HEADNOTE
[This headnote is not to be read as part of the judgment]
In 2014, Wassim Tiriaki (the applicant) was found guilty by a jury of the murder of Matthew Hedges. Mr Hedges was hit in the chest by a single gunshot fired from a revolver through a loungeroom window at his home at Chester Hill. Mr Hedges had been near the window when the shot was fired at close range, inflicting a fatal wound. The co-accused, Salim Tabbah, was found guilty of manslaughter.
During the proceedings on sentence, there was no issue between the parties that, given the evidence and the two verdicts reached, the jury was satisfied that it was the applicant who fired the fatal shot. The trial judge, in sentencing the applicant, found that he shot the deceased intending to either kill him or to inflict grievous bodily harm. The applicant was sentenced to 28 years' imprisonment with a non-parole period of 20 years.
When sentencing Mr Tabbah, the trial judge was satisfied that the jury found that Mr Tabbah was with the applicant; that the two offenders were party to a joint criminal enterprise to break and enter Mr Hedges home, intending to commit a robbery; that Mr Tabbah had contemplated that the applicant intended to threaten Mr Hedges with the gun, which he knew might be loaded; or had contemplated the possibility that he applicant might discharge the gun. However, the jury's verdict of manslaughter reflected that it was not established beyond reasonable doubt that Mr Tabbah intended Mr Hedges to suffer death or serious injury. Mr Tabbah was sentenced to 14 years' imprisonment with a non-parole period of 10 years.
The Crown case at trial against both accused was circumstantial. The revolver, gloves, tape, two hoodies, and face masks were found in the applicant's brother's bin. DNA on these items was matched to the applicant and Mr Tabbah. There were no fingerprints found on the revolver, however DNA from the trigger/trigger-guard was matched to the applicant.
Both the applicant and Mr Tabbah gave sworn evidence at trial that they had nothing to do with the shooting. The applicant gave evidence that he was not in the vicinity of the shooting on the night, but was instead alone at his brother's house. He gave an explanation as to how his DNA was found on the revolver and other items in the bin.
In 2021, Mr Tabbah swore an affidavit that it was he, not the applicant, who had fired the shot, killing Mr Hedges. He had informed a solicitor in 2016 that he was the shooter. He had also told a prison chaplain in 2019, and a psychologist in 2020 that it was he who was responsible for killing Mr Hedges.
The reasons advanced by Mr Tabbah for his confession to being the shooter were his Islamic faith, the injustice to the deceased's family, the applicant's wrongful conviction, and his desire to start a fresh life by telling the truth. He acknowledged that he had given false evidence at the trial and faced the possibility of further criminal proceedings.
The applicant appealed his conviction of murder on the ground that there had been a miscarriage of justice by reason of the absence at trial of the fresh evidence of Mr Tabbah. The applicant sought that his conviction be quashed and a new trial ordered.
Mr Tabbah gave evidence in the Court of Criminal Appeal and was cross-examined.
The main issues on appeal
(1) Whether Mr Tabbah's evidence was 'fresh evidence';
(2) If so, was his evidence 'apparently credible or capable of belief';
(3) Was it a significant possibility that if Mr Tabbah had given the fresh evidence at trial that the applicant would have been acquitted of murder; and
(4) Was there a miscarriage of justice, notwithstanding the applicant's testimony in the trial that he had not been to the deceased's home and was not part of a plan to kill or rob the deceased.
Ratten v The Queen (1974) 131 CLR 150; Lawless v The Queen (1979) 142 CLR 659; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Rogerson v R, McNamara v R [2021] NSWCCA 160, referred to.
The Court of Criminal Appeal unanimously allowed the applicant's appeal, quashed the conviction of murder, and ordered a new trial.
As to issue (1)
Although Mr Tabbah's evidence was in existence at the time of the trial (if he had not committed perjury), the applicant could not have anticipated in the preparation of his case that Mr Tabbah would admit that he was present at Chester Hill and shot the deceased. Mr Tabbah's evidence was fresh evidence: [176]-[177] (Price J); [261] (Ierace J); [267] (McNaughton J).
As to issue (2)
This was an evaluative test of the fresh evidence. Mr Tabbah's testimony during the trial was deliberately false and was to be approached with caution. A number of matters detracted from the honesty and reliability of Mr Tabbah's reasons for his fresh evidence, including his appeal against the severity of his sentence for manslaughter. There were inconsistencies in his accounts about the collection of the gun and the events after the shooting. His accounts of the shooting were generally consistent, however there were differences. All of these matters raised questions about Mr Tabbah's credibility. However, Mr Tabbah's violent criminal history, intermittent explosive disorder and post-traumatic stress disorder provided support for his version of events, as did his exposure to further proceedings. Mr Tabbah's evidence that he shot the deceased was capable of belief: [178]-[234] (Price J); [266] (Ierace J); [269] (McNaughton J).
David and Cody v The King (1937) 57 CLR 170; [1937] HCA 27; Gallagher v The Queen (1986) 160 CLR 392; 20 A Crim R 244; [1986] HCA 26; Tabbah v R [2019] NSWCCA 324, referred to.
As to issue (3)
Mr Tabbah's fresh evidence was to be evaluated in the context of evidence given in the trial, which includes the applicant's evidence. The applicant's argument that the fresh evidence should be evaluated on the basis that his evidence at a retrial would be given in accordance with Mr Tabbah's evidence was rejected. If Mr Tabbah's evidence that it was he who shot the deceased had been adduced at the trial, it would have been embraced by the Crown Prosecutor and the jury. The exposure to further criminal proceedings and lack of discernible motive to lie would enhance in the minds of a reasonable jury that it was a real possibility that Mr Tabbah was the shooter, notwithstanding the inconsistencies and lack of veracity in his version of events before and after the discharge of the weapon. There was a significant possibility that the jury, acting reasonably, would have acquitted the applicant of murder: [235]-[257] (Price J); [265]-[266] (Ierace J); [269] (McNaughton J).
Craig v The King (1933) 49 CLR 429; MRW v R [2011] NSWCCA 260, referred to.
As to issue (4)
The Crown's argument that there was no unfairness to the applicant because of the forensic decisions he made at the trial was outweighed by the significance of the fresh evidence. There has been a miscarriage of justice: [258]-[259] (Price J); [266] (Ierace J); [269] (McNaughton J).
Ratten v The Queen (1974) 131 CLR 150, considered.