The two bangs sounded like loud firecrackers. I looked in the direction of the noise and saw a man falling onto the ground on the corner of Queen and Railway Street. I did not realise at the time that there were others with this man. I noticed this man because he was wearing bright clothing. I noticed that he was wearing a red shirt, and denim jeans and white tennis shoes. I heard a third loud bang only a few seconds after I noticed the man falling. The third noise seems to be a lot louder than the previous two. I also noticed a flash of light when I heard the third noise. I did not notice this flash when I heard the previous two noises. It was then that I noticed that there were two other people standing near to where I had seen the first guy."
9. It may be seen that, by all of those accounts, Mr Hardy did not claim to have seen the two men at any point before he heard the first gunshot. However, when he came to give evidence in the trial, Mr Hardy recalled the critical moment differently. He said that he was walking on Queen Street on the roadway itself. He was not looking at his mobile phone screen but he still had his phone in his hand. His evidence continued: "Q: What was the next thing that happened, please? A: I seen - I seen one - I seen - what was it? I seen two people, one walking across the road, straight across to the other side. When I was there I seen another bloke that looked like a smaller bloke. There was another bloke. This bloke had crossed over and that. Then I seen a flash, and a bang. I thought they were throwing fireworks or something. Then I seen another two flashes. Then I just seen another person running towards me then stop. They were stopped. Then I heard at the side of the cars, because it's pretty dark, you can't see nothing once you're down there, I heard a person running beside the footpath. So I just - the other bloke stopped and then started trying to get something out of his jacket and then was running straight towards me, so I just took off."
10. Mr Hardy said he went straight back up the laneway, jumping over a car on the way, and hid next to a roller door. He said he picked up a rock and was waiting. Then he heard two car doors shut and heard the car start up and it went straight past him. He then went back to see the man who had been shot.
11. In cross-examination, Mr Hardy was confronted as to the inconsistency between his statement and his evidence in the trial. After hearing the passage set out above in which he had said he did not realise that there were others with the man who got shot until he heard the third shot, he was asked whether that helped his memory about when it was that he first saw the two other men that were in the same street as the deceased. He said "doesn't help me that much because it keeps playing the same in me mind, so." He accepted that it was possible that his memory had changed over the last four years.
12. In his evidence-in-chief, Mr Hardy also said that immediately before the first shot the two other men had "split up". The Crown relies on that evidence to support the conclusion that the two men in effect surrounded the deceased and that one of them "went behind [the deceased] and shot him".
13. The Crown called three further witnesses (Nathan Ives, Marieka Walsh and Tyne Holmes) all of whom lived on either Queen Street or Parramatta Road and were at home when the shooting occurred. The Crown did not place particular reliance on their evidence. Each gave evidence to the effect that they heard a number of loud bangs and then shortly after saw a car travelling west along Queen Street. They all said the car was black but otherwise described it in generic terms such as "four-wheel drive" or "SUV". It will be necessary to return to consider another aspect of the evidence of Tyne Holmes. The Crown called a fourth witness (Callen Robinson) who was working at his business on Parramatta Road at the time of the shooting, but he did not see or hear anything of significance.
14. At the trial, the Crown hypothesised that a black Toyota Kluger with registration CQP01L was the getaway car seen by the eyewitnesses and sought to show that the applicant could be linked to that particular car. That hypothesis rested on evidence which showed that the applicant borrowed cars from time to time from his friend Gazi Zreika including the black Kluger. The Crown tendered evidence from road cameras and Mobile Automated Number Plate Recognition Systems which showed the Kluger's movements on the day of the shooting. The Kluger's movement coincided with the applicant's mobile phone records and cell tower data on the day of the shooting. That evidence may have supported the admitted fact that the applicant was at the scene of the shooting. However, as to whether there was any prior agreement between the shooter and the non-shooter, it was entirely equivocal. Even if it proved the two men sped away from the scene together in the black Kluger, the evidence was equivocal as to prior agreement, although I accept it would prove they were known to each other. Once the deceased had been shot and was obviously fatally wounded, fleeing from the scene could be explained by reasons other than guilt of being the shooter (I note that the Crown did not identify flight as one of the matters relied upon to establish a consciousness of guilt).
15. However, it is necessary to give closer attention to the evidence of Tyne Holmes. He said: "I saw what I remember to be a black SUV, with one man standing next to it on the footpath, looking in the window. And then I heard some yelling, sounded like frustrated yelling. I couldn't make out any words. And then I saw one man run, what would have been west, down Queen Street and disappear. And then shortly after that, the car pulled out and disappeared up over the hill."
16. The applicant submitted in the appeal that Mr Holmes had seen the applicant remonstrating with the man who shot the deceased and then fleeing the scene on foot (which would point against a joint criminal enterprise). The Crown submitted that the man Mr Holmes saw run down Queen Street might have been Mr Hardy. That can be accepted. However, that does not detract from the evidence about "frustrated yelling".
17. The Crown noted that Mr Holmes' evidence was not relied upon in that way at the trial. It was submitted that this was not surprising as "the applicant's contention was that he was scared of whomever (sic) shot the deceased". No citation was provided to support that assertion and it is not my understanding of the evidence. Certainly, the applicant repeatedly said that he would be scared of the consequences of telling police who the shooter was (because of the recrimination that would follow if that person was then targeted by police). That fear is readily understood; the dangers of assisting police and so being labelled "a dog" are well-known in the criminal justice system. However, the applicant has not at any point said he was scared of the shooter on the night because he has never given any account of being with the shooter on the night. There is nothing illogical or inconsistent in the proposition that the applicant might have been furious with a person who unexpectedly shot his friend (especially if the applicant was there to resolve a dispute) but later be fearful of the ramifications of having witnessed that event and being in a position to identify the shooter.
18. In oral submissions in the appeal, the Crown reminded the Court that the task in an appeal of this nature does not permit speculation as to some new hypothesis not put forward at the trial, citing the decision of the High Court in Baden-Clay. In my view, however, the evidence of "frustrated yelling" and the hypothesis that it was remonstration is entirely consistent with the defence run at trial, which was that although the applicant was at the scene of the murder, he had nothing to do with it. The decision in Baden-Clay does not preclude the applicant's counsel on appeal from pointing to additional features of the evidence that are consistent with and support the defence conducted at trial.

Statements made by the applicant after the shooting

1. On 25 September 2014, two detectives went to the applicant's parents' house. He was not there. They asked a family member to ask him to contact them, leaving a card with their contact details.
2. Unbeknownst to the applicant, listening devices had been installed in his home at that time which were recording conversations between him and his wife. The applicant told his wife that police had come that day (presumably a reference to the detectives who went to his mother's place). His wife asked "have you got any hunches on what they could have?" The applicant responded that he did not know but that he would ask his solicitor to call police to find out.
3. On 30 September 2014, the applicant and his wife had a further conversation apparently in anticipation of his attending a police station to give a statement. In this conversation, the applicant's wife appears to be saying she couldn't understand why he had not previously made a statement to police because it just drew suspicion. As with most of the conversations recorded during this time, it is otherwise difficult to be confident as to precisely what they are discussing, for a number of reasons. Although there is no suggestion that they knew their conversations were being recorded by police, they often whisper at critical points in the conversation. They also often talk over each other. Further, much of their conversation is based on assumed knowledge not available to the reader of the transcript.
4. On 1 October 2014, the applicant gave his first written statement to police. The main topic was the applicant's prior relationship with the deceased when they were running the café business. In that statement, the applicant lied as to when he had last seen the deceased: "I can't recall exactly the last time I saw Billy as I was seeing him a few times throughout January and February 2014. We would meet up at my place at Lidcombe or a coffee shop."
5. After a description of the deceased's betting habits, the statement concluded with a further lie: "I learnt that Bill got shot when I was reading the newspaper, I think I was at a coffee shop near my place in Lidcombe. I believe that Bill was killed because it might have something to do with money. Bill was a big gambler everywhere and anywhere. I have never seen Billy have a fight or make trouble. He was a good bloke and everyone liked him. Billy could make money if he had to through gambling."
6. That evening, in a conversation recorded by the listening device at the applicant's home, the applicant told his wife that he had been to the police station that day and that the police officer had later called him and asked him to come back to the station because there was one more question he forgot to ask, which was where they were that day or that night. The conversation continued: "Wife: [whispers] what are you gonna say? Appt: Fuck I don't remember. How am I supposed to remember that day anyway maybe I was with him maybe I wasn't maybe I spoke to him or not I don't know Wife: Mm, you can't say that."
7. The conversation continued but much of it was whispered and is recorded in the transcript as "indecipherable". It appears to have concluded with the applicant telling his wife that he would say "I don't remember what I did then, maybe I was with my daughter, maybe I…" The applicant also referred in that conversation to the possibility that he might be charged.
8. The applicant duly went to police to give a second statement that night, as requested. In that statement, he lied as to his whereabouts on the night of his friend's murder. He said: "On 4 March 2014 I can't recall what I was doing or who I was with. Most of the time I am at home at [address] at my parents' house and I expect I would have been home with my daughter. Bill didn't ever speak to me about going to Petersham. I don't normally go to Petersham and I haven't ever been to Petersham with Bill and I don't know anyone who he would know there."
9. On 9 October 2014, in a further conversation recorded by the listening device, the applicant's wife was apparently telling him that police had come and spoken to her. She described the conversation, which was mainly about whether she knew Billy (the deceased), what he was like, whether there was any hostility between the partners and so on. The applicant asked her a number of questions beginning "did they say anything about my…" but it seems the device did not pick up the end of the questions or the answers (I note that, while the recordings were provided to this Court and the Crown noted that it would be open to the Court to listen, we were not taken to any part of the recordings during the hearing).
10. On 27 November 2014 police attended the applicant's flat at 7:46am. The conversation was recorded by one of the listening devices. The applicant was informed that one of the other detectives on the case was on leave but that he had asked them to obtain an extra statement from the applicant. The discussion that followed related mainly to the applicant's stress over the fact that he had been seeing two women (his wife and another). He had spoken to his wife about this infidelity and was evidently in a state of some distress. The detectives pressed him, pointing out how important the murder investigation was ("we're not knocking on your door for a stolen car"). During his response the applicant described his state of mind at that moment, saying he had no more emotion. He began crying and said "and I want to seek revenge but I haven't got the balls to seek revenge. I haven't got balls to seek revenge."
11. The detective pressed him as to whether, in saying that, he meant that he had an idea who had "done it". The applicant responded (crying) "I did all my investigation I have my theories I know but I'm too scared, I really am …[ind]… power you don't understand …[ind]… too powerful an organisation … [ind]… I'm fucked."
12. He was asked whether he wanted to tell police who he thought had "done it". He responded, still crying, "no I can't, my mind's all over the place, that's the honest truth."
13. He then indicated that he had to take his daughter somewhere.
14. The detectives persisted nevertheless. What followed was something of an incoherent rant in which the applicant focused mainly on his stress over his infidelity to his wife and his assertion that the other woman had in effect started stalking him.
15. On 29 November 2014, the applicant had a conversation with his wife, recorded by one of the listening devices, in which they discussed how he should deal with the police. This is an important conversation and I have studied the transcript carefully. It begins with the applicant saying that he is going to speak to police. His wife questions what that is going to achieve. She says "do you think it's going to achieve anything…or is it just something you want to get off your chest?" He says "that's right, exactly right". However, so far as can be discerned, he does not appear to be referring to making a confession to murder.
16. The conversation continues with him apparently imagining the conversation with police: "Appt: That's …[ind]… you're gonna lock me up, charge me? Go for it. Because that's your side of events, your your story, is your story, you're assuming, you've painted it, you know what I mean? Regardless of what I say, you really don't want to care, you want a conviction, you want the case closed. Wife: Yeah. Appt: Right or wrong you want the case closed. So if I'm thinking, if the picture that he paints and you can put me involved in it, then uffft what can I possibly do. Unless I open up and I tell them exactly what I remember what happened. Or I'm gonna keep my mouth shut, then I'm gonna have to …[ind]… the police [clears throat] And look like I've done it …[ind]… gonna find me guilty. That's …[ind]…"
17. The conversation is important because it comes at a turning point. In earlier conversations the applicant seems confident with his approach of simply denying that he was present at the scene of the shooting. In this conversation he openly discusses with his wife whether he should instead tell them "what happened". Significantly, he is talking about telling them not what he did, but what he knows. On a close reading of the transcript, he appears to be discussing the difficult position he is in having lied about not being at the scene of the offence and wondering whether the police have been told otherwise. He appears to be describing what the police might have against him as "a painting" or "assumptions" and says "like even if they say that cause my lawyer could argue …[ind]… cause he could argue that well hold on yeah I'll tell you who was there". He is describing a dilemma. He can either remain silent and therefore look like he has "done it" or tell police what he knows, which he cannot do without revealing he previously lied. His wife says "so they know you lied?" to which he responds "Nah well yeah that's why …[ind]... yeah you know what I mean?"
18. The applicant then expresses a concern about what the police brief might contain. He seems to have a concern as to what police might have been told by a female (possibly the woman with whom he had an affair): "By law any information that they have and I get arrested, must come out. But now …[ind]… I get arrested, just say that your family read the brief, they're gonna know. Cause God knows what she said. She says I'm crazy and obsessed with her. So now they've got that, like this …[ind]… Now worst case scenario now you have to …"
19. He then starts talking about a male person, saying "but because it was he didn't mean to because …[ind]… because he was angry and he wasn't thinking straight. That's why, that's what happens when…"
20. To this his wife responds "Can't he say that? Up in the stand?" It is clear enough that they are talking about something done by someone other than the applicant. I cannot make sense of parts of the conversation that follow but they include the following comments by the applicant: "they never questioned none of his family" and "…none of his close friends, who do they speak to? Everyone associated with me".
21. The Crown placed emphasis on a portion of the next part of the conversation. I will set the relevant passage out in full: "Appt: Yeah what can I do, what can I do Janeem [his name for his wife]? Wife: True well like what I said play your cards right cause you don't know what's gonna happen. Appt: Yeah I know that's what I'm saying that's what I'm saying like that's why hopefully things go good. I hope. Wife: (over talk) Things will because … Appt: (over talk) Yeah but that's right. That's what I'm saying I don't know. Wife: Because, yeah you've done wrong, but I can't see. Or I'm hoping you don't get punished to that extent, because even in your wrong there was a right. In the wrong thing you did, your intentions, somehow and someway shape or form were right."
22. The Crown relied on the applicant's wife's remark that the applicant had "done wrong" as some indication of guilt. However, in my assessment, the burden of the entire conversation is that, if the applicant could tell the truth, it would improve his position so long as he was believed, which he clearly knew he might not be. They had a further conversation about the fact that a female (again apparently referring to the woman with whom the applicant had an affair) had told the applicant he is "gonna have to confront a judge". They discuss whether she was referring to Allah or "the judge". His wife then says "well it's obviously bad" to which he responds: "…[ind]… don't think that bad. This is the honest truth, (whispers) I don't think I'm gonna go to gaol forever, I really think, that they'll look over it …[ind]… gonna go to court. And this is what I feel, that …[ind]… or that I'll be set free and everything comes out and I'll be a free man …[ind]… that's what I think, that's what I see, that's what I feel."
23. They then have a discussion which the Crown also relies on as an admission in which the applicant's wife raises the prospect of someone sending someone else to take the blame (presumably, for the applicant). She says to the applicant "If you're a key player…You're clearly a key player…Someone you can trust right? So why would they get rid of an asset, when they can [pay someone to take the blame]". The Crown relied on the applicant's acceptance that he was "a key player" as an admission that supports the conviction. However, in my assessment, it is more likely that they were talking about the applicant being a key player in some other enterprise (probably, dealing with prohibited drugs).
24. While the conversation is difficult to follow, the applicant appears to be explaining to his wife that the person they are talking about (whose accent he imitates) would not help the applicant ("he doesn't care, I wouldn't care why would I care I'm not in the country … I'll go wash my hands …"). He refers to the fact that "there were five people" and "there's two left". That sounds like a reference to a drug syndicate rather than a discussion of the murder, although plainly they might be related. He later says, "Okay listen to this, okay they're not gonna give a fuck they're not gonna help you …[ind]… you no longer exist". I am not persuaded that the applicant's apparent acceptance that he was a "key player" should be understood as an admission to being a key player in the murder. At best, it is equivocal. It could well be a recognition that he was a key player in a drug syndicate who may now be dispensable because he is caught up in the murder. I do not mean to engage in impermissible speculation; I am simply pointing out that there is a plausible hypothesis that explains an unclear admission relied upon by the Crown in a way that deprives it of its inculpatory force.
25. The next series of exchanges is unclear. The applicant appears to be saying that the man they are talking about knows that the applicant knows "the person". He continues "and if I was …[ind]… or anyone was in …[ind]… cut that meat and get rid of it and bury it deep down". The suggestion seems to be that the applicant thinks there is a risk that, if he asked the person (whoever they are talking about) to send someone else to take the blame for the murder, the result would be that someone would decide to get rid of the applicant ("cut that meat and get rid of it and bury it deep down"). I accept that the discussion is capable of incriminating the applicant for the murder. He could be referring to the prospect of someone paying someone to take the blame for a murder he himself committed. However, that interpretation runs against the tide of the rest of the conversation, which suggests rather that he is at risk of being gotten rid of because he knows about the murder.
26. In response to the prospect that someone might want to "cut that meat and get rid of it and bury it deep down", the applicant's wife says: "Mm. I don't want to say I told you so but I dunno know if you remember my discussion with you when you told me, and I said "if he was that loyal and they did that to him what makes you think they're …[ind]…"
27. The applicant responds "that's right I know". Here, the suggestion seems to be that, if they got rid of Billy (or some other person considered to be "that loyal"), they would not hesitate to get rid of the applicant.
28. Importantly, while the conversation is difficult to follow, it contains nothing that has the semblance of an admission that the applicant shot the deceased or knew the deceased was going to be shot or was part of any agreement to get rid of the deceased. I appreciate that there is a measure of speculation here because of the difficulties in understanding the conversations, for the reasons I have already explained. Those difficulties operate to undermine rather than to reinforce the Crown case. The short point is that the overwhelming impression one gets from reading the listening device transcripts is that the applicant's principal concern at that time was to work out a way to tell police who murdered Billy without giving away the lies the applicant had told about not remembering when he last saw Billy or where he was on the night of the murder, which he appreciated would look bad for him. It must be recalled that, although by the time of the trial the applicant was no longer disputing that he was present when the deceased was shot, at the time of this conversation he was still maintaining the lie and that appears to have been his primary focus.
29. On 1 December 2014, the listening device recorded a short conversation between the applicant and his wife in which he is preparing to speak to police. In the appeal, the Crown relies on an alleged admission made by the applicant during that conversation when he said to his wife "if I go down, I don't want youse to come and see me, that's the honest truth leave me alone". However, that single statement cannot be considered shorn of the context of the lengthy conversation between the applicant and his wife two days earlier, the significance of which I have already explained. When that material is analysed carefully, it can be seen that fear of being charged with the murder (and potentially "going down" for that offence) cannot be equated with an acknowledgment of guilt of the murder. His concern was that, without the full story (which he was not prepared to tell), police would proceed to charge him, relying on his lies.
30. Later that day, the applicant participated in an electronically recorded interview ('ERISP'). It was a lengthy interview but did not take the investigation much further. The applicant repeatedly made statements to the effect that he had done nothing wrong and that he had information but could not talk at that time ("now is not the time"). He spoke in that context about a person known to him who had become a Crown witness in a high-profile trial, about the concerns he had about that person and about the conversations he had had with the person and the problems that the decision to give evidence for the Crown had caused for the person's family.
31. In that interview the applicant did not positively deny being present at the scene of the shooting. He hinted that he may provide that information to police in the future. At question 345 there was the following exchange: "Q: Do you remember where you were on the 4th of March? A: Don't want to talk. Don't want to say nothing, I'm sorry. I understand you're investigating everything, but I just can't, I really can't, not now. That's the honest truth. I'm not sayin' I'm not goin' to talk but I can't talk now. That's the honest truth. Take my passport, do whatever you want, put me in gaol, I just can't talk now. Now is not the time. You know, there's always a time for something but now is not the time and that's the honest truth. That's the honest truth. Do I have information? Yes, but I can't talk now at the moment."
32. On 10 December 2014, the applicant contacted police and said he wanted to speak to them again. As a result of that request, on 15 December 2014, he participated in a second ERISP. The transcript records that he had arrived at the interview armed with some pieces of paper with some notes and names and addresses he wanted to give police.
33. When asked to go through the information he wanted to give police, the applicant launched into a lengthy account of his understanding of "the death of Billy". He said that Billy "stole 254 kilos of pseudo" (later described as pseudoephedrine, a precursor for methylamphetamine). The "pseudo" belonged to a man named Wang Shen or Wangy Shen who was an associate or friend of the deceased. It had been stored at a house at a nominated address in Berala connected to Wang. The applicant described collecting the deceased a number of times from the property in Casula where "Peter the Serb" was living and where drugs were being "cooked". He said that a number of times when he collected the deceased from that property the deceased produced ice which he had made from pseudoephedrine. The applicant told police that the deceased feared for his life from Wang.
34. The basis for his fear was that (unsurprisingly) there was a dispute between the deceased and Wang concerning the stolen pseudoephedrine. The deceased had approached the applicant to help "fix the situation" with Wang. The applicant went with the deceased to Wang's restaurant to negotiate for the deceased either to return the pseudoephedrine or to pay for it in instalments. The applicant said to police "that was my job 'cause I haven't seen Billy for a long time so he's come back to me because he trusted me and wanted me to help him and fix the situation".
35. The applicant also described the steps he said he had taken after the deceased's death to find Wang. The applicant concluded this lengthy narrative with the following: "Who killed Billy? I don't know. I really don't know. That's the honest truth."
36. The applicant continued: "if I knew, yes, I was there or not, doesn't make a difference, but I really don't know who killed Billy". He refused to tell police whether he was there when the deceased was killed, insisting that it would not make a difference because he did not know who the killer was.
37. The interviewer pressed the applicant as to how he knew the deceased had stolen the pseudoephedrine. He said because Billy had told him. The interview continued: "Q91: And when was that? A: I'm not sure of the date, you can see I haven't spoken to him for a long time and he called me, that would've been, I was at home in North Parramatta, in Northmead, I was looking after my daughter. I'm not sure of the date, the phone calls or the phone, or phone thing will tell me. He rang me up, he goes, Are you at Parramatta? Are you still living there? And I go, Yes I am. He goes, Oh, I'll see you in 5 minutes. So 5 minutes later he comes in and Billy was a mess, he was high because he was cooking, he told me, and his clothes was dirty. And he was sitting there, he was talking to me. And then after 5 minutes he realised that I have a daughter in front of me which he didn't even know I had a daughter, he looks, he's, he goes, Where she'd come from? I go, That's my daughter. I go, Mate, go, What's wrong with you? Why you on the drugs? He goes, I need to talk to you. I go, Yeah, no problem, come outside. And my daughter was asleep and outside he goes, This is the problem. Q92: And what did he say … (indistinct) A: And he goes to me, I've got 254 kilos of raw Pseudo. He was really excited, he was obsessed and fascinated by this new Pseudo because now he's got a product which has got no, no jump, no nothing, no blocker, no nothing, so when you do cook this you're gonna get 90 to 93 percent of pure liquid, which you're gonna get dynamite, strong, potent Ice. Most Ice or whatever, or … Q93: So what, what did he say to you about it? A: No, he goes, well he's got it … Q94: Yeah. A: … and he doesn't wanna give it back to Wang. Q95: Did he tell you where he got it from? A: Yes, he said from Wang. Q96: And … A: Not from him but he's taken it from the property which Wang was holding."
38. The interview process (with interruptions) went for four hours. The applicant answered many questions about his involvement in the dispute between the deceased and Wang concerning the stolen drugs. The Crown in his submissions noted a number of inconsistencies and anomalies in statements made by the applicant at different times concerning the dispute about the stolen pseudoephedrine. However, it is important not to reverse the onus here. The applicant did not have to establish that the things he said about the deceased's dispute with Mr Wang were true, or even particularly persuasive. The onus was on the Crown to exclude any reasonable inference consistent with innocence. That said, there was nothing inherently implausible about the proposition that the deceased had become embroiled in a dispute over stolen drugs and was shot for that reason. The criminal law reports are full of such tales.
39. The Crown relied on the applicant's position in that interview as to whether he was present when the deceased was shot ("Maybe, maybe not") and his statements to the effect that he could not recall where he was that night as further lies. The trial judge directed the jury on that basis.
40. On 24 December 2014, in a conversation with his wife recorded by the listening device the applicant told her what he had told police. He said he had told them that what he was going to tell them was the truth and that it was up to them to believe him or not. His wife asked a question which seemed to be directed to confirming that he had not told anyone else that he had gone to police to make a statement. He made a reference to his brother which does not quite make sense as recorded but which seems to suggest he was saying his brother knew he had gone to police because he picked him or someone else up afterwards.
41. The applicant was not arrested and charged with the murder until over two years later, on 22 February 2017. It appears in the meantime they were investigating some of the matters the applicant told them in the second ERISP. Following the applicant's arrest, police obtained a warrant for a listening device at Long Bay gaol which was used to record a conversation between the applicant and a woman named Eileen. It appears to be common ground that she is the woman with whom he had an affair.
42. The Crown relied on the content of this conversation to support the contention that the applicant was the shooter. That submission was based on the following statement made by the applicant during the conversation: "It's not a pretty sight to see something like that ah, when you see someone's face ripped apart and their brain's and their head's splattered, is not a pretty sight".
43. The Crown submitted that the fact that the applicant was close enough to the deceased to see the wounds to the deceased's face made it more likely that he was the shooter.
44. A consideration of the whole of the conversation recorded that day rebuts that inference. The conversation begins with the applicant asking Eileen if she knows that the police have charged him with the murder. He explains that the reason they charged him was that they were going to prove that he was lying. He says "this is I why I'm charged with the murder cause I did not tell them if I was there or I wasn't there, that night, my phone was in the area, they wanna know were you there or weren't you there. I said to them from day one doesn't matter if I was there or wasn't there."
45. He then describes to Eileen his conversation with police at the time of his arrest. It is appropriate to set out the relevant passage in full: "Appt: I go yeah I go so does that mean I shot the bloke. I go if youse are saying there's two people there I've been charged, I go how can you prove that I killed the bloke. You know I always said I always denied my innocence (sic) I always said I got nothing to do with it, I go I know what happened and what was the issue was about which I told you, I told youse whose was …[ind]... Now just got to wait and see. Appt: …[ind]... ah no, so when the police charged me, I went to the police station the door opens up, and like five or six police officers coming out and I look and I knew it was them the homicide squad. And I looked like that and I go am I under arrest yeah yeah you're under arrest for the murder I go yeah no problem, they go are you gonna tell us who did it? I go you charged me for murder I got nothing to say. Elaine: And they're asking you who did it yet they're charging you. Appt: Cause they want me to talk, you know what I mean? They want me to talk. Elaine: So why don't you just talk and get it over and done with? Because that's all they want, you know that's all they want. Appt: Yeah I know I know I know I know I know, this is, cause now we're trying to sort it out. If you talk a lot of people's lives are at risk a lot ah. Elaine: So you're gonna put your life Appt We'll work it out, I'll work it out, I'll work it out, I'll work it out, um. I'll work it out anyway ah. Yeah. Elaine: Cause you've got people making up lies just to protect themselves and here you are not talking to protect everyone else. Appt: Mm. So and they know they know. Eliane: Of course they know. Appt: But they just want me to talk and …[ind]... So, oh like you know, I went I went like, I wasn't, and when the lawyer came and told me the guy who's arresting you he's turned the story around, he's going all against you mate."
46. The detective who arrested the applicant denied that he or any other police officer present said "are you gonna tell us who did it?" He also denied that he had ever said anything to the applicant about taking him to a "secret location". The applicant may well have been embellishing in that respect.
47. However, the applicant's statement that "If you talk a lot of people's lives are at risk" is consistent with his defence that he was not the shooter but was not telling police who the shooter was because he was fearful of the consequences of assisting police and becoming a Crown witness.
48. The applicant then gives Eileen a lengthy explanation of his understanding of the process for him to give evidence as to "who did it". He says he had to wait until they arrested him before he could make a statement ("I can't talk until they charge me, now they have. So now the ball's rolling so it could take, maybe five or six months, hopefully …[ind]… I should be out.")
49. In the passage immediately preceding the admission about seeing the deceased's wounds, the applicant asserts that he said to police "do you understand now why I have a psychological problem?" He claimed to have told police "the facts are right there in front of you". He later refers to his understanding that the process would be that he would be "taken into a secret location."
50. In circumstances where, bowing to the strength of the Crown case on this issue, the applicant no longer disputes that he was present when the deceased was shot, it is easy to be sceptical about a claim that, although he was innocent, he lied about his whereabouts because he was fearful of the consequences of telling the truth. Certainly, it is a claim that warrants close scrutiny. The listening device material is important for that reason, particularly the conversation with Eileen.
51. Before explaining my analysis of that conversation, however, it is important to note that, assuming the applicant is to be accepted, the risk he perceived was real. If he found himself without forewarning witnessing the murder of his friend at the hands of a gunman at the direction of a presumed drug baron, there is nothing inherently implausible in the proposition that he would be in fear of his life if he assisted police. In R v Qaumi & Ors (AVL) [2015] NSWSC 1711, Hamill J described the risk of violence to informant witnesses as a "notorious fact": at [16]. His Honour was not prepared in that case to accept, as urged by counsel for the accused (opposing an application for special measures in the manner of giving evidence), that such witnesses can be expected to grow old in the suburbs with "their mortgages and their ungrateful children": at [15].
52. Returning to the content of the conversation with Eileen at the gaol, there is no suggestion that the applicant thought he was being recorded at that time. In a conversation recorded at the gaol two days later, he and his wife (obviously having found out by then that there were listening devices in their home) discuss the likely content of the recordings of their conversations. The applicant would hardly do that if he thought he was being recorded at the gaol.
53. There is not a single reference in the conversation with Eileen, or indeed any of the conversations between the applicant and his wife, to the applicant having shot his friend, or brought a gun to the meeting, or fired a gun, or disposed of a gun. There is no attempt to explain or justify a decision to get rid of the deceased. There is no reference to any discussion or agreement with any other person about a decision to get rid of the deceased. The context in which the applicant describes seeing the deceased's wounds is that he is explaining his "psychological problem". He refers to what he saw, not what he did. It is not the language of an admission. The main topic of the conversation is the applicant's explanation of the process for giving evidence for the Crown; why he had to wait until the right time to tell police who the shooter was and how he has struggled with the knowledge he has. Of course that might all have been an elaborate lie for Eileen's benefit but it doesn't read that way.
54. Finally, there was evidence from Detective Sergeant Maree, who confirmed in cross-examination that, after the applicant's conversation with Eileen on 17 March 2017 when he was in custody, the detective was contacted by the then solicitor for the applicant who told him that the applicant wanted to speak with police again. Detective Maree and Officer Tearne went to the gaol at Long Bay to speak to the applicant but the applicant said he did not want to speak to police anymore. Detective Maree agreed in cross-examination that persons seen speaking to police whilst in custody are placed at risk. However, he said "we weren't identified as police when we visited that day". He may have overestimated his capacity not to look like a detective. He agreed that witnesses who go into the witness protection program are given a new identity and placed in a location which is "secret", as the applicant had told Eileen he expected would happen in his case.

Other circumstances

1. The applicant's description of the deceased's involvement in the manufacture of prohibited drugs in the months leading up to his murder and his dispute with Wang found some objective support in the evidence. Further, as submitted on behalf of the applicant, none of his claims was shown to be untrue.
2. The Crown called a witness named Vaso Davidovic who was living in Casula in early 2014. He gave evidence that the deceased and his girlfriend, who spoke Chinese, would frequently visit Mr Davidovic and his wife, who is also Chinese, during that time. In cross-examination, Mr Davidovic agreed that the deceased came to the flat "many times" in February because another friend of Mr Davidovic, "fat George", was often there as well and the deceased liked him. Mr Davidovic said that "fat George" went back to Serbia, probably a few months after the deceased was killed. He was still in Serbia as at the date of the trial in September 2018.
3. Mr Davidovic said that he and his family left the flat on 21 February 2014 to visit his wife's family in China. It was put to him that, while he was away, he let the deceased use the flat "so that he could set up a little lab". Mr Davidovic denied that. He denied that the deceased and a Lebanese person who went by the nickname "the Tank" were using the premises to manufacture methylamphetamine. However, he also said he had "no idea" what they did when he went to China. When Mr Davidovic left for China, the deceased dropped them at the airport and kept Mr Davidovic's van. Mr Davidovic said that was because the deceased was going to get it serviced for him while he was away.
4. Detective Sergeant Maree identified a man named Wang. The Detective gave evidence in cross-examination that telephone records showed this man had been in contact with the deceased at various points throughout the 12 months before his death importantly including a number of occasions in late February. Detective Maree also accepted on the strength of the call charge records that the deceased had spent a considerable amount of time in Casula in the weeks leading up to his death including a period of four hours on the day of his death. Detective Maree also checked the applicant's claim that Wang had once committed a double murder (which was part of the reason the deceased was fearful of him). The detective confirmed that he had found a record of Zhen Wang being convicted of a double murder in Parramatta in the 1990s.
5. There was also evidence that corroborated the applicant's account of the pseudoephedrine having been stolen from an address in Berala. Detective Maree gave evidence of a statement obtained from a neighbour at the address nominated by the applicant which, when compared with what the applicant told police in the ERISP on 15 December 2014 about what the deceased had told him, stands up with his account.
6. Defence counsel at trial, Mr Evers, invited the jury to infer that the deceased was cooking drugs at the flat in Casula in the weeks leading up to the murder. In the appeal, the applicant submitted that this inference was "irresistible" having regard to the matters summarised above. I would accept that the inference is at least strong. Importantly, it provides support for a hypothesis which is consistent with the innocence of the applicant and is more than speculative.

Conclusion

1. My assessment of the evidence has left me with a significant doubt as to whether there was at any point in time before the shooter killed the deceased an agreement or understanding that he would be shot or killed. There is no evidence as to whether the two men arrived together at the intersection where the deceased was shot. There is Mr Hardy's description of the two men "splitting up" just before the deceased was shot but that description is inconsistent with what Mr Hardy said at the scene on the night, which was that he did not see the two men until after he had heard a shot. For that reason, the reliability of that description may be doubted. Even if it is accepted, it is scant evidence of an agreement to kill. The evidence of Mr Holmes suggests the possibility that one of the men remonstrated with the other after the shooting and before they left the scene, which suggests that the remonstrator was not expecting the deceased to be shot and militates against an inference that there was any prior agreement. The accused's conduct after the event in fleeing from the scene, disposing of his phone, not attending his long-time friend's funeral and telling a series of lies to police is capable of establishing a consciousness of guilt of murder but equally capable of being understood differently, as the reaction of a person who feared being blamed for something he had not done. That is particularly so where, as the Crown accepted in his written submissions, there were aspects of the evidence suggesting both men were, to say the least, "involved in a criminal milieu". The Crown relied on that evidence to support an inference that the murder was an execution style killing involving both men at the scene. However, it is equally capable of supporting a hypothesis inconsistent with guilt of murder, namely, that the applicant did not know his friend was going to be shot until it happened. It seems likely that he knew there was to be a confrontation, perhaps over a quantity of stolen pseudoephedrine, but that is not enough to establish a joint criminal enterprise.
2. I am mindful of the importance of paying due regard to the constitutional role of the jury as the primary tribunal of fact. I am also mindful of the fact that the jury had the advantage of sitting through all of the evidence at the trial whereas I have only read it. That said, a substantial source of my doubt is the content of the conversations between the applicant and his wife recorded by the listening devices and also the conversation between the applicant and Eileen. The Court is as well-placed as the jury to pore over that material. Further, experience tells that jurors can be unforgiving of lies. In the present case, it was necessary to analyse the precise content of the lies and the reasons for them with some care.
3. For those reasons, I am satisfied that ground 1 is made out. I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the conviction and sentence and substitute a verdict of acquittal.
4. BELLEW J: I have had the advantage of reading, in draft, the judgment of McCallum JA. Having undertaken a review of the evidence, I agree with the orders proposed by her Honour, and with her Honour's reasons for those orders.
5. WRIGHT J: I have had the advantage of reading McCallum JA's judgment in draft and agree with her Honour's analysis and reasons as well as the orders proposed. I have also formed my own independent view, having regard to the evidence as a whole, that this was a case in which the jury must have entertained a reasonable doubt as to the applicant's guilt.

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: 18 December 2020