Sinai v R

JUDGMENT

1. BEECH-JONES CJ at CL: On 23 January 2018, at around 3.35pm, Ho Ledinh was sitting at the front of the "Happy Cup" café in City Plaza, Bankstown. CCTV footage captures the moment when Arthur Keleklio shot and killed Mr Ledinh at close range with a pistol. [1] About a month prior to the applicant's trial, Mr Keleklio pleaded guilty to the murder of Mr Ledinh.
2. On 8 June 2021, the applicant, Abraham Sinai, was arraigned before R A Hulme J and a jury panel on an indictment that charged him with the murder of Mr Ledinh. He pleaded not guilty. The trial ensued. The Crown alleged that Mr Sinai was a party to a joint criminal enterprise with Mr Keleklio to murder Mr Ledinh. On 28 June 2021, a jury found the applicant guilty.
3. On 25 February 2022, his Honour sentenced Mr Keleklio to imprisonment for 27 years with a non-parole period of 20 years and 3 months (R v Keleklio; R v Sinai [2022] NSWSC 62 at [125]; "Sinai"). His Honour sentenced to the applicant to imprisonment for 30 years with a non-parole period of 22 years and 6 months (Sinai at [124]).
4. The applicant now seeks leave to appeal against his conviction. His sole ground of appeal is that the jury's verdict was unreasonable and cannot be supported having regard to the evidence. For the reasons that follow, I would reject the ground of appeal. I would grant the applicant leave to appeal but dismiss the appeal.

The Trial

1. No complaint was made on appeal about R A Hulme J's directions or conduct of the trial. His Honour's sentencing judgment has an accurate description of the Crown case.
2. His Honour noted it was the Crown case that the applicant participated in the joint criminal enterprise by: (a) planning the murder; (b) "meeting with Mr Keleklio shortly before the shooting and providing him with items and information of relevance"; and (c) "having in place for Mr Keleklio the means of fleeing the scene" (Sinai at [45]).

Motive

1. Although proof of a motive on the part of the applicant for involvement in the killing of Mr Ledinh was not an essential part of the Crown case, there was a reasonable body of evidence adduced by the Crown on that topic.
2. Mr Ledinh was a co-owner of the Happy Cup café. Mr Ledinh's wife, Thi Huong Ngo, told the jury that his co-owner ("Tri") was a "big drug dealer" and the café was used to launder money with Mr Ledinh collecting debts for Tri. [2] Ms Ngo also said that Mr Ledinh had financial difficulties and, by December 2017, had decided to sell the café while Tri was in jail facing drug supply charges. Ms Ngo said that Mr Ledinh retained money from the proceeds of his sale.
3. Another witness, Thang Duc Nguyen ("Thang"), gave evidence of an occasion in 2017 at the Happy Cup café when Mr Ledinh was engaged in a heated phone conversation in which Mr Ledinh demanded the payment of money. [3] Thang said that, after the conversation ended, Mr Ledinh told him, "Khai owed the money, but he did not repay". [4] Mr Ledinh then arranged for Thang to drive Tri to Khai's house so Tri could get the money, but he did not make the journey. [5]
4. His Honour noted that Mr Dang Chau Nguyen ("Dang") gave evidence that he met "Khai" in October 2017. Dang said that around a month later he was introduced to a friend of Khai's who was of Islander appearance, had a big build, was about 175cm tall and had a gold tooth. [6] This friend had the nickname "Sniper" and described himself as Khai's "right-hand man". [7] This friend told Dang that, if issues could not be resolved on behalf of Khai, "things could get ugly". [8] The applicant's cousin, Fetuiai Siloi, gave evidence that the applicant went by the nickname "Sniper". [9] Mr Siloi's evidence, taken with the similarity between Dang's description of the man he met and the applicant's appearance, warranted the Crown to submit that the applicant was the friend of Khai's he had met.
5. About a month after the murder, police seized $126,000 in cash when three cars en route to Victoria were stopped and searched (Sinai at [13]). One of the cars was driven by the applicant and the others were driven by his relatives. On 14 July 2018, the applicant was covertly recorded complaining, "I got pulled up on the way to Melbourne and they took a hundred and twenty-six thousand off me in cash". [10] The Crown contended this was an admission by the applicant that the amount seized was his funds. The Crown submitted that the funds could have represented the applicant's payment for his involvement in the murder of Mr Ledinh.
6. It was accepted that the evidence led by the Crown was incapable of definitively establishing a motive on the part of the applicant to participate in the murder of Mr Ledinh (Sinai at [14]). At trial, and in this Court, the applicant sought to rely on Ms Ngo's evidence as evidence supporting the likelihood that many other people had a motive to kill Mr Ledinh.

Contact Between the Applicant and Mr Keleklio Prior to 23 January 2018

1. In his evidence, Mr Siloi said that he lived with the applicant and his family for around three months from November 2017. [11] He said he met Mr Keleklio at the applicant's home on three occasions. [12]
2. The first occasion was in early December 2017 when Mr Keleklio arrived and told Mr Siloi that he was seeking work in Mr Sinai's furniture removalist business. [13] The applicant was not home. [14] Mr Siloi said he was "pretty sure" the second occasion was before Christmas in 2017. [15] Mr Siloi recalled that he witnessed the applicant using "jumper leads" to start Mr Keleklio's car. [16] The third occasion was on 22 January 2018 (the night before the murder of Mr Ledinh) when Mr Keleklio turned up asking for Mr Sinai. [17] The applicant was not home. [18] Mr Siloi sent a text message to the applicant at around 9.45pm which stated, "Cuz Afa's at home". [19] (It was accepted that "Afa" was a reference to Mr Keleklio.) The applicant replied at 9.48pm and texted, "okay". [20]
3. The Crown tendered a schedule that recorded contact between telephone numbers associated with the applicant and Mr Keleklio. [21] The schedule showed telephone contact between the applicant and Mr Keleklio on 13 January 2018, [22] 15 January 2018 [23] and numerous calls on 16 January 2018. [24] There appear to be numerous attempts by the applicant to contact Mr Keleklio on 17 January 2018 [25] and one attempt on 18 January 2018. [26] The schedule also shows numerous contacts between a telephone number associated with Tua Pasui and a number associated with the applicant and between the number associated with Tua Pasui and the number associated with Mr Keleklio. The balance of the evidence in the trial suggests that Mr Keleklio and the applicant used other electronic devices to communicate which the investigating police did not locate.

The CCTV Footage of 23 January 2018

1. The police investigating the murder of Mr Ledinh obtained CCTV footage taken on the afternoon of 23 January 2018 from numerous cameras in the central Bankstown area. Tendered at the trial was a compilation of that footage arranged in chronological order which showed the movements of Mr Keleklio to the Happy Cup café, his shooting of Mr Ledinh and subsequent escape to a location where a Nissan "Elgrand" van was parked which drove him away from the scene. [27] The van had dark windows. [28] It was driven by the applicant's wife, Analosa Ah Keni. The applicant's sister, Keziah Knowles, was a passenger. The Crown contended that the applicant was a passenger in the backseat of the van. The CCTV footage also showed the movements of the van before and after the shooting. [29] The jury were also provided with an 80-page summary of the CCTV footage that showed the time, a copy of the image, the camera that took the image and what the Crown contended the image depicted [30] along with colour copies of 634 stills taken from the CCTV footage marked with the correct time (within a plus or minus 59 second range). [31]
2. There was also tended a large map of the Bankstown area depicting the streets in the area, the critical locations as well as the location of the CCTV cameras from which the CCTV footage was taken. The following map is derived from that exhibit. The map is not to scale, certain streets and lanes have been omitted and the layout of some of the streets has been simplified:
3. The CCTV footage shows Mr Keleklio leaving his home in Hammondville in his black Mitsubishi Lancer at around 2.27pm. [32] Just before 3.15pm, his car can be observed driving south past a driveway at 2 Leonard Street, Bankstown. [33] Shortly afterwards, Mr Keleklio walks past the driveway in a northerly direction wearing a yellow hi‑vis shirt and carrying a cloth bag. [34] Leonard Street runs in a north-south direction. In the northerly direction, it terminates at a T‑intersection with Stanley Street, which runs in an east-west direction. The T‑intersection is approximately 600m southeast from the Happy Cup café.
4. From about 2.38pm, the CCTV footage shows the movement of the Elgrand van. At 2.39pm, the van is seen driving north on East Terrace, Bankstown. [35] East Terrace runs north-south and is to the east of the City Plaza where the Happy Cup café is located. The van then turns around and drives south back down East Terrace. [36] At 2.40pm, it stops on the eastern side of East Terrace just south of a St Vincent de Paul shop near the intersection of East Terrace and South Terrace. [37] The van remains at that location until 2.44pm when it continues south down East Terrace. [38] No one is seen getting in or out of the van while it is stationary.
5. The CCTV footage shows the movement of the van driving south down East Terrace, west into Raymond Street and north into Restwell Street before turning east into Bankstown City Plaza. [39] At 2.46pm, the van can be seen driving past the Happy Cup café. [40] The van brakes as it passes over a raised pedestrian crossing. [41] A few metres after the crossing, the brake lights illuminate again as it passes adjacent to the Happy Cup café where Mr Ledinh is sitting. [42]
6. The Crown contended that the van was undertaking surveillance of Mr Ledinh's location for the carrying out of his murder. In this Court, counsel for the applicant, Mr Woods, submitted there was nothing unusual about the braking of the van given the heavy traffic on the street at the time. [43] I accept that the braking does not demonstrate surveillance was being undertaken, although it was at the very least consistent with surveillance occurring. There is no doubt that the occupants of the van would have had a clear view of Mr Ledinh outside the café. [44] I return to this topic below.
7. After driving past the café, the van returns to East Terrace and at around 2.53pm parks at the same location near the St Vincent de Pauls shop it had parked at earlier. [45] At around 2.55pm, the front passenger door opens and a person alights. [46] This appears to be Ms Knowles. The van drives south on East Terrace around a minute and a half later. [47] Ms Knowles returns to the same spot at around 3:01pm [48] and is collected by the van on the western side of East Terrace at around 3:06pm. [49] From this point, the van drives in what R A Hulme J described as a "rather large loop around Raymond Street, Restwell Street, Macauley Avenue and Percy Street, until it came to be proceeding west on Stanley Street at 3.11pm". [50] The van can be seen travelling westward on Stanley Street via a camera located just west of the T‑intersection with Leonard Street. [51] The cameras located to the west of the T-intersection, near the corner of Stanley Street and Restwell Street, do not record the van passing through the intersection. Instead, the next vision of the van is at 3.18pm where it travels east back along Stanley Street towards the intersection of Stanley Street and Leonard Street. [52]
8. The footage noted above at [18] places Mr Keleklio walking in the same location and at the same time as the van, namely approaching the T‑intersection of Leonard Street and Stanley Street and then turning left to walk westwards on Stanley Street. The CCTV footage in Stanley Street west of that intersection depicts Mr Keleklio walking past at 3.21pm. However, at this point, he is carrying a green jacket and water bottle which he did not have when he walked north along Leonard Street.
9. The Crown noted that it had apparently taken Mr Keleklio four minutes to walk the very short distance between the camera on Leonard Street noted at [18] and the camera in Stanley Street. It was the Crown case that between 3.18pm and 3.21pm, Mr Keleklio had met the applicant in the van on Stanley Street and received (at least) a green jacket and water bottle. [53]
10. From this point the van drives east along Stanley Street, turns left to drive north along East Terrace then drives past the St Vincent de Paul shop before turning around and parking at 3.22pm in the same location as it had previously. [54] The van was facing south. [55] At 3:23pm, Ms Ah Keni alights from the front driver's side, crosses the road and walks north on East Terrace before returning to the van at 3:26pm. [56] At 3.36pm, Ms Ah Keni and Ms Knowles leave the van. [57] They walk over and enter the St Vincent de Paul shop. [58]
11. In the meantime, Mr Keleklio keeps walking towards the Happy Cup café. He appears to be in possession of a mobile phone [59] and using it to follow a map on a phone application. [60] At around 3.28pm, he steps into an alcove and puts on the green jacket. [61] At around 3:30pm, Mr Keleklio walks through City Plaza past the Happy Cup café on the opposite side of the road where Mr Ledinh is sitting down. [62] Mr Keleklio enters some public toilets. [63] He emerges around a minute or so later wearing gloves. At 3.33pm, he walks back along City Plaza, crosses the street at a pedestrian crossing, shoots Mr Ledinh and flees. [64]
12. The route taken by Mr Keleklio immediately after the shooting is significant. At 3.35pm, he travels east via a series of laneways towards the van parked at East Terrace. This was a completely different direction to the location of his Lancer which was parked to the southeast of the café on Leonard Street (see above at [17] to [18]). As he runs down Stewart Lane (which runs in an east-west direction) he removes his jacket. [65] At the trial, the jury were shown a "walkthrough video" of the route he took. [66] In this Court the Crown contended, and I accept, that "without any apparent hesitation, [Mr Keleklio] took a direct route east from the [Happy Cup] café to the section of East Terrace where the Elgrand had been parked since 3.22pm". [67]
13. At around 3.39pm, Ms Ah Keni emerges from the St Vincent de Pauls shop and walks swiftly towards the van. [68] Around 30 seconds later, Ms Knowles does the same. [69] Ms Knowles enters the van with another person who approaches the van from another direction. At the trial, it was accepted, or at least established, that the person was Mr Keleklio. The van then drives off.
14. The Crown tendered telephone records demonstrating that, between 3:37pm and 3:39pm, there were four telephone calls between a number belonging to a telephone exclusively associated with the applicant and a phone service used by his wife (Ms Ah Keni). [70] Of the four calls, only the last one was successful. [71] It resulted in communication between the two callers in the form of a conversation that lasted six seconds. [72] Each of the four calls were routed through a cell tower in Raymond Street, Bankstown, which was about 200m to the southwest of the St Vincent de Paul shop. [73] A technical specialist from Optus told the jury that a mobile phone will transmit a telephone call through "the strongest base station that it can detect at the time". [74] He said it was "very unlikely" that any of the handsets associated with the calls was in Liverpool. [75] In addition, the call records show that a telephone call made from the number associated exclusively with the applicant at 2.41pm was routed via a cell tower in Raymond Street, Bankstown. [76] At that time, the van was also parked near the St Vincent de Paul shop in East Terrace (see above at [19]). Three other calls made by that number between 12.12pm and 1.32pm were routed via cell towers in Liverpool West, Liverpool and Casula, which are consistent with the applicant travelling from his home in Liverpool to Bankstown in the van. [77]
15. The Crown contended that the four telephone calls involved the applicant calling Ms Ah Keni from the van in an attempt to tell her to return from the St Vincent de Paul shop as the applicant knew Mr Keleklio was approaching and was about to enter the van.

Events After the Shooting

1. Ms Ah Keni's uncle, Mr Mika Ah Keni, was called by the Crown. He said that on the afternoon of 23 January 2018, the applicant arrived at his home at "around 3 or something in the afternoon" [78] in a silver Commodore. The applicant asked him whether he could "drop off" one of his friends. [79] Mr Ah Keni agreed. The applicant accompanied Mr Ah Keni, who drove the Commodore, to Rose Street, Liverpool where a man he did not know entered the car. [80] The applicant lived in Rose Street, Liverpool. [81] The applicant left the Commodore and Mr Ah Keni drove the man to a street in Liverpool which he later identified as Bigge Street. [82]
2. Mr Ah Keni said he received a message later that afternoon to return to the applicant's home in Rose Street. [83] When he arrived, the applicant entered the Commodore, which was still being driven by Mr Ah Keni. [84] The applicant told Mr Ah Keni that they had to return to Liverpool to pick up the same man. Mr Ah Keni returned to the place where he had earlier dropped the male off. [85] They waited for three minutes before the male got into the vehicle. [86] The applicant then told Mr Ah Keni to drive to Bankstown to pick up the man's car. [87] Both the applicant and man sat in the back seat.
3. The applicant gave Mr Ah Keni directions as to where he should drive before later directing him to stop. [88] The man left the vehicle and Mr Ah Keni drove the applicant home.
4. Mr Ah Keni took police to the location where he had dropped the male at the applicant's direction. It was on the northern side of Stanley Street about 20m east of Leonard Street. [89] The CCTV footage captured the silver commodore at about 5.41pm on 23 January 2018 in Restwell Street near the intersection of Stanley Street. [90] The footage also captured Mr Keleklio's Lancer being driven south down Leonard Street at 5.46pm. [91]
5. The Crown contended that the man driven by Mr Ah Keni that afternoon was Mr Keleklio. That does not appear to have been disputed. In any event, the inference that the man in the car was Mr Keleklio is overwhelming. Mr Keleklio had driven his Lancer to Leonard Street earlier that afternoon. He had been driven away from central Bankstown earlier that day in the van.

Other Evidence Concerning the Applicant's Presence in the Elgrand Van on 23 January 2018

1. The trial judge directed the jury that they could not be satisfied of the applicant's guilt unless they were satisfied beyond reasonable doubt that the applicant was in the Elgrand van. [92] The telephone records described above (at [29]) was strong evidence to that effect. However, there was other evidence on that topic.
2. Ms Ah Keni gave evidence at a pre-trial hearing on 7 June 2021. (Presumably this evidence was the subject of the ruling in R v Sinai (No 4) [2021] NSWSC 779.) She was later called to give evidence at the trial. In her evidence before the jury, Ms Ah Keni said that only she and her sister-in-law (Ms Knowles) drove to Bankstown on 23 January 2018. [93] She said she had seen Mr Keleklio once but could not remember how she came to meet him. [94] She denied that anyone else entered the van on that day. [95]
3. The Crown applied for, and was granted, leave to cross‑examine Ms Ah Keni under s 38 of the Evidence Act 1995 (NSW). Ms Ah Keni agreed that on 7 June 2021 she told the Court that the applicant also travelled with her and Ms Knowles in the Elgrand van on 23 January 2018 but denied that evidence was true. [96] She also agreed that she had told the Court on 7 June 2021 that when she left Bankstown in the van she, Ms Knowles, the applicant and Mr Keleklio were present in the van but again denied that evidence was true. [97] However, Ms Ah Keni agreed that Mr Keleklio was in the van when they left Bankstown, [98] although she said she only realised he was there once she started driving "[b]ecause he asked me and my sister-in-law [i.e. Ms Knowles] for a ride". [99] She said she could not recall whether she received a call from the applicant at 3.39pm that lasted for six seconds. [100] She denied giving false evidence to protect her husband. [101]
4. Under cross‑examination by Senior Counsel for the applicant, Ms Ah Keni recounted driving around Bankstown and showing Ms Knowles her "favourite kebab shop" [102] and "favourite cheesecake shop". [103] Ms Ah Keni also stated that she went into the cheesecake shop in South Terrace with Ms Knowles and got a coffee, [104] although the Crown contended that the CCTV footage captured Ms Keni leaving the van by herself. Ms Ah Keni said that the evidence she gave on 7 June 2021 was a "lie" which she "didn't mean to tell" but she was "stressed". [105]
5. Ms Knowles was called in the defence case. [106] She said she came to Australia from New Zealand in January 2018. Ms Knowles said that on 23 January 2018, Ms Ah Keni drove her to Bankstown to visit relatives but "showed [her] around Bankstown as well". [107] Ms Knowles said, "it was just myself and Analose [i.e. Ms Ah Keni]." [108] Ms Knowles said she was shopping in the St Vincent de Pauls shop with Ms Ah Keni when she realised Ms Ah Keni was no longer there. [109] Ms Knowles rang Ms Ah Keni, who said she was already outside. Ms Knowles said that as she was getting into the van, "a guy approached us" and asked for a lift. [110] Ms Knowles said the van drove to Liverpool where the man got out. [111] Ms Knowles said the applicant had left his home about an hour before she and Ms Ah Keni drove to Bankstown. [112] Ms Knowles next saw the applicant at around 7.00pm. [113] The Crown prosecutor attacked Ms Knowles' credibility in cross‑examination. She was asked to explain why the van was effectively "driving around in circles" around suburban streets in Bankstown. [114]
6. On 3 August 2018, the police recorded a conversation between the applicant and his cousin, Tolo Fiatau. [115] The jury heard the recording and were provided with a transcript of the relevant part, which was as follows: [116] "Applicant: You know that time the car was here? We need the car. You know what I mean? You know what I mean? Things like that. You know, he tells me that he's made some good money with James … Applicant: See what needs to be sorted out. Yep Child: (IND) just cleaning up the mess Dad Fiatau: And the (IND) like, the car they got away on that got away on 'em. They put it on a tow-truck and the tow-truck towed it out and they linked it to all these other cars and - - - Applicant: They're onto it man Fiatau: Six different cars they reckon Applicant: They're onto it man. 'Cause it's all on camera Fiatau: Yeah. All CCTV caught everything … Fiatau: Jesus man. CCTV. Applicant: That's why I sticked to the van. You don't know who's (INDECIPHERABLE) (underlined italics in original and related to words translated from Samoan; bold italics emphasis added)
7. The Crown contended that the bold italicised words were an admission by the applicant that he remained inside the Elgrand van to avoid his face being captured on CCTV. [117] At the trial, there was a dispute about whether those words were accurately recorded. On behalf of the applicant, it was submitted that he said, "that's why I stick to the van", being a preference to a van as a type of vehicle to purchase or own. [118]
8. The Crown called a police officer who had reviewed hundreds of hours of the applicant talking in conversations recorded by listening devices and intercepted phone conversations. [119] The officer said she could recognise the applicant's voice. [120] The officer also said she had listened to the conversation extracted above at [41] between 20−40 times for the purpose of preparing the transcript and transcribing it as set out above. [121] In cross-examination, the officer accepted it was possible that the applicant said "[t]hat's why I stick to the van" or "[t]hat's why I'll stick to the van", but added that she "believed what [was] contained in the transcript" was accurate. [122]
9. Counsel for the applicant called Mr Fiatau, who gave the following evidence: [123] "Q. What did he actually say to you about 'sticking with the van'? A. That he would stick to the van because of the back seats [in the Nissan Elgrand], that there was - they were big."
10. In cross‑examination, Mr Fiatau agreed that the references to "cleaning up the mess" and "[t]hey're onto it man" in the above extract were to the killing of someone else and not the sourcing of a van for the applicant's family. [124] He was then asked: [125] "Q. He said then, didn't he, 'That's why I sticked to the van', he said that, didn't he? A. Yes. … Q. [Is there] anywhere in [the transcript] where you say that you understood [the applicant] to be talking about purchasing the van for the family? A. Not on here, no."
11. The Elgrand van was seized from an address in Chipping Norton at 3.50pm on 6 March 2018. [126] At 4.28pm that day, a telephone call was recorded between the applicant and Ms Ah Keni in which he told her, "[t]hose guys in Blue have gone to Georgie's house" and "[t]hey're going to take the car". [127] Ms Ah Keni asked, "[w]hat car", to which the applicant replied, "[t]hat car. The ca[r]". [128] In another call 10 minutes later, Ms Ah Keni said to the applicant, "I don't know why the fuck they've taken the ca[r] for". [129] The applicant replied, "I think it may have been caught on a camera." [130]

Directions

1. One relevant component of the trial judge's directions has already been noted (at [36]). The effect of His Honour's directions to the jury was that, even if they were satisfied beyond reasonable doubt that the applicant was present in the van, before they could convict the applicant, they still had to be satisfied beyond reasonable doubt of three matters. [131] The first was that Mr Keleklio murdered Mr Ledinh. [132] The second was that the applicant and Mr Keleklio had a plan or agreement to murder Mr Ledinh. [133] The third was that the applicant participated in some way in the plan for Mr Keleklio to murder Mr Ledinh. [134] The two matters identified as constituting the applicant's involvement prior to the shooting was the provision of the green jacket that Mr Keleklio wore and making arrangements for his escape from East Terrace. [135]

The Appeal

1. As noted, the sole ground of appeal against conviction is that the verdict is unreasonable and cannot be supported having regard to the evidence. [136] (Criminal Appeal Act 1912 (NSW), s 6(1)).
2. The authoritative test for this ground of appeal was articulated in M v The Queen (1994) 181 CLR 487 at 493−495 per Mason CJ, Deane, Dawson and Toohey JJ; [1994] HCA 63 ("M v The Queen"). This Court must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (ibid at 493). In doing so, this Court must pay full regard to the "consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence" and "the consideration that the jury has had the benefit of having seen and heard the witnesses", although "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred" (ibid at 493−494).
3. The Crown case against the applicant was circumstantial. It follows that the jury could not return a verdict of guilty unless the proven circumstances were "inconsistent with any reasonable hypothesis other than the guilt of the accused", that is, unless guilt was the only rational inference in the circumstances (Barca v The Queen (1975) 133 CLR 82 at 104 per Gibbs, Stephen and Mason JJ; [1975] HCA 42, citing Peacock v The King (1911) 13 CLR 619 at 634; [1911] HCA 66 and Plomp v The Queen (1963) 110 CLR 234 at 252; [1963] HCA 44). The position is the same as this Court. However, as was stated in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 ("Baden-Clay") at [47]: "For an inference [consistent with innocence] to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence'. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal." (citations omitted)
4. At the outset, five matters should be noted.
5. First, the evidence overwhelmingly demonstrates that Mr Keleklio was aware Mr Ledinh was outside the Happy Cup café as he walked (directly) towards it prior to the shooting i.e. he received advance notice of Mr Ledinh's presence.
6. Second, the evidence overwhelmingly demonstrates that, at some point prior to the shooting, Mr Keleklio had made arrangements for his escape by walking to the location where the Elgrand van was located and being driven away. The CCTV footage shows him walking and running directly to that location, which was well away from where he had parked his car (see above at [27]). In his written submissions, the applicant submitted it was a "real possibility that it [was] just a coincidence that Mr Keleklio, without pre-arrangement, saw a vehicle which he recognised, saw the applicant's wife [Ms Ah Keni] and took the chance to get a lift away from the Bankstown CBD". [137] That submission was wisely abandoned on appeal. [138]
7. Third, the evidence demonstrates that, between the time when Mr Keleklio parked his car and the time he shot Mr Ledinh, he was handed (at least) a green coat which he wore during the shooting. The location of this handover was within an area between the intersection of Leonard Street and Stanley Street and the intersection of Stanley Street and Restwell Street. The Elgrand van was in that area at the time of the handover (see above at [23]−[24]).
8. Fourth, the (undisputed) evidence of Mr Siloi establishes that the applicant and Mr Keleklio knew each other and spoke the night before the killing (see above at [13]−[14]).
9. Fifth, the evidence of Mr Ah Keni establishes that the applicant arranged for Mr Keleklio to be driven back to his car (i.e. the Lancer) later in the afternoon of 23 January 2018 after he had shot Mr Ledinh (see above at [31]−[35]).
10. Both at trial and on appeal, it was contended that the CCTV footage of the van's passing the Happy Cup café did not of itself establish that surveillance of Mr Ledinh was being conducted. [139] As noted, I agree that the van's movement along a busy street does not unequivocally demonstrate that either. However, when the first and second of the above matters are considered alongside the van's unusual movements around suburban streets of Bankstown (see above at [22]), it leads to an overwhelming inference that the van conducted surveillance of the site of the shooting that was about to take place.
11. Further, the evidence overwhelmingly demonstrates that the applicant was present in the van on the afternoon of 23 January 2018. [140] The telephone records noted above at [29] strongly suggest that he used his phone to ring Ms Ah Keni to have her return to the van. The coincidence in timing between those calls and the arrival of Mr Keleklio at the location where the van was parked is compelling. The intercepted telephone call noted above at [41] appears to contain a clear admission that the applicant "sticked to the van". The context of that conversation is inconsistent with any suggestion that he and Mr Fiatau were discussing the relative merits of what form of vehicle to buy or own. [141] Instead, as Mr Fiatau conceded, the context was clearly a reference to when the van was caught on CCTV footage.
12. The evidence of Ms Ah Keni and Ms Knowles on this topic are outlined above (at [37] and [40]). Their assertions in evidence before the jury as to the applicant not being present in the van and the purpose of their journey to Bankstown must be rejected. Ms Ah Keni's credit was clearly destroyed by the evidence she gave earlier on 7 June 2021. Further, as already noted, the evidence that Mr Keleklio ran to a pre-arranged spot to escape was overwhelming. This conclusion undermines the veracity of Ms Ah Keni's and Ms Knowles' assertions that their journey to Bankstown (including their passing of the Happy Cup café) was innocuous. Ms Knowles' explanation of the circumstances in which Mr Keleklio spontaneously asked for a lift is absurd given that he had just carried out a killing in broad daylight and had run straight to their car. Was he really running the risk that they might decline his request for a lift from the scene?
13. The applicant's written submissions in this Court mostly set out the points that were made on his behalf to the jury and invited this Court to reconsider them. [142] The submissions emphasised the absence of evidence concerning various matters, namely: (i) the fact the applicant was not at the scene of the shooting and was not shown on CCTV footage at any time; (ii) the absence of any connection between the applicant and any gun; (iii) the absence of any direct connection between the applicant and the green jacket; (iv) the fact the telephone used by Mr Keleklio as seen in the CCTV footage had not been found; (v) the absence of any witness as to the terms of any plan or agreement for the murder; (vi) the absence of any telephone intercept recording the agreement to carry out the murder; and (vii) the absence of any witness (other than Ms Ah Keni) stating the applicant was in the van. [143]
14. None of these matters undermine the strength of the Crown case. As noted, the Crown case was circumstantial. The Crown case took as its premise that the applicant was wanting to avoid being seen and thus had Ms Ah Keni drive through Bankstown in the van. The inference that the applicant was in the van was unavoidable. Once the applicant was placed in the van, given his dealings with Mr Keleklio before and after the shooting, the further inference that the applicant provided, or directed the provision of, the green jacket to Mr Keleklio is equally unavoidable. The fact that the phone used by Mr Keleklio as shown in the CCTV footage has not been found only confirms what the balance of the evidence suggests, namely, that there were other devices that were used to communicate which the investigators could not trace.
15. Many of the points raised on behalf of the applicant concern the apparent absence of any motive on the part of the applicant to be involved in the murder of Mr Ledinh. Thus, the submissions noted there was no evidence of any animosity between the applicant and Mr Ledinh, referred to the relative paucity of evidence of a connection between the applicant and Khai, complained that Khai was not called as a witness and contended there was a lack of evidence of any connection between the cash that was seized (see above at [11]) and the killing of Mr Ledinh. [144]
16. The evidence concerning the motive for the killing is outlined above (at [8]−[11]). As noted, it was accepted at trial and on appeal that the evidence did not demonstrate the existence of a motive beyond reasonable doubt. I also accept that the evidence establishes, or at least leaves open a reasonable possibility, that others may have had a motive to kill Mr Ledinh. However, it is known with certainty that Mr Keleklio killed him and escaped in a van driven by Ms Ah Keni whom he met at a pre-arranged meeting point. My conclusion that the applicant's guilt was so demonstrated does not proceed on the basis that a motive was established and accepts the reasonable possibility that many people may have wanted Mr Ledinh dead.
17. Many of the submissions made to the jury which are relied on in this Court [145] concerned the apparent improbability that the applicant would utilise his wife (and Ms Knowles) in the implementation of a joint criminal enterprise to murder Mr Ledinh. Thus, at the trial, Senior Counsel for the applicant characterised the Crown case as, "[l]et's go and buy some cakes whilst we're participating in a murder". [146] The short answer to this contention and similar complaints is that Ms Ah Keni and Ms Knowles provided a cover for the surveillance of the Happy Cup café and Mr Keleklio's escape. Otherwise, the suggested improbability that the applicant utilised them in this way is inconsistent with the abandonment of the submission noted above (at [53]). On Ms Ah Keni's version of events, she went to Bankstown to "buy cakes" and then helped an assassin escape. It is far more probable this occurred at the direction of the applicant than without his involvement.
18. To similar effect, it was contended that it was improbable that, if the applicant was involved in a "pre-arranged murder with getaway, the applicant would have let his wife [Ms Ah Keni] out to wander off for shopping". [147] It was also submitted that it was improbable that it would have been difficult to contact Ms Ah Keni in the St Vincent de Paul shop if she knew Mr Keleklio was approaching. [148] It was not part of the Crown case that Ms Ah Keni had some pre-arranged knowledge of what the applicant was involved in before she drove off with Mr Keleklio in the back of the van. There is no doubt that, after the applicant made contact with her, she hurried out to the van and gave a lift to a person barely known to her who was an escaping assassin.
19. It was also submitted that it was improbable that, if the applicant had been involved in Mr Ledinh's murder, he would assist Mr Keleklio to return to his car later in the afternoon of 23 January 2018. [149] This point has no weight. After the shooting, Mr Keleklio needed to return his car. The use of a taxi or ride service had the potential to create a witness to him collecting his car. The applicant may have believed that taking him there directly reduced the likelihood of Mr Keleklio being caught.
20. The applicant's principal point was that, even if was established beyond reasonable doubt that the applicant was in the Elgrand van at the time of the shooting, there were at least "several reasonable alternative hypotheses" that were not excluded by the Crown's case, namely that [i] "the applicant simply gave Mr Keleklio a lift and helped him out with something unknown which [Mr] Keleklio was doing that day"; or [ii] "the applicant and Mr Keleklio had agreed that [Mr] Keleklio should collect money from the deceased, even threaten or assault the deceased, or make some other possible arrangement with the deceased which did not extend to murder, and that when the applicant learned what [Mr] Keleklio had actually done he panicked, thus explaining his subsequent actions" (emphasis added). [150]
21. The first of the suggested alternative hypotheses is specious. The suggestion that the applicant only agreed to assist Mr Keleklio "with something unknown" (but presumably not serious) is inconsistent with his conduct in hiding in the back of the van and carrying out surveillance on Mr Ledinh. The second suggested alternative hypotheses is inconsistent with Mr Keleklio's actions. He did not attempt to assault, threaten or even communicate with Mr Ledinh. He just walked up to Mr Ledinh and shot him without hesitation. His actions and the surveillance undertaken by the applicant demonstrate a joint criminal enterprise to murder Mr Ledinh. In oral submissions, it was contended that, if there was a prior agreement to kill Mr Ledinh, then Mr Keleklio would not have brought his own car to the scene. [151] I do not accept this contention. Mr Keleklio had to arrive there somehow and all means of transport carry a risk of detection. Mr Keleklio sought to minimise his car being detected by escaping in another vehicle parked in a different direction. The applicant's arguments raise "mere conjecture" (Baden-Clay at [47]). Otherwise, there was no evidence that the applicant ever "panicked". Mr Ah Keni's evidence suggested the opposite.
22. As noted, the CCTV footage of Mr Keleklio shows him walking directly to the Happy Cup café, walking past it, returning to shoot Mr Ledinh then running directly to the exact location where the van was parked on East Terrace to make his escape. I am satisfied beyond reasonable doubt that the applicant met Mr Keleklio the night before the killing, arranged for his wife to drive him to Bankstown the following day while he was in the back of the van where he could not be detected, met Mr Keleklio as he walked towards the Happy Cup café, provided him with a green coat, conducted surveillance of the Happy Cup café to ensure Mr Ledinh was seated outside, directed the van be parked at a pre-arranged place for Mr Keleklio to escape and later assisted Mr Keleklio to return to his Lancer. In these circumstances, the inference that the applicant was a party to a joint criminal enterprise to murder Mr Ledinh was, and is, overwhelming.
23. Having reviewed the record of the trial, I am satisfied there is not "a significant possibility that an innocent person has been convicted" of murder (M v The Queen at 494).
24. As this ground of appeal is not purely a question of law, it requires a grant of leave. I would grant leave to raise the ground but reject it.

Proposed Orders

1. I propose the following orders: (1) The applicant be granted leave to appeal against his conviction; (2) The appeal be dismissed.
2. WALTON J: I agree with Beech-Jones CJ at CL.
3. PRICE J: Having independently reviewed all of the evidence, I am satisfied that it is not a reasonable possibility that the applicant is an innocent man who has been wrongfully convicted.
4. I have also had the advantage of reading the judgment of Beech-Jones CJ at CL.
5. I agree with the Chief Judge's reasons and the orders proposed.

Endnotes

1. Exhibit E; AB 1052−1062.
2. See Sinai at [8].
3. T 95−96; AB 190−191.
4. T 97; AB 192.
5. T 97−98; AB 192−193.
6. T 111; AB 206.
7. T 111; AB 206.
8. T 111; AB 206.
9. T 121; AB 216.
10. Exhibit Q; AB 1301.3.
11. T 122; AB 217.
12. T 123; AB 218.
13. T 123; AB 218.
14. T 123−124; AB 218−219.
15. T 125; AB 220.25.
16. T 125−126; AB 220−221.
17. T 125−126; AB 220−221.
18. T 125−126; AB 220−221.
19. T 126; AB 49 and 221.
20. T 126−127; AB 221−222.
21. Exhibit Y; AB 1328.
22. Exhibit Y; AB 1330.9.
23. Exhibit Y; AB 1331.1.
24. Exhibit Y; AB 1332.
25. Exhibit Y; AB 1332.
26. Exhibit Y; AB 1333.
27. Exhibit C.
28. Exhibit Z; AB 1337−1340.
29. Exhibit C.
30. Exhibit D.
31. Exhibit E.
32. Exhibit D entry 1; AB 556.
33. Exhibit D entry 62; AB 587.
34. Exhibit D entry 62; AB 587.
35. Exhibit D entries 4−5; AB 558−559.
36. Exhibit D entry 6; AB 559−560.
37. Exhibit D entry 6; AB 559−560.
38. Exhibit C at 05:38.
39. Exhibit C at 07:16.
40. Exhibit D entries 17−18; AB 564−565; Exhibit C at 08:10.
41. Exhibit C at 08:15.
42. Exhibit C at 08:27.
43. Tr 22/03/2023 6.10.
44. Tr 22/03/2023 7.18.
45. Exhibit C at 13:09.
46. Exhibit C at 14:13.
47. Exhibit C at 15:44.
48. Exhibit C at 16:09.
49. Exhibit C at 21:14−21:37.
50. Sinai at [23].
51. Exhibit C at 23:50−24:00.
52. Exhibit C at 24:36.
53. Crown subs at p 8.
54. Exhibit C at 25:50Type equation here.−26:10.
55. Exhibit C at 26:00.
56. Exhibit C at 27:40−27:54.
57. Exhibit C at 37:17.
58. Exhibit C at 37:45; identified at T 38 and T 63.
59. Exhibit C at 28:17.
60. Exhibit C at 28:30−28:35.
61. Exhibit C at 30:42.
62. Exhibit C at 33:23.
63. Exhibit C at 34:50.
64. Exhibit C at 36:08.
65. Exhibit C at 37:10.
66. Exhibit K.
67. Crown submissions at [18].
68. Exhibit C at 38:56.
69. Exhibit C at 39:47.
70. Exhibit Y; AB 1335−1336.
71. Exhibit Y; AB 1335−1336.
72. Exhibit Y; AB 1336.
73. Exhibit Y; AB 1335.
74. T 217.50; AB 312.
75. T 218.27; AB 313.
76. Exhibit Y; AB 1335.
77. Exhibit Y; AB 1335.
78. T 229; AB 324.46.
79. T 230; AB 325.
80. T 231; AB 326.
81. T 231; AB 326.
82. T 233; AB 328.
83. T 233; AB 328.
84. T 234; AB 329.
85. T 234; AB 329.
86. T 234; AB 329.41.
87. T 235; AB 330.23.
88. T 230; AB 235.
89. T 263; AB 358.
90. Exhibit C at 42:10; Exhibit E at 522−523.
91. Exhibit C at 42:33; Exhibit E at 525−533.
92. AB 25.
93. AB 254.
94. AB 254.
95. AB 254.49.
96. AB 261.
97. AB 262.11.
98. AB 262.40.
99. AB 265.
100. AB 278.25.
101. AB 279.28.
102. AB 285.50.
103. AB 286.15.
104. AB 287.
105. AB 292.
106. AB 450.
107. AB 452.38.
108. AB 452.47.
109. AB 454.
110. AB 455.20.
111. AB 456.
112. AB 459−460.
113. Ibid.
114. AB 463−464.
115. Exhibit R; AB 1305.
116. Exhibit R; AB 1308.
117. AB 22.
118. AB 301Type equation here.−302 and 351.
119. AB 349.
120. AB 350.
121. Exhibit R; AB 350.
122. AB 351.26.
123. AB 475.21
124. AB 481.26.
125. AB 482.
126. AB 345; T 250.12 and 268.20.
127. Exhibit T; AB 1313.
128. Exhibit T; AB 1313.
129. Exhibit U; AB 1318.
130. Exhibit U; AB 1318.
131. AB 27.
132. AB 15−16.
133. AB 15.
134. AB 17.
135. AB 18.
136. AB 5.
137. Applicant's submissions at [24(xvii)] and [31].
138. Tr 22/03/2023 at 2.5−2.10.
139. Applicant's submissions at [24(vi)]; Tr 22/03/2023 at 2.40; TR 22/03/2023 at 15.12.
140. Cf applicant's submissions at [24(xi)].
141. Cf applicant's submissions at [24(xv)].
142. Applicant's submissions at [28].
143. Applicant's submissions at [22].
144. Applicant's submissions at [22], [24(ix) and (x)] and [37]−[40].
145. Applicant's submissions at [24(i) and (iii)] and [29]−[30].
146. T 408.15; AB 504.
147. Applicant's submissions at [24(v)].
148. Applicant's submissions at [24(xiii)].
149. Ibid at [24(viii)].
150. Ibid at [28].
151. Tr 22/03/2023 at 18.15 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: 09 August 2023