Jamie Saliba and Troy Cusens each make an application for a certificate to be issued pursuant to s. 2 Costs in Criminal Cases Act, 1967 (hereafter to be referred to as "the Act") as a consequence of their respective acquittals on 9 May 2017 on 2 counts. Count 1 was an allegation of discharging a firearm with intent to cause grievous bodily harm on 7 July 2014 at Minchinbury. Count 2 alleged against both men that they (with others) "participated in a criminal group…contributing to the occurrence of criminal activity" on the same date at the same place. The counts are connected to the same event; the shooting and beating of Rishaard Christian. The applicants and Mr Christian were members of various chapters of the Rebels Motorcycle Club, particularly Penrith and Mt Druitt Chapters. Other accused were members of these chapters and the Windsor chapter of the club.
The applicants were arraigned on 29 March 2017 with Eldin Mujuevic and Chris Rymer who were also jointly charged with the same offences. Another person, Timothy Rolfe, was granted a separate trial in the course of various pre-trial applications.
The Court has been favoured with written submissions from the Crown and the applicants as well as oral submissions. Mr Saliba sought to rely upon additional evidence pursuant to s.3A of the Act, contained within an affidavit from his solicitor sworn, 11 July 2017, annexing various documents relating to the police investigation, arrest and charging of Rishaad Christian on 16 May 2017 in respect of 55 charges of personal violence, dishonesty, drug supply and possession, firearm possession and other matters.
Whilst the investigation of these matters was occurring during the trial of the applicants, including during the time Mr Christian was giving evidence in the subject trial, there is no evidence that the Director of Public Prosecutions, his staff, or the Crown Prosecutor, were aware of the ongoing investigation up until the acquittal of the applicants. There is no evidence that any police officer involved in the trial was aware of the investigation during the trial. As the investigation was ongoing and not completed there was no basis upon which the Commissioner of Police could be expected to produce material in reply to any subpoenae issued up until the time Mr Christian gave evidence. In submission it was not suggested that he could. Whilst I have received the evidence, it is in my view irrelevant to the applications, although the alleged conduct is said to have occurred from late 2015 until late February 2017.
The Director of Public Prosecutions could not have reasonably known of the detail of these matters at any time before 16 May 2017 a week after the verdicts. As it is they are still allegations, so far as I am aware, currently before the courts. The evidence could not have been "adduced" in the proceedings.
If the allegations are true they show Mr Christian to be a very violent, disreputable person. But he eloquently portrayed himself to be this way by the evidence he gave in any event.
Relevant legislation and principles to be applied
The Costs in Criminal Cases Act, 1967, relevantly provides:
"s.2 The Court or Judge ….. in any proceedings relating to an offence … punishable … upon indictment may -
(a) where a defendant, after a hearing on the merits, is acquitted … as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings.
s.3 (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… granting the certificate -
(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and
(b) that any act or omission of the defendant that contributed or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances".
Section 3A(1) of the Act defines "all the relevant facts" as:
"The relevant facts established in the proceedings, and
any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and
any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that:
i relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and
ii. were not adduced in the proceedings."
Leave may be granted to the prosecutor to respond to "further relevant facts" adduced by the applicant (s.3A(2)) and for the applicant to respond to such further material adduced by the prosecution (s.3A(3)).
The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. I have had regard to the various authorities cited in the submissions of the parties. An important judgment concerned with the interpretation of the task of the court on such an application is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that decision the Court held inter alia:
"… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial, during the trial or afterwards, admitted under s.3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker. The decision maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have reasonable to institute the proceedings" (559G-560B) - emphasis added.
The Court went on (at 560-561) to set out the terms of the second reading speech where it was said that
"...the bill represents a middle course between the two extremes I have cited. It departs from the old English conception that costs in criminal trials should only be awarded in exceptional cases. On the other hand it establishes criteria which, when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the prosecutor or the accused (emphasis added)".
In concluding, the Court in Allerton (at 562) restated the test to be applied as follows:
"[The section] simply asks the decision maker - who by the time of decision knows all of the relevant facts which hypothetically are ascribed to the prosecutor at the institution of the proceedings - whether, if such facts had then been available it would not have been reasonable to institute the proceedings. In some cases the prosecutor will have had evidence of all or virtually all of the relevant facts at the time of the institution of the proceedings. But in others, the prosecutor may not have had evidence of some of the facts until the trial. The evidence of the defendant for example, may, perfectly reasonably, not have been available to the prosecutor at the time of the institution of the proceedings."
In Mordaunt v DPP [2007] NSWCA 121, McColl JA gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. These are set out at [36] of her judgment by reference to various authorities (including Allerton) and the relevant matters to this application she identified may be summarised as follows:
i. The Costs in Criminal Cases Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes.
ii. The "institution of proceedings" in s.3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill.
iii. The applicant for a s.2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances.
iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?"
v. The judicial officer considering the application must find what were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted "it would not have been reasonable to institute (the proceedings)" - an applicant for the Certificate must succeed on both the "facts issue" and the "reasonableness issue".
vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with the threshold question posed by s.3(1)(a); other facts will also be relevant and admissible going amongst other things to the question posed by s.3(1)(b) and to the ultimate question whether, assuming that the Court is of the opinion required to be specified, it should exercise its discretion under s.2 (of the Act).
Courts should not attempt to prescribe an exhaustive test of what constitutes "unreasonableness" for the institution of the proceedings. But the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (vii)-(ix) below in part).
vii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious.
viii. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence.
ix. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal.
x. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially in the realm of the ultimate fact finder. If the question for a jury depended upon "word against word" in the majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.
xi. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution.
xii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges.
xiii. The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate.
In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because "it is necessary that justice be seen to be done". Her Honour Justice Simpson, stated:
"I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that "it is necessary that justice seem to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction" [19]. (Also see [16]).
The Crown submissions further summarised relevant 'legislative' and other legal matters as follows:
"Section 3A(1) of the Costs Act defines what are considered to be "all the relevant facts" for the purposes of Section 3(1)(a) of the Costs Act. The relevant facts are "relevant facts established in the proceedings" (Section 3A(1)(a)) and relevant facts established by the defendant or prosecutor on the application for a certificate (Section 3A(1)(b) and (c)). The test does not require a finding as to when the prosecution became aware of all or any of "the relevant facts". Nor does it imply any fault on the part of the prosecution in that regard. (see Allerton v The Queen (1991) 24 NSWLR 552 at 562. It should be noted that the technical problems with Section 2 of the Costs Act raised by the appeal Court in Allerton have since been overcome by amendments to the section).
"The grant of a certificate does not involve a finding of fault on the part of the prosecution: it is a purely hypothetical inquiry in which the prosecution is notionally put in the position of knowing all the facts which have since emerged…"
"(Particular emphasis was placed on the passage in) R v Manley (2000) 49 NSWLR 203, at 205 to 206. At 206 Wood CJ at CL stated that the section, "calls for an objective analysis of the whole of the relevant evidence." He also stated that "matters of judgement concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury." (which is identified in the passages from Mordaunt cited above at para 12(x) of this judgment.)
"The onus is on the defence to establish that, in the light of the evidence now available, it would not have been reasonable to institute the proceedings and that the accused has not unreasonably contributed to the institution or continuation of the proceedings: Allerton v DPP (1991) 24 NSWLR 550, R v Eyers (unrep) Sup. Ct. 23.11.90."
"… R v Manley (held) that the Court had a discretion whether or not to issue a certificate. The NSW Acts Interpretation Act effectively says that "may" means "may" not "must".
In this matter there was no conduct of the applicants identified that had "unreasonably contributed to the institution or continuation of the proceedings."
General Outline of the Crown Case
Rishaad Christian was shot in the left leg 3 times in the vicinity of, or inside, the clubhouse of the Mt Druitt Chapter of the Rebels Motorcycle Club at Minchinbury just before 8:30pm on 7 July 2014. The clubhouse is located on an industrial estate although there is a mosque or prayer hall across the road from the clubhouse. He was then beaten with a blunt instrument like a baseball bat suffering fractures to his nose and face and a small "brain bleed". He suffered "grievous bodily harm". It was the Crown case that the three men who attacked him were Mr Saliba, Mr Rymer and Mr Rolfe.
Central to the proof of guilt of each of the accused was the credibility and truthfulness of the central witness, Rishaad Christian, although there were various pieces of evidence that were relied upon by the prosecution to support his account particularly: mobile phone records and transmission tower locations relating to the activity upon mobile phones to which particular accused had access, close circuit television footage at the Rebels Clubhouse and from surrounding businesses and locations depicting motor vehicles allegedly connected to Mr Mujuevic, Mr Saliba and Mr Rolfe, representations made to Mr Rishaad by Mr Cusens in hospital, and elsewhere, after the event, representations made by Mr Mujuevic to another member of the Rebels Motorcycle Club, Mr Baldacchino (and "Mr Woods") and a handwritten "admission" by Mr Saliba on a segment of typed "Police Facts" found at premises with which Mr Saliba had some connection. He had written, near part of the document underlined indicating that Mr Christian had identified Mr Saliba's voice; "Rishaard Christian is a bad give up dog".
The Crown case against Jamie Saliba was that he was involved in a joint criminal enterprise with each of the accused and Timothy Rolfe to shoot Rishaad Christian, in that they were all aware Rishaad Christian was attending the Minchinbury clubhouse of the Rebels Motorcycle Club, that is of the Mount Druitt Chapter, and that on his arrival it was agreed that Mr Saliba, armed with a firearm, would discharge it, causing grievous bodily harm to Mr Christian. The prosecution alleged that he, Mr Saliba, was disguised by a balaclava, as were Mr Rymer and Mr Rolfe, and that Mr Saliba, Mr Rymer, armed with a baseball bat, and Mr Rolfe pursued Mr Christian and assaulted him in Grex Avenue (outside the Clubhouse) particularly, as I would understand it, by Mr Rymer striking him with the baseball bat.
The prosecution relied upon Mr Christian's identification of the voices of Mr Saliba and Mr Rymer as his attackers and his evidence of description of the 3 attackers, with Mr Rolfe attributed as the biggest of the 3 balaclava-clad men. At about 8.30pm whilst lying on the road or in the gutter of Grex Avenue. Mr Christian spoke to police officer, Detective Seymour, after calling him at 8.25pm telling him that he had been shot. The detective asked him "who shot you", he replied "Jamie and Chris". He asked "Jamie Saliba and Chris Rymer?". Christian replied, "Yes". The prosecution in relation to the case against Mr Saliba relied upon evidence that it was said supported his presence at Minchinbury and his relationship with Rymer and Rolfe. It relied upon evidence relating to alleged contact between a mobile phone service allegedly under the control of Mr Rolfe and the mobile phone service registered in the name of 'Ashlei Rose', allegedly Mr Saliba's partner, during the hours before 8pm on 7 July 2014.
The Crown relied upon evidence of Rose's ownership of a white Mazda 6 and that Mr Saliba was driving her vehicle when stopped by police the following day. Relying on CCTV vision, a white car (said to be a white Mazda 6) was shown in the area of the clubhouse before and after the shooting.
The Crown case against Mr Rymer was that he was part of a joint criminal enterprise and his involvement in the joint criminal enterprise was confirmed his presence, the fact that he was disguised and that on Mr Christian's account he was present when Mr Christian was shot. Knowing that he had been shot, he pursued Mr Christian after the discharge of the firearm, beating him with a wooden bat shortly there afterwards. It relied in part upon the alleged mobile phone contact between the service alleged to be under Mr Rolfe's control and the mobile phone service registered to Mr Rymer.
With regard to Mr Rolfe, the Crown alleged he is the third disguised man and the actions that he undertook immediately after the shooting of Mr Christian demonstrated his participation in a joint criminal enterprise to shoot and beat Mr Christian. He had prior mobile phone contact with Mr Saliba and Mr Rymer and his car was shown in CCTV footage to be in the vicinity of the Clubhouse at the time of the shooting.
Whilst there was no dispute Mr Christian was both shot and beaten up, the Crown case to implicate Mr Saliba and Mr Rymer was dependent upon the truthfulness and reliability of Mr Christian's version of events particularly his voice recognition of them. The guilt of the co-accused was built on this evidence of voice recognition being accepted.
With regard to Mr Cusens, there was no dispute that Mr Cusens was not present at the time Mr Christian was shot. There was no dispute however that Mr Cusens attended the clubhouse sometime around about 7.13pm on 7 July but left the clubhouse sometime around about 7.40pm. The Crown case against Mr Cusens was that he was part of a joint criminal enterprise to discharge a firearm at Mr Christian, in that he made arrangements for Mr Christian to attend the clubhouse for a meeting at 8pm and organised for Rishaad Christian to be picked up by Mr Mujuevic. He arrived before the shooting and deactivated the CCTV television system within the clubhouse in preparation for Mr Christian's arrival. On the Crown case he did this to conceal the acts in furtherance of the agreement of discharging a firearm to cause grievous bodily harm to Mr Christian and or to conceal the identities of the persons who were involved in the shooting of Mr Christian. The Crown case relied upon the fact that at the time of the shooting of Mr Christian, Mr Cusens had access to a mobile phone and had the opportunity to warn Mr Christian and/or Mr Mujuevic if he was walking into a 'trap'. The defence relied upon evidence (some of which was contained in security recordings made in the hospital of representations of "innocence made by Cusens to Mr Christian and representations made to by Mr Christian to his partner indicating some doubt as to what happened.
The Crown case against Mr Mujuevic was that he had prior knowledge of the proposed discharge of the firearm towards Mr Christian at the Mt Druitt clubhouse and he knew that it was to take place at least on 5 July 2014, as evidenced through the FF series of exhibits, particularly FF1, the first intercepted telephone conversation that he had with Mr Richard Baldacchino (another member of the Rebels) telling him that Mr Baldacchino's commercial dispute with Christian would be resolved as Christian would shortly not "be around". He participated in this criminal enterprise, amongst other things, by advising Rishaad Christian not to be armed on 7 July and, by arrangement with Mr Cusens, delivered Mr Christian to the Rebels Clubhouse to be shot by Jamie Saliba in the presence of Mr Rymer and Mr Rolfe. It is alleged that he made admissions to Mr Baldacchino of his knowledge of what eventually happened in a telephone conversation which was intercepted by police; that occurred at 9.11pm on 7 July 2014.
None of the accused gave evidence. But Mr Cusens and Mr Mujuevic relied upon partial evidence of "good character", that is no prior convictions for offences of violence. Many exhibits were produced by the accused through witnesses in the Crown case or otherwise. Some of this material was provided to the defence by the prosecution or was produced under subpoena.
Submissions
All the parties provided submissions to the court as to the legislative provisions and the principles determined by the various authorities cited. Those various principles are summarised above. As to the submissions on matters of "fact" and as to the "reasonableness" of the prosecution decision to institute proceedings, are largely set out below.
Submissions made on behalf of Mr Saliba
This applicant submits that the following matters are relevant to the question under s. 3(1)(a), namely whether it would have been reasonable to institute the proceedings had the hypothetical prosecutor been in possession of all relevant facts at the time the proceedings were instituted.
The case against Mr Saliba relied almost entirely on the evidence of Rishaad Christian. He was the foundation upon which the Crown case against Mr Saliba was built and central to this was the claim by Mr Christian that he recognised Jamie Saliba's voice at the time of the shooting. This voice identification was so crucial in this case that the Crown accepted that it had to prove beyond reasonable doubt that it was both truthful and reliable before a jury could have found Mr Saliba guilty. It was submitted that it was clear from the evidence at trial that there were many factors which would have to had affected the accuracy of this voice identification and the possibility of a mistaken voice identification was extremely high. Given this it is submitted that the fact is that a jury could have never been reasonably satisfied that the accused was the person who shot Rishaad Christian.
It was submitted that the factors that were identified for the jury demonstrating that the voice identification was unreliable were as follows:
1. The number of words spoken were not sufficient for an accurate identification
2. Mr Christian wasn't really paying attention when the words were spoken. He was texting on his phone.
3. He wasn't even sure what was said to him shortly after when he spoke to Det. Seymour. Also it was submitted that he made equivocal comments to Det. Tarren or of the police who attended the shooting.
4. Mr Christian said himself that the words spoken may have been said when the gun went off. A simultaneous loud gunshot would have to make it almost impossible to accurately identify a voice, and it may have affected both his ears.
5. The person who shot Mr Christian had a balaclava or sock over his head and this may have also distorted that person's normal speaking voice.
6. Mr Christian never described the voice, volume, or tone at all or anything distinctive about the voice.
7. Evidence of Mr Christian was that apart from one brief meeting at the funeral and wake he really hadn't heard Jamie Saliva's voice in many, many months. His hadn't had any real recent familiarity with Jamie Saliba's voice.
8. In his evidence Christian conceded that it was "possible" that it could have been somebody else that sounded like Jamie and looked like Jamie in the dark. This particular evidence was quoted in the Crown's submissions.
It is submitted that these factors alone or in combination would have lead the jury to have rejected the voice identification as unreliable.
Further, it was submitted that there was evidence adduced by the defence in the trial obtained from the Westmead Hospital Listening device that demonstrated that Mr. Christian was prepared to fabricate evidence to concoct a mode of identification. The main piece of evidence that demonstrated that the voice recognition might be a complete fabrication was the conversation with Detective Tarren where Rishaad Christian claimed to have seen the tattoos of the person who shot him. (Ex 25 & 25A) This conversation showed a preparedness by Rishaad Christian to manufacture or concoct evidence to implicate Jamie Saliba as the person who shot him
It was submitted that Mr Christian had lied in denying that he was providing information to Detective Seymour. His evidence was in "stark contrast" to the evidence of Detective Seymour on this matter. It was submitted that a jury could not have found him to have been a witness of truth in the face of such blatant dishonesty in his evidence.
Mr. Christian's evidence did not match up with other evidence in the trial. Particularly, he making a demand for money from Mr Saliba and Mr Rymer's former solicitor, Mr Van Houten to make the case go away. Mr Van Houten gave evidence that directly contradicted that of Rishaad Christian on this matter.
It was also submitted Rishaad Christian's evidence in relation to a debt owing by Jamie Saliba did not match up with the evidence of Mr. Baldacchino. This must have called into question whether there ever was any debt owing by Jamie Saliba. This undermined an "important aspect" of the Crown case which relied upon as the existence of such a debt as to the motive for Jamie Saliba committing the offences charged. The conflict between the evidence of the witnesses was in relation to the taking by Christian of $10,000 cash previously off Baldacchino as part repayment of Saliba's debt, and the assertion that Richard Baldacchino owed $20,000 to Jamie Saliba. Richard Baldacchino denied both these assertions that had been made by Christian. It was submitted to the jury that if it couldn't be satisfied that these matters were true it could not accept that Jamie Saliba owed a debt to Rishaad Christian.
Reference was made to Westmead hospital listening device conversation between Rishaad Christian and Troy Cusens, during which Mr Christian said "Yeah I don't know who fucken shot me, I wouldn't have a clue man" (or on the Crown version "he would have a clue"). It is submitted that this called into question Rishaad Christian's credibility in that he has let his guard down as to the real state of his knowledge or in fact lack of knowledge as to who shoot him. He did not know his conversation was being recorded. It was submitted that he was trying to find out who shot him because either he didn't know or, at best on the Crown version of this comment, he only had "a clue" as to who it might have been. It was submitted that this was an "unguarded moment". This statement stood in "stark contrast" to everything else he said. It was submitted that this statement alone would have given the jury a reasonable doubt as to the truth of any claims that Rishaad Christian had made in relation recognising the voice of the person who shot him as that of Jamie Saliba.
As to circumstantial evidence relied upon by the prosecution it was submitted that the circumstances were "few" and the two main circumstances relied upon by the Crown to show that Jamie Saliba was present at the time of the shooting were demonstrated to have "little or no relevance".
It was submitted that the Crown in its opening address told the jury that it relied on the finding of Jamie Saliba's credit card on the bar in the Rebels Clubhouse following the shooting. The inference being that it must have been left there inadvertently by him prior to the shooting taking place. The evidence that emerged at trial was that the credit card was in fact found in a cup behind the bar indicative that may have been there for some time. In addition, Commonwealth Bank business records tendered in the trial showed that the card had been reported by the primary card holder as lost on 7 April 2014 and the account closed on 7 April 2014 - 3 months prior to Rishaad Christian being shot.
The second main circumstance, that was submitted to be "irrelevant", was the Crown contention that a white car shown in CCTV footage was the Mazda 6 owned by Jamie Saliba's partner. This was relied upon the Crown to establish Jamie Saliba's presence prior to the shooting taking place. However, CCTV and still images of the rear lights of the white car were tendered in the defence case and a comparison between these images and the photographs of a Mazda 6 model car the same as that owned by Ashlei Rose, "conclusively" showed that they had different rear light patterns formed by taillights, number plate light and brake lights. It was submitted it was demonstrated at trial that the white car in the CCTV footage was not the same car as that owned by Ashlei Rose.
It was submitted that if the issues and facts which emerged in the trial in relation to the credibility and reliability of the evidence of Rishaad Christian, and the weaknesses in the circumstantial evidence, had been available at the outset it would not have been reasonable for the Crown to have instituted these proceedings.
Submissions were put as to why a directed verdict of acquittal was not sought on behalf of the applicant at the close of the Crown case. The Court was reminded of the remarks of Blanch J in the case of MacFarlane that it is not reasonable to prosecute merely because there was at trial a prima facie case to go to the jury, because such a decision necessarily disregards all the evidence which favours the accused.
It is submitted there is no evidence of any act or omission on Mr Saliba's part that might have contributed to the institution or continuation of the proceedings. As such it is submitted that there are no considerations that arise under s 3(1)(b).
Submissions on behalf of Troy Cusens
It was submitted that the prosecution case against Mr Cusens was dependent upon the prosecution proving beyond reasonable doubt that Mr Saliba shot Mr Christian in the presence of Mr Rymer with the prior knowledge of Mr Cusens and Mr Mujcevic. The identification of Mr Saliba as the person who shot Mr Christian was based entirely upon voice recognition evidence given by Mr Christian. The applicant submitted that it would not have been reasonable to institute the proceedings in the circumstance hypothesised by s3(1)(a) of the Act, essentially because of the inherent unreliability of that voice recognition evidence.
Reference was made to the fact that during his closing address counsel for Mr Saliba identified "eight" aspects of the evidence which pointed to that unreliability. The eight aspects submitted by counsel for the accused were:
1. The fact that Mr Christian's purported identification of Mr Saliba's voice was based upon only two words spoken, 'Here, cunt.'
2. On Mr Christian's own account, he was not really paying attention at the time the words were spoken. He was sending or receiving a text message on his mobile phone and did not realise that he had been shot the first time.
3. At a time very shortly after the shooting Mr Christian was not entirely sure of the words spoken by Saliba. Mr Christian told Detective Seymour that the shooter had said "'Fucking cunt', or something" and a couple of days later suggested to Detective Tarren that the shooter had said "'Here, you fucking cunt', or something like that".
4. The words spoken by the shooter, "Here cunt", "Fucking cunt" or "Here you fucking cunt" were spoken simultaneously or very close to the time that the firearm was actually discharged. This undoubtedly would have seriously impaired Mr Christian's ability to hear what was said and identify the voice.
5. The person who shot Mr Christian was wearing a balaclava or sock over his head which almost certainly would have distorted the speaker's voice."
6. At no time did Mr Christian ever give any sort of description of the voice he heard.
7. Although Mr Christian said that he and Mr Saliba associated regularly together at one point in time, the pair had a falling out in January 2013 and Mr Christian had not spoken to Mr Saliba for at least six months prior to the time of the shooting.
8. Mr Christian conceded in cross-examination that it was possible that the shooter could have been someone else that sounded like Mr Saliba and looked like him in the dark.
It is submitted that this was a case where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in reliability. It is submitted it would not have been reasonable for the hypothetical fully informed prosecutor to institute the proceedings against the applicant in the circumstances of this case.
It is further submitted on behalf of Mr Cusens' there was no act or omission of the applicant that contributed or might have contributed to the institution or continuation of the proceedings. The certificate should be granted.
Crown Submissions
Whilst jurisdiction to grant a certificate is conceded the Court was reminded of the test to be applied calls for an "objective analysis of the whole of the relevant evidence" (R v Manley, at 206).
It was submitted that the submission on behalf of Mr Cusens relies on primarily the issue of voice identification/recognition and suggests that because of "the inherent unreliability of voice recognition" it would not have been reasonable for the hypothetical fully informed prosecutor to institute the proceedings against the applicant in the circumstances of the case.
The Crown accepted that the prosecution case against Mr Cusens and Mr Saliba was highly dependent upon the prosecution proving beyond reasonable doubt that Mr Saliba shot Mr Christian in the presence of Mr Rymer with the prior knowledge of Mr Cusens and Mr Mujuevic. However voice recognition evidence is not uncommonly unreliable particularly where persons are well known to each other as was this case. This is not a case where Mr Christian had only just met Mr Saliba and Mr Rymer.
The Crown relied upon evidence of Mr Christian that he had known Mr Saliba since 2012. Mr Christian told the jury that leading up to 2014 he had contact with him either on the phone or in person 4-5 times a week sometimes every day. He said he had last spoken to Jamie and Chris Rymer just prior to 7 July 2014 at a funeral at Bringelly at Transcript. Mr Christian gave evidence that he had known Chris Rymer from the time he was at the Liverpool Chapter in 2010 and later when he was part of the Penrith Chapter. This was submitted to be ample basis for voice recognition.
It was submitted throughout Mr Christian's evidence in chief and cross examination he was "consistent and positive about his voice recognition". It was only during the cross examination by Mr Steel for Mr Saliba that Mr Christian in effect volunteered and "appeared to ask himself questions" about his recognition of the voices when gave the following answers (at p 610 line 14-25), upon which Counsel for Mr Saliba relied:
"Look I have seen them, I've hung around them could I be wrong? Possibly, did I hear Jamie's voice I think I did. Could it be somebody else that sounds like Jamie, possibly. Could I hear Chris's voice? I know I did, but could it be somebody else that sounds Chris? Yes possibly. Could it be somebody else that sounds like Jamie? Looks like him in the dark I've heard his voice millions of times."
In essence Mr Christian answered his own question(s) by reasserting the confidence of his recognition. The Crown submitted in relation to Mr Cusens' application that there was no dispute that he was present at the Clubhouse just prior to the shooting or that he indeed turned off the CCTV camera's. Accepting or not that he was threatened by the gunman after he arrived at the Clubhouse he did not prevent or warn Mr Christian, or indeed Mr Mujuevic, or in any way deter them from attending the clubhouse despite having a phone and the ability to contact Mr Christian.
As to the conversation recorded on the listening device at Westmead Hospital in respect of which on behalf of Mr Saliba it was suggested that the conversation with Detective Tarren demonstrated that Mr Christian was prepared to fabricate or concoct a mode of identification, the Crown submits that the evidence of Detective Tarren and Rishaad Christian of what Mr Christian actually put in his statements does not support this, as he did not identify by any tattoos he saw any of his assailants.
As to the submission put on behalf of Mr Saliba as to the evidence of Rishaad Christian providing information to Detective Seymour, the Crown concedes that Mr Christian did deny providing information to Detective Seymour despite the evidence that of the 'sms' messages between the phone of Mr Christian and Detective Seymour were sent and received. It is submitted however that, as with all witnesses, the jury were in a position to accept all, part or none of the evidence of Mr Christian in respect of this issue. But it was collateral to the real issues to be resolved.
As to the demand for money from Mr Saliba's former solicitor Mr Van Houten, the Crown submits that Mr Christian did not deny having his conversation. He gave evidence he could not "remember it". As with all witnesses the jury were in a position to accept all, part or none of the evidence of Mr Christian in respect of this issue. Mr Christian did maintain that he was owed money by Mr Saliba and Mr Rymer as to the evidence of debt owing by Mr Saliba. The Crown submits that the cross examination on behalf of Mr Saliba did not suggest that Rishaad Christian did not supply drugs to Mr Saliba, or that there was not a debt. Mr Christian was only challenged as to the amount.
As to the submission on behalf of Mr Saliba that the listening device conversation between Mr Christian and Mr Cusens, where Mr Christian was alleged to have said, "Yeah I don't know who fucken shot me, I wouldn't have a clue", or on the Crown version "he would have a clue, demonstrated no knowledge of who actually shot him, the Crown submits that the whole of the recording should be considered. Because just before that statement had been made, Mr Christian had said "I know Chris was there and Jamie was there"
In reply to the submission made on behalf of Mr Saliba in relation to the circumstantial evidence of the finding of the credit card at the Mt Druitt Clubhouse, the Crown submits that the finding of the credit card did show a connection between Mr Saliba and the clubhouse at some time, bearing in mind he was the member of another Chapter although not necessarily at the time of the shooting.
Concerning the submission in relation to the white Mazda 6 owned by Mr Saliba's partner and the rear light pattern not being the same as the Mazda sedan connected to Mr Saliba, the Crown submits this vehicle appeared to be the same vehicle. Detective Senior Constable Colman gave evidence in regards to both the front and rear light pattern pointing to the vehicle shown on CCTV footage being similar to the vehicle connected to Mr Saliba.
The prosecution ultimately submitted that the question (that is, the "hypothetical question") for determination is:- "If the prosecution had possession of evidence of all the relevant facts, would it have been reasonable to institute proceedings". It is submitted by the prosecution with respect that the answer must be "Yes". Primarily because the facts of the case and the credibility of the witnesses were always a matter for a jury. That is the same regarding the other circumstantial evidence including motive or a perceived motive.
The prosecution referred to the passage in R v Manley at (p.206) of Wood CJ at CL, previously noted, where His Honour stated that:
"matters of judgement concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury."
On this basis it was submitted that it was reasonable for the Crown to have prosecuted the applicants and that a certificate should not be granted to either Mr Cusens or Mr Saliba.
Consideration
The relevant "facts" to these applications are as follows:
The prosecution case in proof of guilt of the applicants was centrally concerned with the truthfulness and reliability of Rishaard Christian. The prosecution was required to consider the relevant warning that were given in the circumstances in which he claimed recognition of the voice of Mr Saliba as that of the person who had shot him.
The matters that were summarised in the submissions for Mr Saliba and Mr Cusens point to a number of matters that are relevant "facts" to take into account:
1. The voice recognition of Mr Saliba by Mr Christian was based upon the utterance of as few as two words "fuckin' cunt", or as much as four words "here you fucking cunt". On either version there were few words spoken.
2. At the time of the shooting Mr Christian was taken by surprise and was distracted in that he had been sending or attempting to send on SMS message.
3. The words spoken by the shooter were spoken at the time of or immediately before the discharge of the firearm which could affect the hearing of Mr Christian.
4. The "shooter" was wearing head covering that could have affected the clarity of the spoken word.
5. There was some inconsistency in the recollection of Mr Christian of the words spoken in and Mr Christian. When confronted with the consistency between his evidence and his statement to the police he disowned the statement putting the inconsistency down to a "typo".
6. Apart from a brief conversation at a funeral 'wake' about a week before there had been a number of months since Mr Christian had spoken to Mr Saliba and Mr Rymer.
7. Ms Christian had conceded the possibility that he could be 'mistaken' in his identification of Mr Saliba.
8. The relevant events occurred over a short period of time with Mr Christian under a great deal of "pressure" and no doubt suffering a great deal of stress.
9. At one point of the police investigation he suggested that his assailants had shown him their 'tatts' making them recognisable , a claim not made in his statement or in evidence.
However, as the matter was left to the jury, there was sufficient basis for Mr Christian to recognise the voices. He had been a joint member of the same Chapter of the Rebels Motorcycle Club as Mr Saliba and Mr Rymer for a number of months, and had many opportunities to familiarise himself with their voices and their physical appearance at the time of the shooting. He had known Mr Rymer since 2010 and Mr Saliba since 2012. Part of that time Mr Christian was in gaol.
The most important fact that militated in support of the belief he held that he had recognised the voices was that within minutes of being shot and beaten, despite being wounded and severely injured, he told Detective Seymour in a telephone conversation whilst seeking assistance that two of the men that had attacked him were Jamie Saliba and Chris Rymer, which he confirmed in his subsequent signed statement to police in relation to the matter. His account and Detective Seymour's account of the conversation were essentially the same and the fact of telephone contact at 8.28pm and 8.31pm on 7 July was confirmed by telephone records.
When he was found by paramedics and other police he was more reluctant to disclose any information, as he was in discussions with police when in hospital receiving treatment. But the evidence established that he trusted Detective Seymour, despite the fact that he (Christian) was a member of the Rebels Motorcycle Club, in fact a senior office holder, the Sergeant at Arms of a Chapter with responsibilities for enforcing the disciplinary 'code' of the organisation. The spontaneity of the identification or recognition of two of his assailants provided little of no opportunity to consider reasons for falsely implicating Mr Saliba and Mr Rymer. It was a voluntary, spontaneous claim of recognition whilst seriously injured with no time to reflect as to whether it should be done or not.
Mr Christian came to the clubhouse, at the invitation of Mr Cusens, for a 'meeting' which was within Mr Cusens' authority as the Chapter President. Mr Cusens had arranged the meeting for 8pm on 7 July 2014 that same morning. Mr Cusens arranged with Mr Mujuevic to pick him up and take him to the clubhouse by a particular time. That permitted Mr Cusens to attend beforehand to disconnect the CCTV camera system to prevent subsequent identification of who was attending the meeting.
This was consistent with at least two things. Knowledge that there was to be an "ambush" of Mr Christian, or that there was to be a meeting to discuss club business and Mr Cusens was concerned in either situation that there be no visual record of who participated.
There was no evidence, or suggestion made, that any of the accused had any knowledge of the relationship, such as it was, that Mr Christian had with Detective Seymour. No issue arose that any "planned" attack was revenge or payback related to that association.
Mr Christian was told by Mr Mujuevic not to come to the meeting "armed", or "tooled" or "strapped". There is no evidence that Mujuevic was armed.
Mr Cusens claimed to Mr Christian that he did not know the shooting was to occur when he set up the meeting (and disconnected the CCTV) but that he had left the clubhouse when he was threatened by an armed man and told to leave.
He told Mr Christian on 10 July 2014, when Christian was in hospital that he had been told to "fuck off" and that "he fucked" off. He said and that he "did not have a clue" who was there, or what happened. He later said on 12 July that "Hughesy was there, told him to "open the clubhouse and fuck off".
Mr Cusens drove away, towards his own home and did not warn Mr Mujuevic or Christian that he had been threatened at the Clubhouse and that a person was presumably waiting for them to arrive. There was no evidence of any prior communication with Mr Cusens by Saliba, Rymer and/or Rolfe. They were members of different Chapters to that which Mr Cusens was President. The accused sent a message within an hour and ten minutes of the shooting to different people indicating that he "thought" someone had been shot at the clubhouse but he did not know if it was Mujuevic or Christian, having heard of the shooting on "Facebook".
Mr Cusens did not know what had happened to Mr Christian until the next day. He was not told what had happened by Mujuevic or anybody else allegedly involved. At one point within hours of the shooting, having learnt there had been a shooting on 'Facebook' he indicated in a text message was not sure whether Mujuevic or Christian had been shot. Mr Cusens subsequently spoke to Mr Christian in hospital and at a McDonalds restaurant on 12 July 2014, denying any prior knowledge of the shooting and any knowledge as to who was responsible. Mr Cusens also denied wrong doing to his daughter in a private communication. He made no admission of prior knowledge of what was to happen even when his conversations were being secretly recorded. He exchanged messages with Mr Mujuevic on 15 and 16 July 2014 giving no indication of knowledge of who had shot Christian (Exhibit 21).Secretly recorded conversations of Mr Cusens with his partner at a hotel at Terrigal did not reveal any incriminating representations by the applicant.
In an "unguarded" conversation Mr Christian had with others, he made comments at one point about not having a "fucking clue" about who "shot" him. But these comments were made in the context of him saying earlier in the same recorded conversation that he "knew that Chris (Rymer) was there and Jamie (Saliba) was there".
He told police on 9 July when in hospital that the men who assaulted him were not wearing "long sleeves" and he recognised their "tatts". But in his statement made the next day and in evidence that they had long sleeves and he did not see their "tatts (tattoos)". He said he recognised the "body size" of the assailants. The prosecution relied upon similarities of description of body size and shape of Mr Saliba, Rymer and Rolfe.
Mr Christian was not a reputable person. He admitted that he was a violent man (when he needed to be) and other evidence showed that he had been dishonest in his endeavour to avoid appearing at Court and that he was a drug dealer. But he also believed that Mr Saliba and Mr Rymer owed him a substantial sum of money for drugs he had provided to them which debts he had spoken to them about are a week before at the funeral 'wake' for a Rebels Club member. Christian had been a member of the same Chapter of the Rebels (the Penrith Chapter) for a couple of years. His credibility was damaged by his approach to Mr Van Houten offering to withdraw his allegation for the payment of money. That was the sort of person he was. Manipulative and self-absorbed. But it did not make his claimed recognition of the voices necessarily untrue. The type of person Christian was fitted the milieu in which he and the accused moved.
As to the evidence about the debt claimed by Mr Christian, said by the prosecution to provide a motive for the shooting, even if the money was not owed as specifically claimed by Mr Christian, the claim that it was (or the fact that it was) provided a "motive" for involvement in the shooting. There was a stronger motive if in fact the money was owed for the drug debt. This claim of money owed to him was also a "motive" for Mr Christian to falsely implicate the accused. That is because they had done wrong by him in his view. But if he was owed money he would not get it back by having them convicted of a serious crime which he knew they did not commit. Importantly, he never linked the shooting when speaking to Detective Seymour to any "motive" advanced by the prosecution in the conduct of the case. Then again it would be unlikely that he would admit to a detective concerned with investigating 'gang' crime that he was owed up to $100,000 for drugs he had supplied to others.
There was evidence that linked Mr Rolfe Mr Saliba and Mr Rymer in the hours before the shooting. The mobile phone records and the 'triangulation' evidence of mobile phone towers showed contact from a phone service connected to Rolfe tothe services of Mr Saliba and Mr Rymer before the shooting. Although there was no direct evidence in the cases of Mr Saliba and Mr Rolfe of "ownership" of a particular mobile phone service there was evidence that could establish access by both men to these mobile phone services.
There was evidence of cars connected with Mr Saliba and Mr Rolfe being in the vicinity of the Clubhouse before the shooting took place. There was evidence that might have, at least, raised a doubt, as to whether Ms Rose's Mazda 6 was shown in the CCTV evidence. There was no doubt that Mr Saliba had control of the motor vehicle owned by Ms Rose the next morning when he was stopped by police driving her white Mazda 6 in St Marys. There was no doubt that Mr Rolfe had control of a silver Pulsar at the relevant time, seen on CCTV footage near the clubhouse in Minchinbury. He had bought such a vehicle shortly before the shooting and was filmed by police "dashcam" driving such a vehicle for which he received an infringement notice.
Mr Cusens was on friendly terms with Mr Mujuevic and Mr Christian before the shooting and after the shooting. In fact he actively sought out Mr Christian to explain himself to him and show concern for what happened to him. A secretly recorded conversation of Mr Christian in a telephone call on 16 July recorded Mr Christian saying, "I'll tell you right now, it wasn't Cus… he got scared… he was petrified". Mr Christian had nominated "Andrew Hughes" as the 'third person' who he had grown up "with" and had been in gaol with.
On the issue of 'reasonableness' of instituting proceedings against Mr Saliba, the fact that Mr Christian had implicated him within minutes of being shot when he spoke to a policeman with whom he had prior connection and in whom he clearly had some trust was a highly significant matter. Mr Christian had little or no time to ponder the implications of this attribution of blame, or to ponder reasons for falsely, that is deliberately and falsely, blaming the applicant and Mr Rymer.
That Mr Christian was in a range of ways, not an impressive witness. He had been demonstrated to be dishonest in some respects. He impressed as a disreputable person. The prosecution knew that it was presenting the Sergeant at Arms of an organisation that has a poor reputation for lawfulness as its main witness. But it was beyond doubt he had been shot three times and badly beaten and was entitled to the protection of the law, as much as the applicants. He had been shot in and/or near a location that had irrefutable connection with the Rebels Motorcycle Club and it was entirely reasonable to conclude the treatment of him was connected with Rebels members.
The prosecution had evidence of a motive for the applicant Saliba to be involved and evidence that supported an allegation of connection with clubhouse before the shooting as well as presence in the area of the clubhouse at the time of the shooting.
Any equivocations by the witness either privately during the secretly recorded conversations and particularly in his evidence before the jury, had to be considered in the context of his certainty of recognition when he had the first reasonable opportunity to identify or recognise his assailants or some of his assailants. Particularly the person who shot him. It was not an opportunity forced upon him on being spoken to by police on being found wounded and beaten. It was an opportunity that he seized almost immediately after he was shot by contacting a police officer that he trusted.
I take into account that he give untruthful evidence of the extent of his contact with Mr Seymour. This was, with the other matters I have identified, a matter that reflected adversely upon his credibility. As did his account of his conversation with Mr Van Houten. It was clear that that he was manipulative and duplicitous when he had the opportunity to consider his position. He knew that if he resiled from his recognition of Mr Saliba the prosecution case against Mr Saliba would collapse. His collateral credibility was very poor indeed. But these were matters to be weighed by a tribunal of fact in the context of the fact that when he was wounded and beaten, he had almost immediately, without prompting, implicated Mr Saliba and Mr Rolfe, in circumstances where his fundamental account was not contradicted by the available "crime scene" evidence. As well, he had come from custody and stood by his initial recognition of Mr Saliba when he gave evidence.
That the 'credit card' evidence fell away is a matter of little or no moment one way or the other. It certainly did not connect Mr Saliba with the clubhouse on the day of the shooting and whether Mr Saliba had been to the Minchinbury clubhouse months before would have been no surprise and was not of any evidentiary value to the prosecution case.
As to the application of Mr Saliba, ultimately I have not concluded that it was not reasonable to institute the proceedings, applying the relevant tests arising under the Act. As dependent as the prosecution was upon a witness who has a great deal of unreliability and in some instances demonstrated untruthfulness and given his 'self-assessment' of the possibility that he was mistaken in his recognition of Mr Saliba's voice in response to the questioning of Counsel for Mr Saliba, the reality was that determination of the issue was quintessentially within the province of the tribunal of fact. It had to weigh up the issues in the context of the fact that Mr Christian was a victim of an unlawful assault in premises that only members of the Rebels would have access to that Mr Christian had been invited to a meeting there at 8pm where people were in wait for him. He made immediate unprompted complaint of Mr Saliba's involvement and claimed a reason for his involvement that was not demonstrated to be false. This was classically a matter for a jury to decide. Even if the circumstantial evidence of the applicant's presence in the area was weak, or even fell away, there was no evidence of Mr Saliba being elsewhere, bearing in mind he had no onus to prove anything. If there had been no 'complaint' to Seymour it could have been a case of a witness "unworthy of acceptance". But this was not that type of case. There was a crime committed. Who did it was a matter for the jury. That is not to say that there was anything unreasonable in the verdicts. It was open to a jury to acquit where properly directed. This was not a matter where it could be simply stated that the prosecution had a "prima facie" case, it may as well go ahead with the prosecution.
In relation to the reasonableness of the decision to prosecute Mr Cusens, added to the above matters concerning the prosecution case to convict Mr Saliba was the fact that having disabled the CCTV system the applicant had on his account "fled the scene" without giving any warning to Mr Mujuevic and/or Mr Christian that he had been threatened and told to "fuck off". In the circumstances in which he told Mr Christian in private that he had no idea that the meeting was a 'set-up' and that he had no choice but to leave quickly, he would have had no idea whether there was any impending threat to Mr Mujuevic with whom he was obviously on good terms, and/or Mr Christian, with whom he was also on reasonable terms before and after the shooting had occurred. He had no demonstrated motive to cause Mr Christian harm even if Christian was using drugs and breaking club "rules".
It was open to the prosecution to view his failure to warn either men as supporting knowledge that something was to happen in the Clubhouse. This in conjunction with his disconnection of the CCTV system and arranging the meeting was the high point of the prosecution case. But this did not necessarily mean that he knew that Mr Saliba, Mr Rolfe and/or Mr Rymer were planning to shoot and bash one or other of the persons attending the clubhouse. There was no evidence he knew those members of another Chapter were there.
The context of these events was an important matter for the prosecution to consider in examining Mr Cusen's behaviour on the evening. Mr Cusens was not the President of a church group. He was the President of a Chapter of what the police call frequently an "Outlaw Motorcycle Gang". It was reasonable for the prosecution to appreciate and take into account that men associated with this Club, armed or otherwise, threatening one another from time to time might not be an infrequent occurrence, despite the fact that the club had "rules" about not causing harm between members according to Mr Baldacchino. That rule did not stop Mr Christian being shot and there was no doubt that this shooting was an 'inside job'. It is extremely unlikely that members of another motorcycle club, as opposed to another Chapter, forced its way into the clubhouse to shoot Mr Christian. That Mujuevic was aware of what was to happen in the clubhouse, if that be a reasonable conclusion to reach from his intercepted telephone calls, was not shown to be known by Mr Cusens, beyond inferences to be drawn from his disconnection of the CCTV system and his arrangement of the meeting. Mr Mujuevic did not intimate Cusens' knowledge of what was to happen to Mr Baldacchino.
Even if Mr Cusens knew that armed people were present at the clubhouse from his own admission to Christian did not establish in his knowledge that Mr Christian would be shot. Particularly that he was to be shot by members of a Chapter of the Rebels Club other than his own. There was no evidence that Mr Cusens was aware of any claimed debt owed to Mr Christian by any of the co-accused. Nor do Mr Mujuevic's admissions against interest give an indication of any particular knowledge of these matters on the part of Mr Cusens. There is no evidence Mujuevic discussed with Mr Cusens, Mr Baldacchino's problems with Mr Christian.
Mr Cusens would not have known that his conversations with Mr Christian were being recorded. The prosecution may have reasonably viewed Mr Cusen's exculpatory behaviour and statements as entirely self-serving to avoid Mr Christian's wrath if he went on the 'warpath' to revenge those that shot him. But it had to consider that at the time Mr Cusens would have known the matter was in the hands of the police and that it was most unlikely that Mr Christian would embark on a crusade of revenge with so much police interest, notwithstanding that Mr Christian was a very formidable 'warrior' as his toughness after being shot demonstrated. In giving evidence he exhibited no fear of any of the accused. In fact he exhibited extreme hostility and contempt particularly towards Mr Saliba and Mr Rymer which may have been detrimental to his credibility as a witness.
I appreciate that the prosecution may have wondered what a jury might have made of a trial without Cusens present. He organised the meeting where Mr Christian was ambushed. He turned off CCTV system that would have shown a jury what actually happened. Then again the jury did not have the case concerning Mr Rolfe to consider. Even if the applicant Cusens was not tried, the evidence of the arrangements for the meeting and his attendance on the club would have been available and admissible in a trial of Mr Saliba and the others.
Thus issues for the prosecution to consider in determining the reasonableness of instituting the prosecution against Mr Cusens included:
1. He was the President of the Mt Druitt Chapter of Rebels Motorcycle Club, thus he has a reason to be at the club and, one would have thought, authority to turn off the CCTV system and organise "meets", or meetings, at the clubhouse.
2. There was no direct evidence of his knowledge of the fact of an 'ambush' of Mr Christian. It was to be inferred, but had to be inferred beyond reasonable doubt. Particularly, what had to be inferred was that the accused knew that Saliba and others were going to discharge a firearm at the victim.
3. In considering whether it was open to draw the inference, putting aside no relevant admissions by Cusens there were a number of representations of Cusen's shortly after the event and the days that followed of bewilderment and ignorance as to what happened.
4. The prosecution ought to have known, although it was not admissible against Mr Cusens, that Mr Mujuevic in contact with other people gave no indication before or afterwards of Cusens having knowledge about what was to happen or what had happened.
5. There was no evidence of advance or subsequent contact with Cusens by the 3 alleged main players
6. The alleged attackers were ( or had been)members of another Chapter of the Rebels with which the applicant had no direct connection.
7. There was no evidence of motive or knowledge of motive implicating the applicant.
The fact that there was a prima facie case is not a basis necessarily for it being reasonable to institute proceedings. The problem was that it was barely a basis for a prima facie case, in circumstances where after the evidence in totally unguarded moments, which the prosecution had access to the accused was making representations entirely inconsistent with having prior knowledge of the events and no knowledge of the events afterwards. His communications with Mujuevic after the event indicate a lack of knowledge of what occurred without any indication from Mr Mujuevic that Cusens ought to have known what happened.
Suspicion may have been reasonably held about Mr Cusens but there were significant gaps in the evidence that had to be taken into account by the prosecutor. Particularly powerful evidence of collateral conduct and representations inconsistent with relevant knowledge required to prove guilt. Although there was no fault on the part of the prosecutor, who in the conduct of the proceeding acted with diligence , skill and fairness at all times( in my view to the benefit of the accused), there was to be considered by him, admittedly with the 'hindsight' required as set out in the authorities earlier cited, consideration of the fact that there were gaps in the case against this applicant and as well that inferences consistent with guilt had to compete with inferences inconsistent with guilt .Suspicion as to his knowledge required to prove guilt was never to be enough.
Conclusion
In all these circumstances I am relevantly satisfied by regard to s.2 and 3 that a certificate under the Act should not be issued to Mr Saliba, but that a certificate under the Act should be issued to Mr Cusens. I so order.
[2]
Amendments
31 January 2018 - Minor spelling error corrected.
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Decision last updated: 31 January 2018