Tiriaki v R

The applicant's evidence

1. The applicant gave evidence that on 31 December 2011 he was living at Bankstown with his mother, father, and three sisters, plus his brother who sometimes lived there.
2. Following a car accident in 2002, he was admitted to hospital for several hours. He subsequently saw numerous physiotherapists for his back pain. He had "medical attention throughout pretty much my whole teenage life". As at the latter half of 2011, he was in pain when he walked, and was not able to run.
3. In 2011 he was seeing a chiropractor and had treatment for twelve weeks until 20 October 2011, which helped his mobility. By early December 2011 he was working and was able to jog and power walk, but not fully run.
4. The applicant gave evidence of a motor vehicle accident on 25 December 2011, following which he was taken by ambulance to hospital and discharged after four or five hours.
5. Prior to this accident he had not been working "as like a full-time job", as every boss he had would have to excuse him during the daytime as his back would be hurting. He would have trouble sleeping. He wasn't taking medication, but he would smoke pot which would help his back pain and help him sleep. The places he smoked pot included at his brother's house. Following this accident, he was stiff throughout his back for two weeks and he self-medicated.
6. He met Mr Chahal in 2011, who he saw from time to time. They were in contact by phone. Mr Chahal bought and sold cars, which the applicant started working on.
7. He had never met or heard of the deceased, and had never been to the street in which the deceased lived. He had seen Salim Tabbah around the Bankstown area but they had never spoken.
8. On the morning of 30 December 2011, the applicant was at home. He woke up at midday, had breakfast, and "…went down to the garage at mum's house and I was in pain so I was relaxing, playing PlayStation throughout the afternoon". The applicant wasn't able to work, and he had two customers' cars in the backyard of his parent's place which needed to be repaired. He was trying all day to call his panel beater friend to come over and finish the work on the cars, as the customers were waiting for them. He arranged for his cousin Hilal to pick him up from his brother's house at about 2:30am, where he intended to "kick back, get stoned".
9. His sister Sarah dropped him at his brother's house after 10pm. He didn't have any keys to the house so he went to the garage where there were couches. He had taken a laptop and his "special medication" with him. He was on YouTube and surfing the internet all night. The applicant said: "A. I got a phone call at 1.50, 1.40 from Chahal that I missed so I called him back, while I was calling him back, he called me. So on my phone he had - while I'm calling him, he came up that he's calling me. So I answer his phone call and he goes "where are ya?" I'm tell him that I'm at Mohammed's house with my brother, he goes "who's there?" I go, "no one's here". He goes to me, "I'll be there in a minute." He goes "come outside"." [4]
10. He got off the phone and went outside and was walking up the driveway when a dark car, which was either a Commodore or a Falcon, pulled up two houses down from his brother's house. The applicant then described what happened when the dark car pulled up: "A. The headlights turned off, I walked up to it and Chahal jumps out of the back seat behind the driver, he opens the passenger's side rear seat and he goes to me "can you please put these with you?" It was dark at the time, I didn't see what it was. I ended up pulling up in the back seat, ended up grabbing a handful of what I now know was clothes and he jumped in the car, he goes "I'll see you soon. I'll speak to you later" and he took off, done a U‑ey and they took off. Q. Do you recall if he said anything about what you should do with their stuff? A. He goes "I'll leave it with you. I'll pick them up off you soon". Q. And when you lent in to get the stuff, did you notice any pain? A. I was in the pain that I was in throughout the whole day ever since after the 25th. Q. Were you able to now recall what you first saw when you gathered in what was in the back seat? A. What I can now recall? Q. What were you aware of at the time you first grabbed it? A. Jumpers, clearing his back seat, they were picking up girls - I'm not sure." [5]
11. He started walking back towards the garage with the items and he realised the clothing was heavy. He dropped them and looked through one of them and found the butt of a gun. He wrapped it back into the jumper. The applicant was "stoned" and his heart was pumping with adrenaline because of the gun. He then put the items into the bin and closed it and went straight into the garage. He didn't notice what items there were at the time other than the gun. He had placed the items in the middle bin.
12. An hour later he called his cousin to find out where he was and gave instructions on the quickest way to get to his brother's house. His cousin came and the applicant went back to his mum's house in Bankstown, getting there at about 3 or 3:30am. Defence counsel asked: "Q. Did you tell anyone about what had happened when you picked up these items at the request of Mr Chahal, did you tell anyone at all in your family? A. No I didn't. Q. Did you have a conversation with anyone else about it? A. No. Q. Did you talk to Mr Chahal later? A. I spoke to Chahal the day after. I called him up, I go, "Come over my house, mum's house." He came and I go to him, "What the fuck was that?" He goes, "No, it's nothing." I go, "It's at my brother's house, he hasn't even picked it up." He goes, "Don't worry about it. I'll pick it up soon." I told him I left it in the bin and that's it. Q. Were you aware that your brother had called police that day? A. I wasn't aware he called police until after I spoke to Chahal. Q. Did you speak to Mr Chahal again about it? A. I called him to come back and I go to him, "Called the coppers, they've taken the stuff." I go, "Has it been used, like, what's the go with it?" Do you know what I mean? Why? Like, I can't explain it. Q. What did he saying [sic]? A. He goes, "Don't worry about it. Nothing. It's all good. As long as you keep your mouth shut, you'll be right. Don't worry about it. It will be all good." Q. Did you learn at some stage there had been a murder? A. Yes, I did. Q. Did you have a discussion with Mr Chahal about that? A. I asked him, I go, "Has it got anything to do with that?" He goes, "No don't worry, it's got nothing to do with that. I don't know the bloke." Stuff like that. He goes, "Relax, you'll be all right. Nothing will happen." Q. So other than those conversations with Mr Chahal, did you discuss what you'd done on his behalf that morning with anyone else? A. No I didn't." [6]
13. In the days and weeks after 30 December, he spent time either at home or at his mate's shop to see how the cars were going, and with Mr Chahal. He did not become aware that the material he put in the bin at Mr Chahal's request had been linked with the murder of the deceased. He still saw Mr Chahal on a daily basis from 31 December onwards. The applicant kept his "mouth shut" as Mr Chahal had told him to do, and "just went on". The applicant was arrested on 6 March 2012 at home.
14. He said he had told the jury everything. He never went near the vicinity of the deceased's house. He was not one of the two people running north in the CCTV footage.
15. He was asked about the knife on which his DNA was found. He had not seen the knife before and was unable to account for his DNA being on it, but he explained that when he saw the brief he realised the knife was located where the car Mr Chahal was in had pulled up, so he assumed he may have dropped the knife when walking back, but he could not recall. When he went back to his parents' place on the 31st he went to sleep after first speaking to his girlfriend in Greece. He spent the rest of that day in Bankstown.
16. Cross-examination by the Crown Prosecutor included the following: "Q. What do you think it was that [Mr Chahal] wanted you to do with these things? A. Keep them with me. Put them- Q. But why? A. Maybe clean out his back seat. I'm not sure why. Q. Sorry, clean the back seat? A. Yes. Q. At 1.48 in the morning or thereabouts he wanted to clean out the back seat of his car? A. Yes. Q. You seriously say that? A. Yeah, he's always at Sefton Playhouse. I don't know. Maybe he's picking up a girl from Sefton. Or cleaning out the back - I'm not sure why. Q. What did you think you were expected to do with these items? A. Keep them with me in the house, take them inside the garage with me. Q. Why didn't you take them inside the garage with you? A. Like I said, when I was walking I realised it was heavy and placed them - wanted to look through it. Then I felt something was going on, so I looked through it and that's when I found the gun. Q. You've told us that, but why didn't you take them inside the house or the shed as you told us about? A. I don't want stuff like that in the house. It's not- Q. Why did you put it in the garbage bin and not the house? A. It's the closest thing next to me. It's the closest thing to get rid of it. I didn't want nothing to do with it." [7]
17. He was cross-examined in detail about how he collected the items from the back of the car, the moments that followed, and how he then placed them into the bins. He was asked about how he searched through the items before discovering there was a gun amongst the items. He said he had picked up the gun in one hand. He denied that he was making up his evidence to explain why his DNA was on the items.
18. He confirmed his evidence that Mr Chahal had instructed him to keep the items and that Mr Chahal had said he would be back shortly to collect them. He agreed that by putting them in the garbage bin he was effectively getting rid of them and therefore would not have been able to return them to Mr Chahal.

Sarah Tiriaki - Applicant's sister

1. Sarah Tiriaki, the applicant's sister, gave evidence of the car accident in about 2002/2003, when the applicant suffered neck and back injuries. She said that he went to the Back Clinic and to General Practitioners. She would drive him around, as he did not have a licence. She described the applicant's car accident on Christmas day 2011, following which she observed his mobility to be "limited".
2. On 30 December 2011 the applicant had wanted to go to his brother's house after 10pm, so she drove him there. She saw him again the next morning at home.
3. In cross-examination, she said that the applicant's mobility was limited - he would not be able to kneel on both knees because it would be too painful. She had never seen him running. She could not remember what he was wearing when she dropped him at his brother's house.

Jessica Hooper

1. Ms Hooper gave evidence of her relationship with the deceased and his dealings with prohibited drugs.

How the Crown case was left to the jury

1. In respect of each accused, Schmidt J instructed the jury on murder and on an alternative verdict of manslaughter by an unlawful and dangerous act on three bases: 1. The accused's own act 2. Aid and abet 3. Extended joint criminal enterprise.
2. In her summing up, Schmidt J told the jury that the Crown case was circumstantial, that the Crown contended that one of the accused shot the deceased, and the other aided and abetted in that shooting. Schmidt J said: "[The Crown] conceded that the evidence that [the applicant] was the shooter is stronger than that against Mr Tabbah but submitted that the matters on which it relies will satisfy you that one was the shooter and that the other aided and abetted him." [8]
3. On extended joint criminal enterprise manslaughter, the jury was instructed that an essential element of the offence the Crown was required to prove was: "[T]hat the discharge of the gun by [the particular accused] was a possibility that [the other accused] contemplated when agreeing to participate in the attempted break and enter offence."
4. As to aid and abet manslaughter, the jury was instructed that an essential element of the offence the Crown was required to prove was: "[T]hat [the other accused] knew that [the particular accused] intended to threaten [the deceased] with a gun, which he, [the other accused], knew might be loaded.

that with that knowledge [the other accused] intentionally assisted or encouraged [the particular accused] to commit that crime."

The hearing of the applicant's appeal against conviction

1. In this Court, Mr M Thangaraj SC with Mr S Parasingham appeared for the applicant and Mr E Balodis appeared for the Crown.
2. Mr Tabbah's affidavit was read and he gave oral evidence, which included cross-examination by Mr Balodis. The applicant also read the following affidavits: 1. An affidavit of Sara Black, solicitor, dated 14 March 2022; 2. An affidavit of Carmen Huynh, forensic psychologist, dated 19 October 2022; 3. An affidavit of Ahmed Kilani, chaplain, dated 19 October 2022; 4. An affidavit of Sara Black, solicitor, dated 4 November 2022.
3. None of these deponents were required for cross-examination by the Crown.
4. The Crown read an affidavit of Michael Jones, solicitor, dated 14 November 2022.

Affidavit of Salim Tabbah

1. In his affidavit, Mr Tabbah noted that on 26 May 2021, he sent a handwritten letter to the applicant at Lithgow Correctional Centre, which was annexed and marked "ST1".
2. Attached to this letter was a document typed by Mr Tabbah's Legal Aid solicitor, Ms Catherine Hunter, which was then signed by Mr Tabbah and witnessed by a Justice of the Peace at Long Bay Correctional Centre.

Mr Tabbah's letter "ST1"

1. At the beginning of the letter, Mr Tabbah stated that it was being written as an "account of what really happened the night when Matthew Hedges was innocently killed".
2. He listed his reasons for writing the letter as follows: "Firstly after deep reflection regarding my religion, which is Islam, I have understood that injustice in all shapes and forms is one of the worst things a Muslim can do and what greater injustice can someone do than by taking another fellow human's life. As the Quran states, "To kill one innocent life is like you have killed all of humanity and to save one life is as if you have saved all". This understanding greatly affected me even more than I was already affected as every night since this innocent man's life was taken has been filled with sadness, regret, hatred and anger towards myself. The other main reason is the lack of justice I feel the victim's family has received. One of these injustices is the family not knowing what or why this happened to them and their son and they believe Wassim Tiriaki was the one who took their son from them and I feel that if they were to hate or be angry with anyone it must be me as they do not know it was me who accidentally shot their son that night and finally the injustice to Wassim. Even though on a personal level I do not know him too well, as he was a friend of a friend of mine and after our court proceedings we had a physical fight and to be honest even until this day I might have ill feelings towards him but the fact of the matter is this man has been wrongly convicted of something he didn't do which is murder Matthew Hedges. Even if I still believe he must suffer some consequence for his actions as he did agree to come with me and break into Matthew's house and steal his money and drugs but other than this he has no knowledge of me having a gun or that fact that I would have shot Matthew and for him to be convicted of this would be an act of injustice and for me to go home and remain silent on this would be a continuous act of injustice on my part and I am prepared to suffer the consequences if there are consequences if it means I am no longer responsible for another innocent life being wrongly taken."
3. Mr Tabbah stated that he met the applicant through a friend, who he would not disclose the name of "as I feel if I do my life and the life of those I care for will or could be harmed". A debt was owed to this friend by Mr Hedges.
4. The arrangement was that Mr Tabbah "would go to Matthew's house and no one was supposed to be home but there could have been a possibility they would be there or come home while we went there and Wassim would come with me and he would break into the house, get the drugs and money and we would leave." Mr Tabbah stated that he was supposed to go and ensure that the applicant was protected if Mr Hedges or any other occupants returned home.
5. The night of the offending Mr Tabbah met with the applicant and another friend at the applicant's brother's house. He was taken to the house where he saw the applicant. Upon arriving at the home, Mr Tabbah saw face masks and gloves on the table for him.
6. In describing how he came into possession of the firearm, Mr Tabbah stated that as he went to grab his mask, he saw a gun and "instantly I was triggered by paranoia. I don't know what happened to me, all sorts of paranoid thoughts were coming to my mind. The main ones were this guy i.e. Matthew is a drug dealer, he might have a gun or someone there might have one so I panicked and grabbed the gun just to feel safe."
7. Mr Tabbah continued: "I had no intention or thought that I would shoot someone, I just wanted to feel safe and if someone at this house had a gun I could scare them or protect myself from them with it. As I grabbed the gun my friend came over to me and said "What are you doing?" I said, "I need it in case something goes wrong." My friend tried to take it off me but I didn't let him and I said "I won't use it anyway, it's just for show", so he accepted this from me. I grabbed my mask and gloves and jumper and went outside and waited. Shortly after Wassim meets me and say "Are you ready to go? I said "Yes".
8. Mr Tabbah described that he and the applicant then drove to the home of Mr Hedges. As they approached the home, the applicant said "Let me go and you just wait outside", to which Mr Tabbah agreed.
9. Whilst waiting shortly after, Mr Tabbah heard: "…a bang like glass breaking and people saying something. I became shocked and too many thoughts were going through my mind. I ran over to Wassim and immediately my eyes were blazed with a light reflection, reflecting at me. I think maybe now looking back it was the TV light and because the actual light was off in the house it was radiating into my eyes and I have bad eyesight as it is. Then Wassim runs around me or behind me and I see like a person coming at me and it was like something shiny was running at me. I panicked and pulled out the gun and faced it in that direction. As I did this I don't know what Wassim said or if he even said anything but I thought I heard "gun" and then I felt my shoulder get pushed back or maybe it was my head I don't know. Then bang the gun fired and then I heard Matthew which I now know to be, scream a loud scream that I still hear in my dreams today."
10. Mr Tabbah described that he then "froze for a couple of seconds and then ran back to the car. Wassim was panicking going off saying "What did you do? Why did you bring a gun?" I told him to shut up and drive. I didn't know what to say."
11. Mr Tabbah stated that he and the applicant then drove back to the applicant's brother's house. Mr Tabbah stated that "I took off my jumper, face mask and put it on the floor and the gun on top. Then I chucked the gloves on the floor next to them. I then told Wassim to chuck everything out and I walked off outside."
12. Shortly after, the applicant came out and was in shock. Mr Tabbah said, "Don't talk to me and just drop me back in my area", which the applicant did. Mr Tabbah noted he exited the car and did not see the applicant again until he was arrested.
13. Mr Tabbah stated that "from day one I wanted to tell the truth but my lawyer at the time advised me that the truth would not be believed i.e. it was an accident, and I have a better chance at fighting the charge so I took his advice".
14. He went on to say: "I've felt guilty ever since and I've wanted to try and do the right thing for ages but I kept getting different advice from people that was leaving me conflicted. But now I am firm that the truth must come out. I only have just under 1 year to go for Parole and I don't want to go home with this on my head. I want to start a fresh life and a fresh life for me is getting rid of my past if I can and an innocent man will still be in gaol when I get out and that is unjust on my part and a must for me to do the right thing by my religion, the victim's family and Wassim."
15. Mr Tabbah then concluded: "This is the true account of what really happened that night. My memory at times is blurred and jumbled with the exact details of how everything happened and at times I am left confused on exact events but the only thing that is clear in my mind and accurate and I still see this image in my head until today is me holding the gun in the direction of something shiny coming at me and then the gun going off and a loud death scream in the background. This is the only clear fact in my memory out of all the confusing or somewhat confusing memories I have about that night".
16. Mr Tabbah clarified that his fingerprints were not found on the gun as he was wearing gloves. He also noted that no glass was found on his jumper as he was further away from the applicant keeping a look out when the glass was smashed.
17. Mr Tabbah also noted that the applicant had made attempts for him to come forward prior to the trial to tell them this account. Mr Tabbah noted that he did "somewhat threaten Wassim pre-court to keep his mouth shut at the time".
18. Mr Tabbah confirmed in his affidavit that he had obtained independent legal advice and acknowledged the potential legal consequences of writing the letter to the applicant and its use in any appeal proceedings. Mr Tabbah noted "I want to make it clear that the legal consequences of writing the letter are irrelevant to me, and the only important thing is that I tell the truth."
19. Mr Tabbah also acknowledged that he may be required to give evidence in relation to his affidavit and the letter provided to the applicant. He indicated his willingness both to give evidence and to submit to cross-examination.
20. In addition to informing Ms Hunter, Mr Tabbah stated in his affidavit that over the years he had also told his previous Legal Aid Solicitor, Janet Witmer, as well as his psychologist at Long Bay Correctional Centre, Carmen Huynh, of this account of events. He recalled that he had told Ms Witmer this account and her advice was to "tell the truth and say what happened".
21. In the affidavit, Mr Tabbah also supplemented and clarified a number of statements that had been made in the letter.
22. He confirmed that when he first entered the home, he did not see the applicant. He noted he entered the front section of the home with a friend and saw the items waiting there.
23. He noted that he put the gun in the waist of his pants and at this time he did not know where the applicant was. He added that he did not tell the applicant about the gun at that time, or any time before the deceased was shot.
24. In relation to paragraph [97] above, Mr Tabbah added that he pulled the gun from the waist of his pants. He stated that it had been strapped there. He was wearing a shirt and jumper over it. The gun could not be seen. He stated that the time between pulling out the gun and discharging it took only a matter of seconds.
25. In relation to paragraph [98] above, he added that after firing the gun he ran back to the car and put it on the side of his hip, but was not exactly sure where.
26. In relation to paragraph [99] above, he added that when he told the applicant to chuck everything out, he could not remember whether the applicant was wearing gloves. It was dark and he just told him to chuck it out. He did not remember the applicant putting the gloves on and did not see him throwing the jumper, face mask, and gun in the bin.
27. In relation to paragraph [105] above, Mr Tabbah described that while being housed together following their arrest, he told the applicant "if you go against me, it won't be good for you" and to "just fight the charge and see what happens".

Affidavit of Janet Witmer

1. An affidavit was sworn by Ms Janet Witmer on 4 November 2021. Ms Witmer is a solicitor employed by Legal Aid NSW.
2. Ms Witmer stated that in 2016, Mr Tabbah applied for Legal Aid to appeal against both his conviction and sentence. Ms Witmer was allocated the file and assumed carriage of the matter.
3. On 22 June 2016, Ms Witmer attended a video link conference with Mr Tabbah to discuss the progress of his application. Ms Witmer noted that during this conversation, Mr Tabbah became increasingly upset and agitated, then disclosed that he had been the one who had shot the victim, not the applicant. He advised Ms Witmer that he "wanted to set this right".
4. Ms Witmer's handwritten notes, which were later typed up, were annexure "A" to the affidavit. In these notes, Ms Witmer stated "He wants to clear his conscience. He also thinks it is wrong that the family don't know who actually killed their son - and don't understand why - that he [sic] was an accident. He only took the gun along because he was very paranoid that a drug dealer would have a gun and it was for protection - and he didn't mean to - when the victim kept coming towards the window after he had raised the gun to frighten him - he thought the victim must have a gun himself and panicked."
5. In her affidavit, Ms Witmer stated her intentions were to see Mr Tabbah at Goulburn Gaol to take a detailed statement, and then to assign him to a private solicitor to carry the matter forward, as she believed she was likely to be a witness should the matter proceed.
6. The intended visit did not occur as Mr Tabbah contacted her and asked if she would wait until returning from leave as "he needed to clear his head".
7. Ms Witmer next spoke to Mr Tabbah by video link on 10 August 2016. During this conference, Mr Tabbah said that he was still committed to going ahead with "righting the situation". Ms Witmer's notes of this conference were annexure "B" to her affidavit.
8. In these notes, Ms Witmer wrote: "He and the co-accused didn't know each other. It was arranged that the two of them would go there and get the money The coey broke the window and that is why there was glass in his clothes (the ones found in the rubbish bin). Tabbah took the gun because he felt paranoid that the victim, who was a drug dealer would have a gun. He didn't really see much through the window- he thought there were two other people in the lounge, then the victim came running to the window yelling "oi oi oi!" and since the victim was running to the window he thought the victim must have a gun or why would he keep coming. Tabbah put up his hand with the gun and the victim kept running to the window and Tabbah felt sure he must have a gun because otherwise anyone would back away when they saw the gun that Tabbah had. And Tabbah panicked and shot the gun and he heard screaming and panicked and the two of them ran off. He had not told [the applicant] that he had a gun but he told him that if the victim had a gun he had something to protect them. [The applicant] had said before they went he wasn't going to hurt anyone - that no one was to be hurt."
9. Mr Tabbah then requested to be assigned to a solicitor. This request was accepted by Ms Witmer and he was assigned to another solicitor.
10. Ms Witmer did not have any further contact with Mr Tabbah until on or about 16 March 2021, when he telephoned her and said that he still wanted to go ahead with assisting the applicant in having his murder conviction overturned. Ms Witmer informed Mr Tabbah that she would make enquiries and, if possible, for him to be assigned to a private solicitor for assistance and advice. Mr Tabbah's matter was then assigned to Ms Catherine Hunter.

Affidavit of Sara Black

1. Ms Black's affidavit dated 14 March 2022 relates to the applicant's application for extension of time.
2. In her affidavit dated 4 November 2022, Ms Black annexed the following material: 1. A copy of Mr Tabbah's corrective services inmate profile 2. A copy of a letter written by Terry Watts CC Area Manager at Metropolitan Remand and Reception Centre dated 8 August 2013 3. A copy of the Psychology Participant information statement and consent form 4. A copy of the VOTP referral, assessment and treatment manual form 5. A copy of an extract from the document titled 'VRS Time 1 Pre-Treatment' 6. Extracts from the document titled 'VOTP Progress Note' 7. A document titled 'Offence Mapping' 8. Extracts from a document titled 'VOTP treatment manual - thoughts and beliefs' 9. Extracts from a document titled 'Perspective Taking' 10. Extracts from a document titled 'Reflective Journal' 11. A copy of Mr Tabbah's completion certificate for the VOTP program 12. A copy of Mr Tabbah's pre-release report written by Melissa Ryan dated 8 December 2021.

Affidavit of Carmen Huynh

1. Ms Carmen Huynh, employed by the Department of Corrective Services as a Forensic Psychologist in the Violent Offenders Treatment Program ('VOTP'), swore an affidavit on 19 October 2022.
2. Ms Huynh stated that she met Mr Tabbah in July 2020, when he arrived at the VOTP unit at Long Bay Correctional Centre. Mr Tabbah had requested to participate in the program. Upon entering the program, Ms Huynh became one of Mr Tabbah's psychologists.
3. During an interview that occurred between September and October 2020, Ms Huynh noted that Mr Tabbah told her his version of what took place in relation to his offences. Ms Huynh noted that this account differed from what was outlined in the official court documentation.
4. Ms Huynh stated that Mr Tabbah said that he was the one in possession of the firearm and that he had shot the victim out of panic. He said that he accepted responsibility for killing the victim and the court papers which stated that the applicant was the one who shot the victim were wrong.
5. Ms Huynh then sought clinical supervision with a Senior Psychologist on the team. It was ultimately determined that it did not need to be disclosed or taken to the authorities as "it was not uncommon for participants to recount events that were inconsistent with the official documentation".
6. Mr Tabbah told Ms Huynh that it was his intention to present this information to a solicitor and that he wished to clear the applicant's name. Mr Tabbah also requested a referral to the Restorative Justice Unit, in an attempt to speak to the family of the victim. This request was ultimately denied due to the appeal process and the inconsistencies between the official documentation and his version of what took place.
7. Mr Tabbah's treatment was officially completed on 22 December 2021, but he remained in the unit until about April 2022. Ms Huynh stated the intention was for Mr Tabbah to be released on parole in March 2022 from the VOTP program, however his parole was refused.

Affidavit of Ahmed Kilani

1. Mr Ahmed Kilani, employed by the Department of Corrective Services in the Chaplaincy Services branch, swore an affidavit on 19 October 2022.
2. Mr Kilani first came into contact with Mr Tabbah at the Goulburn High Risk Management Unit around March 2015.
3. Upon Mr Tabbah being transferred to Long Bay Correctional Centre in 2018 or 2019, Mr Kilani saw Mr Tabbah "quite a lot".
4. During a session at Long Bay in 2019, Mr Tabbah told Mr Kilani that there was "something he wanted to come forward with, to confess and to get off his conscience".
5. Mr Kilani noted Mr Tabbah had told him during one of these sessions "that he was the one who was responsible for killing the victim in the matter where he was convicted of manslaughter".
6. Mr Kilani stated that "it was something he wanted to make right, and that he knew he could get extra time by coming forward, but that he did not care, as it was something he needed to do". Mr Kilani informed Mr Tabbah that if it was important to him and he was serious about his version of events, that he needed to make peace with it and go through the proper legal channels. Mr Kilani did not keep a record of the conversations with Mr Tabbah.
7. Mr Kilani noted that he spoke with Mr Tabbah about his account a few more times, and in one of the later sessions he was told by Mr Tabbah that he had spoken to his lawyers and sent a letter to the applicant.

Affidavit of Michael Jones

1. In his affidavit dated 14 November 2022, Mr Jones, solicitor for the Office of the Director of Public Prosecutions, annexed the following materials: 1. The applicant's alibi notice 2. An updated bail report of Mr Tabbah 3. Material produced by the Department of Justice at applicant's behest 4. A copy of the VOTP functional analysis interview 5. A document titled 'Offence Mapping' 6. A copy of a handwritten account by Mr Tabbah titled "Index Offence".

The applicant's submissions

1. The applicant submitted that Mr Tabbah's evidence in his affidavit and oral testimony in this Court was fresh evidence that was not available at the trial. The applicant pointed out that Mr Tabbah had explained that he did not tell the truth at the trial because he had a "criminal mentality", even though he knew it was wrong not to say anything about his involvement in the deceased's death.
2. In oral submissions, Mr Thangaraj submitted that "the evidence was patently fresh because it's a sworn admission." [9]
3. The applicant submitted that Mr Tabbah's evidence was credible because of his disclosure to his lawyers at least five years ago; Mr Tabbah did not have a close relationship with the applicant, nor a motive to assist him. Ms Witmer's affidavit revealed that he had disclosed to her the circumstances of his involvement on 22 June 2016 and his desire to take responsibility at the further meeting on 10 August 2016. There were further disclosures to his psychologist, as well as his current lawyer.
4. The applicant argued that the consistency in spontaneous disclosure over a number of years documented by the contemporaneous notes of his lawyer supported the credibility of Mr Tabbah's evidence.
5. The absence of a motive to assist the applicant and the disclosure being contrary to Mr Tabbah's own self-interest were further reasons supporting Mr Tabbah's credibility. Mr Thangaraj emphasised that "Mr Tabbah has a lot to lose by coming forward." [10]
6. Mr Thangaraj contended that the Corrective Services material demonstrated that Mr Tabbah had a propensity to violence which was consistent with the Crown case that whoever fired the shot did so deliberately. He also pointed out that the tendered material in Ms Black's second affidavit showed that Mr Tabbah "had a predisposition to over assessing and responding disproportionately…" [11]
7. The applicant contended that Mr Tabbah's evidence was credible or not incapable of belief when considered with other evidence in the trial. The applicant pointed out that the Crown case at trial was that the Crown could not say positively which accused fired the bullet. It was submitted that Mr Tabbah's account that the applicant was not aware of the firearm and did not discharge it, would not be enough to maintain his conviction for murder or manslaughter as advanced by the Crown.
8. Furthermore, the applicant argued that the DNA and other objective evidence, including the pieces of fragmented glass on the Lonsdale hooded jumper in the Crown case, did not contradict Mr Tabbah's evidence. The DNA evidence supported the applicant's presence at the time of the murder but did not prove his awareness of the firearm or participation in the shooting.
9. The applicant submitted that Mr Tabbah's evidence supported a significant possibility that the jury, acting reasonably, would have acquitted him.
10. Another submission was "accepting that [the applicant] gave evidence at the trial in accordance with what is contained in the Tabbah affidavit and annexure ST1, there is a significant possibility that the jury, acting reasonably, would acquit the applicant given the significance of the evidence, notwithstanding that the applicant himself gave a version that is inconsistent with [Tabbah's] evidence."
11. The applicant contended that where the Crown itself could not definitively say which of the accused shot the deceased, it left open a significant possibility that the jury would have acquitted him having regard to Mr Tabbah's evidence that it was he who shot the deceased.
12. As to the DNA found on the trigger and trigger guard of the revolver, Mr Thangaraj submitted that a single swab was taken off two areas and "all that proved was the DNA was on one of those areas. There is no evidence of [the applicant's] DNA being on the trigger. It's either on the trigger or the trigger guard." [12]
13. Mr Thangaraj argued that the Crown's "so what" submission should be rejected. It would not be inevitable that the applicant would be convicted of murder if it was accepted that Mr Tabbah shot the deceased.

The Crown's submissions

1. The Crown submitted that this appeal was not simply a matter of some evidence, recently available and recently relied upon at an appeal. The requirement that there was a miscarriage of justice needed to be considered. The applicant's submission of miscarriage should be considered in the light of his forensic decision to give evidence in which he denied involvement in the shooting.
2. As to the applicant's contention that Mr Tabbah's new evidence was fresh, the Crown argued that the applicant knew exactly where he was when the deceased was shot and his state of knowledge at the time, yet he gave an account that was deliberately wrong. The Crown submitted that it was always open to the applicant to have a case inconsistent with Mr Tabbah's case at trial and admit that he and Mr Tabbah had planned a robbery.
3. The Crown referred to Mr Tabbah's evidence as being a recantation of the evidence he gave at trial and cited Davies and Cody v The King (1937) 57 CLR 170 ('Davies') at 183-184 where the High Court explained that recantation evidence must be treated with extreme caution.
4. The Crown submitted that this Court may reach a conclusion that Mr Tabbah was so untrustworthy that his new evidence would be rejected. A further contention was that this Court should follow what Giles JA said in R v Bikic [2002] NSWCCA 227 at [281]: "Any power must be exercised in a principled way, and so the principles in the authorities. But they are the servant of the statutory test, not its master. The ultimate question is miscarriage of justice. When the evidence is not fresh evidence, but was known and deliberately not called at the trial, it can be said with some force that there was not a miscarriage of justice. Perhaps evidence of impeccable credibility and of manifest cogency to innocence or such doubt that the accused should have been acquitted will show miscarriage, but miscarriage must be assessed against the features of our system of criminal justice in which the autonomy of the parties to the trial process is valued (see Doggett v R (2001) 182 ALR 1 at 2-3 per Gleeson CJ). Hence, to take up what was said by Mason J in Lawless v The Queen, it is not enough that it show a likelihood that the jury would have returned a verdict of not guilty. Evidence of the exceptional kind is hardly likely to have been passed over without the flagrant incompetence referred to in R v Birks (1990) 19 NSWLR 677, but then the miscarriage is because the incompetence deprived the accused of a fair trial. In the absence of incompetence, why should an accused be able to ask an appellate court itself to decide whether it believes the evidence which was known and deliberately not called, and its impact on the verdict?"
5. The Crown submitted that to make out a miscarriage of justice, the applicant should show that Mr Tabbah's new evidence is "of impeccable credibility and manifest cogency even though the applicant only seeks a re-trial and not an acquittal". The Crown argued that the test the applicant contends and which usually applies when fresh evidence is relied upon "of a significant possibility of acquittal is… an inapt test for whether there was a miscarriage of justice in the subject case".
6. In oral submissions, Mr Balodis argued that Mr Tabbah's evidence was not capable of belief. He referred to Mr Tabbah's evidence in this Court as failing in the surrounding detail. When he was pressed on detail, Mr Tabbah went into "explanation, assumption and the like". [13]
7. Mr Balodis pointed out that the applicant had not recanted his evidence given at trial and had not even explained the effect of any threat made to him by Mr Tabbah.
8. A further argument was that the jury's verdict, which in effect was whoever fired the shot was guilty of murder and who did not was guilty of manslaughter, was not binding on this Court.
9. The Crown submitted that it would be open to conclude that the applicant was guilty of the deceased's murder on the other two bases upon which the Crown relied at trial, even if it was Mr Tabbah who shot the deceased.
10. Mr Balodis submitted that the manslaughter direction given by the trial judge required the finding by the jury that Mr Tabbah knew of the presence of the gun.

Legal principle

1. The authorities concerning fresh evidence commence with the oft-quoted statement of Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 ('Ratten') at 518-520 (McTiernan, Stephen and Jacob JJ agreeing): "It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged. Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish. But if the material before the court of criminal appeal does not convince the court of such a miscarriage, or if the appellant's claim is only for a new trial, the fact that the new material is not wholly fresh evidence in the sense I have described will be material. I have already pointed out that the non-production by the accused of evidence available to him at the trial - available actually or constructively in the sense I have mentioned - will not make the trial in any sense unfair. But there is the situation where, although the trial so far has been fair, evidence is discovered after the verdict which could not reasonably have been available at the trial: that is to say, fresh evidence is produced to the court of criminal appeal. The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, is that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. … To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence."
2. The principles stated by Barwick CJ in Ratten were re-affirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason CJ at 674-6.
3. In R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 ('Abou-Chabake'), Kirby J summarised the principles established by the authorities at [63] as follows: "· First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. · Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). · Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). · Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. · Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). · Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: · Is the evidence fresh? · If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? · If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. · Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)."
4. More recently, in Rogerson v R, McNamara v R [2021] NSWCCA 160 ('Rogerson'), the Court (Bell P, R A Hulme J and Beech-Jones J) said at [458]-[462]: "On behalf of Rogerson, it was submitted that the evidence the subject of this ground was "fresh evidence". In MRW v R [2011] NSWCCA 260 at [46], Bathurst CJ identified three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on this basis: "First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten [v The Queen (1974) 131 CLR 510; [1974] HCA 35] … at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant." As to the first question, where the relevant material is evidence that was in existence as at the time of the trial, the relevant issue is whether that material "could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case" (Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 516 per Barwick CJ). The evidence of Rogerson's solicitor and trial counsel is noted above at [457]. Having regard to that evidence, and the fact that Witness A did not come forward until after Rogerson was sentenced, we accept that the evidence of Witness A and Ms Ballard is relevantly "fresh". The second and third questions are interrelated with the consequence that the factual inquiry is not necessarily the same as that required of a trier of fact at first instance. This is best illustrated by a decision that is in some respects analogous to this case, namely Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26. In Gallagher, special leave to appeal was refused from a decision of this Court dismissing an appeal where evidence was given on appeal by a prisoner that he, and not the appellant, stabbed the deceased in gaol. This Court concluded that the evidence was false and was given with the intention of perverting the course of justice by the quashing of the appellant's conviction (at 394). In addressing the second limb of the test for fresh evidence, Gibbs CJ in Gallagher (at 396) described the "critical question [as] whether the evidence was apparently credible" (emphasis added). In describing the approach of this Court to an assessment of that "critical question", his Honour stated (at 397): "In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed. ... If the court concludes that the fresh evidence is apparently credible, or not incapable of belief, when considered in conjunction with the other evidence given in the case, the question then arises what influence it might have had upon the jury if it had been available at the trial. This question, which really subsumes the issue of credibility, has been stated in the authorities in different ways and with different degrees of emphasis." Gibbs CJ considered the various formulations of the test concerning the effect of the evidence upon the jury's verdict before expressing agreement with the approach of Mason and Deane JJ (at 402) that there will have been a miscarriage of justice "if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence" had been available at the trial (at 399). This is the formulation stated by Bathurst CJ in MRW at [50]. In Gallagher, Mason and Deane JJ treated the emphatic finding of this Court concerning the credibility of the supposed confessor as inconsistent with the existence of the "significant possibility" of acquittal of the appellant had his evidence been available at the trial (at 403 and 407; see at 399 per Gibbs CJ and at 422 per Dawson J). Similarly, in Gallagher Brennan J explained that, because an acquittal follows if the jury has a reasonable doubt about an applicant's guilt, "[i]t is not necessary that the court should think it likely that the fresh evidence would have been believed: it is enough that it is judged to be likely to have resulted in an acquittal" (at 410)."

Consideration

1. The success of the applicant's appeal depends on the evaluation of Mr Tabbah's evidence. His testimony during the trial was deliberately false. The caution with which his evidence is to be approached is emphasised by what was said by the High Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) in Davies at 183: "A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment."
2. The applicant gave evidence before the jury which stands in stark contrast with Mr Tabbah's evidence that he was present at the shooting. He testified that he was elsewhere at the time and provided an account of how his DNA and fingerprints were present on items found in the bin. Both his sister and brother supported his evidence of the disabilities that he suffered so as to reject the Crown's contention that he was one of the two men captured on CCTV footage running from the crime scene.
3. The applicant did not give evidence during the appeal, either orally or by affidavit, supporting Mr Tabbah's evidence. He has not resiled from his testimony before the jury.
4. It is important at this early stage to reject the applicant's contention that Mr Tabbah's new evidence should be evaluated on the basis that the applicant's evidence at re-trial would be given in accordance with Mr Tabbah's new evidence. There is simply no evidence before this Court that he would do so. This contention is directed at the third limb of the test of fresh evidence. It is well settled that Mr Tabbah's evidence is to be evaluated in the context of the evidence given in the trial, which includes the applicant's evidence. As Rich and Dixon JJ observed in Craig v The King (1933) 49 CLR 429 at 439: "It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced." (Emphasis added.)
5. In Gallagher, Mason and Deane JJ said at 402: "Regardless of the precise words in which one describes requirements such as 'cogency', 'plausibility' or 'credibility', the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial. Obviously, that question can only be answered in the context of, and by reference to, 'the probative force and the nature of the evidence already adduced at the trial'." (Emphasis added.)

Fresh evidence?

1. Turning to the first limb of the test of fresh evidence, the Crown argues that Mr Tabbah's new evidence is not fresh evidence as the applicant knew when and how the deceased was shot, yet he gave an account that was deliberately wrong. I understand the Crown's submission to be that the evidence is not fresh as it was available to the applicant at that time.
2. 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.
3. In my opinion, Mr Tabbah's evidence is fresh evidence.

Apparently credible or capable of belief?

1. The second limb is an evaluative test of the fresh evidence. The Crown's contention that the applicant must show that Mr Tabbah's evidence is "of impeccable credibility and manifest cogency" is contrary to authority and must be rejected. [14] The question is whether his evidence is apparently credible or capable of belief.
2. The reasons for his confession are advanced by him in the following ways: 1. From a deep reflection of his Islamic faith, he has understood that no greater injustice can be done than taking another person's life. He has felt guilty ever since the murder. His faith was his main motivation for coming forward; 2. Another injustice has been the deceased's family not knowing what happened as they believe it was the applicant who shot him. The deceased's family deserve to know; 3. The applicant was wrongly convicted of something he did not do and Mr Tabbah must do the right thing by his religion, the victim's family, and the applicant; and 4. By telling the truth, he will start a fresh life and get rid of his past.
3. There are a number of matters which detract from the honestly and reliability of Mr Tabbah's reasons for his fresh evidence. In the passage quoted at [55] above, he relied on his Islamic faith in an attempt to persuade the jury that his testimony was truthful. In this Court, the following exchange took place between Mr Balodis and Mr Tabbah: "Q. Let's be frank, nothing almost nothing of what you said at the trial in 2014 was the truth, was it? A. No. Q. It included when the Crown Prosecutor then said, 'Well I suggest you're not being truthful,' appeal book 1,130 this answer, "Well that's incorrect because I'm being truthful I just swore on my Koran by God and I'm sitting here to the jury and everyone here I'm not going to sit here and lie, I've got nothing to hide. I had nothing to do with this crime. That's what you said before a jury of the Supreme Court on 30 April 2014, isn't it? A. At that time-- Q. Is that what you said? A. Yes, but I said it in context. Q. Can you listen to my question because I asked you, is that [what] you said and now I have [another] question, when you said that, you said that with as much conviction as you could to ensure that whoever was in court would believe you. That's right, isn't it? A. No, I said it because I believed 100% I was innocent of murder and I stand by that statement until today, 100%, I'm innocent of murder. I never went there to kill anyone nor did I ever want to kill or do anything to what I did to Matthew or his family so I was saying it in context to that, youse were putting me on trial for murder. I was not of murder and my legal team said to me, 'that if I tell the truth I will not be believed'." [15]
4. Mr Tabbah's response to Mr Balodis' question was plainly untrue, as he lied to the jury to disassociate himself entirely from the murder. He said nothing to the jury about accidentally discharging the gun.
5. Another matter that stands unhappily with Mr Tabbah's desire to correct the injustices to the deceased's family and to the applicant is his appeal against the severity of his sentence for manslaughter which was heard by the Court of Criminal Appeal in October 2019. In Tabbah v R [2019] NSWCCA 324, the Court (Bathurst CJ, Johnson and Fullerton JJ) allowed the appeal and sentenced him for the offence of manslaughter to imprisonment for 13 years comprising a non-parole period of 8 years and 6 months with a balance of term of 4 years and 6 months. Mr Tabbah's head sentence was reduced by 1 year, and the non-parole period by 1 year and 6 months.
6. In this Court, in answer to questions from McNaughton J, Mr Tabbah gave the following evidence: "Q. Why in 2019 did you instruct your lawyers to lodge an appeal if in fact you were also saying at around that time and before that you were in fact the shooter? A. Your Honour I've been very confused about this issue for a very long time and I've been given many different advices from different people and even when I was - like when I first spoke with Janet Witmer I was adamant that I wanted to do the right thing back then but when I had gone back into the HRME and spoken to the other boys that I was there with they sort of convinced me that I shouldn't be going about this in that way and obviously I was adamant from day 1 that I had never murdered anyone in the sense of like the title itself. Obviously I knew I was guilty that an innocent man has died because of my actions but I was probably just deceiving myself in thinking that there was a difference between the two. So because I was always back and forth, back and forth with this at times I would listen for the legal advice and at times I would listen to people who I thought were close friends of mine. And a close friend of mine was the one that organised the appeal for me and said to me that you appealing your severity, why take anything away from you still trying to do the right thing because I had told - obviously I had said from day one that I believed I'm not guilty of murder and that's why I lodged the appeal because I believed I'm not guilty of murder so I felt that I should have my severity still looked at on the basis of manslaughter. Q. You were in fact only convicted of manslaughter, isn't that the fact? A. Yeah I was convicted of manslaughter but obviously your Honour like I wanted to go home and I don't want to spend the rest of my life in gaol and I want to change and I want to do the right thing and more time in gaol prevents me from doing that so I had a lot of selfish reasons of why I done my appeal." [16]
7. Mr Tabbah's discursive responses to McNaughton J's questions demonstrate the care that must be taken in assessing the veracity of Mr Tabbah's evidence. His reply that he lodged the appeal because he believed he was not guilty of murder was nonsensical.
8. A common theme emerged during Mr Tabbah's evidence. He attributed his appeal to a "close friend" organising it for him. Furthermore, he attributed his failure to give truthful evidence during the trial to his lawyer's advice "that the truth would not be believed" (see [101] above).
9. In his evidence in this Court, he said he told his lawyers his version of what happened and they said to him it would not be believed. His lawyers advised him that "it was not about the truth, it's about who tells the best story". [17] His version was that the shooting was an accident. He said that he accepted that advice and chose to plead not guilty.
10. It appears from Mr Tabbah's evidence that he was speaking about lawyers who acted for him at an earlier stage of the criminal proceedings, but not about the lawyers who represented him at trial.
11. His evidence concerning his trial lawyers in cross-examination by Mr Balodis included the following: "Q. Did you tell [trial solicitor] that the shooting had been an accident? A. I referenced it, yeah, I referenced it. I didn't go into detail, but I said‑‑ Q. In which way‑‑ A. Sorry? Q. In which way did you reference it? A. I said to him that can you speak to the prosecution to see if they will offer me a manslaughter deal because I will plead guilty to it because it was an accident. That's what I recall I said. Q. Did you have a barrister at the time? A. Yeah. Q. Who was your barrister? A. [Trial barrister]. Q. Did you reference that same conversation or that it was an accident with him? A. I can't remember." [18]
12. In my view, his account that he "referenced it" but did not go into detail with his solicitor is implausible. Any lawyer who was asked to "speak to the prosecution" about a plea to manslaughter would seek further instructions from their client as to how "it was an accident". Furthermore, it is remarkable that Mr Tabbah has no recollection of having a conversation with his barrister about "an accident" when he was prepared to offer a plea to manslaughter.
13. I found his explanation for committing perjury during the trial wholly unconvincing and I have no hesitation in rejecting it. Furthermore, I do not accept that he decided to appeal because his close friend organised it for him.
14. Against this unfavourable background, I turn to consider Mr Tabbah's substantive account of the commission of the crime. I do not intend to detail all of the differences in his accounts in the documents tendered in evidence but will refer to some that are material.

The collection of the gun

1. In his letter to Ms Hunter, Mr Tabbah described in the passages quoted at [94]-[95] above how he came into possession of the gun. His description included "[a]s I grabbed the gun my friend came over to me and said 'What are you doing?'" He said his friend tried to take it off him but he didn't let him.
2. This account differs from the "Index Offence" document which was annexure "F" to Mr Jones' affidavit. Mr Jones states that handwritten Index Offence document appears to be handwritten by Mr Tabbah.
3. As part of the VOTP, Mr Tabbah participated in "offence mapping", which Ms Huynh explained was a "step-by-step process" during which the participant writes about his index offence.
4. In the handwritten document, the following is relevant to the collection of the gun: "Before leaving I seen a gun next to the baliclavers that were ther for us to cover our faces. When I seen the gun I started getting worried and thinking that this guy were going to is a drug dealer and he might have a gun to. So I told my frend give me the gun he said no I took it of him regardless of what he said…" [19] (Emphasis added.)
5. In a VOTP analysis interview document ('the VOTP account') which is annexed to affidavits of Mr Jones and Ms Black, the following passage is relevant: "Met up few hours before going there, as we were talking, my friend had gun, I saw the gun, he never asked me to take it (I started overthinking, worried about the situation) don't think he brought it for that night - triggered me thinking (what if victim has a gun, backfires). Pass that gun here, friend said nah, I said just in case they pull one out on me, everything was hitting me hard (fear, flashbacks, death fears, matter of seconds). When I'm in that mode (not caring) and these things hit me really hard, it was probably a panic/anxiety attack. I took the gun, just in case to scare the bloke, we got more of a chance, don't know what's going to happen…" [20] (Emphasis added.)
6. It is evident that this version was provided by Mr Tabbah to Ms Huynh during his participation in September and October 2020 in the VOTP. Ms Huynh explained that generally it was her practice to write what her patients said "verbatim" to ensure that very comprehensive notes were kept of what took place in patient sessions. Ms Huynh had very comprehensive notes from her sessions with Mr Tabbah.
7. During cross-examination on this issue, Mr Tabbah's evidence included the following: "Q. You knew that problem - sorry, withdraw that - you knew even before Mr X picked you up that night that you were going the house of a man who might have a weapon himself. A. With the weapon - didn't really think about the weapon then but think when I see the gun those thoughts just became really intensified inside my mind and yeah, I started panicking, I don't know. Q. Did you just pick the gun up? A. Yes. Q. Or did you say "pass that gun here" to your friend, Mr X? A. I don't know. I just remember that the gun was in my hands and then Mr X said to me "what are you doing". It was - so to take - I don't know, I can't remember exactly what I said but it was to do with back and forth between me and him, he didn't want me to take it. Then I just - I said to him "I'm not going to use it anyways". Q. So you walk into this - through this open area, there's a table. As soon as you see the table you can see the gun, is that right? A. Yes. Q. Not only that, you're talking to Mr X about the gun and about what might happen with the gun, is that right? A. I - sorry, say that again? Q. You were talking with Mr X about taking the gun with you, weren't you? A. Yes. Not talking but it was like, he didn't want me to take it. Q. How did you persuade him that you should take the gun? A. I'm not too sure. I think possibly what I said "I'm not going to use it"." [21]
8. The inconsistencies in the accounts as to how he came to be in possession of the gun are material. In the Index Offence account and VOTP account, the gun is in the possession of Mr Tabbah's friend. Mr Tabbah asks his friend to give it (or pass it) to him. In both accounts, Mr Tabbah takes the gun from his friend.
9. In the letter to Ms Hunter, Mr Tabbah's account includes grabbing the gun and his friend coming over and asking what he is doing. In his evidence, Mr Tabbah describes seeing the gun on the table, picking the gun up, and his friend not wanting him to take it. When he was questioned about asking his friend to "pass the gun", Mr Tabbah did not know, but remembered that the gun was in his hands.

Events after the shooting

1. In his letter to Ms Hunter, Mr Tabbah described in the passages quoted at [98]-[100] what occurred after the gun fired. After they arrived at the house, he stated that he took off his jumper and face mask and put them on the floor, with the gun on top. He then chucked the gloves on the floor next to them. He told the applicant to chuck everything out and he walked off outside. After waiting for a few minutes, the applicant came out and was in shock. He told the applicant not to talk to him and just drop him off in his area, which he did.
2. This account differs from the Index Offence document in which the following appears: "…we got to the car started panicing and we had an argument. I dident know this guy as he was my frends frend. anyway I told him to shut up we got to his brothers house I wipped down the gun and gave it to him with my jumper and half a face mask and told him to get rid of it, then I took off and never spoke to him again." [22] (Emphasis added.)
3. The following version was provided by Mr Tabbah to Ms Huynh and appears in the VOTP account: "We were arging chucked in gun at the back of the car. He picked everything up and chucked it all in the bin. My other mate wiped the gun and Wassim picked it up, his DNA on the gun. That's how he found guilty. I had no faith in the system to do it justice." [23] (Emphasis added.)
4. The inconsistencies in the three accounts are obvious. The Index Offence account includes the gun being wiped down by Mr Tabbah and being given to the applicant, whereas in the VOTP account his "other mate wiped the gun" which the applicant picks up. In the letter to Ms Hunter, there is no mention of the gun being wiped by Mr Tabbah or another person, or the gun being given to the applicant.
5. In cross-examination in this Court, Mr Tabbah's evidence was fairly consistent with Ms Hunter's letter. He said that when he and the applicant were in the car after the shooting he was "pretty sure" he put the gun on the side of his pants which stands in contrast to "chucking the gun at the back". When asked was he alone with the applicant when he told him to get rid of the clothes and the gun he replied "Yes." [24] Further cross-examination by Mr Balodis on this issue followed: "Q. Well if you said that Mr X was there at the time when you were at [the applicant's brother's house] after Matthew Hedges's shooting that would be wrong wouldn't it? A. Did I say this. Q. Do you remember a free recall with your psychologist? Do you remember having a free recall with her? A. (no verbal reply) PRICE J: The psychologist should be identified by her name. BALODIS: Q. Ms Huynh, H-U-Y-N-H? A. I'm not exactly sure but yeah. Q. Do you remember one time she just got you to say what happened? A. I think so yeah. Q. In that did you say something about Mr X wiping the gun? A. I don't know. Q. That would be wrong wouldn't it? A. Again a lot of these things are back and forth for me. At times I get very emotional when I think about what happened. At times I recollect things that I might forget other times. At times I forget things, I've actually had them, so yeah that's all I can say." [25]
6. Later on, Mr Tabbah was asked by Ierace J: Q. You were asked some questions about an entry in notes taken by the psychologist as to what you told her, in particular a note that appears on p 34 of the affidavit of Michael Jones at the top of the page: "This is after the shooting my other mate wiped the gun and Wassim picked it up, his DNA on the gun that's how he found guilty." Do you remember being taken to that note? A. Look if I had said that I accept it, I don't wish to comment on anyone other than myself in this Court case. So that's probably my assumption of why Wassim's fingerprints weren't found on the gun. Q. Just a minute, is it your recollection that someone wiped the gun after the shooting? A. Possibly yeah. Q. Is it or is it not? A. I'm not sure I'm a bit confused on that issue. Q. Is that something that you would expect to have happened, the gun would be wiped to ensure there were no fingerprints on it? A. Possibly yes. [26]
7. It was not uncommon for Mr Tabbah to say he was confused or did not remember when he was confronted in cross-examination.

The shooting

1. Mr Tabbah's accounts of the shooting were generally consistent, however there were differences. In the VOTP account, he referred to the applicant running behind him and "pulling his shirt". In the Index Offences, he felt "his back pulled". In the passage quoted at [97] above from the letter to Ms Hunter, he felt his shoulder get "pushed back", and in his affidavit he stated that the applicant "maybe pulled my shoulder".
2. In Mr Tabbah's offence mapping records, the following appears: "I stand there and I hear a bang. The TV is on. I hear commotion inside the house. I see the victim holding something shiny. I feel the victim's body heat close to me. … I run to the noise and see co-ey. I pull out gun and face it in the direction [of the victim]. I pull trigger and I shoot him [victim]. Co-ey is running. I pause for a while. I hear the victim drop and scream. I hear the victim's mum scream. I hear him trying to gasp for air. I run to the car. I jump in the car with co-ey." (Emphasis added.)
3. There is no mention in this account of the applicant coming into contact with him before he shot the deceased. An egregious feature of the account is that Mr Tabbah states that he felt "the victim's body heat close to me". On a plain reading of the facts, this does not seem to be possible. Although the gun was fired at close range, it was fired from outside the house through the broken window. In any event, if Mr Tabbah was close enough to the deceased to feel his body heat, his claim to uncertainty about the item which he says the deceased was holding before he pulled the trigger is diminished. There is no suggestion that the discharge of the gun was accidental.
4. All of these matters raise questions about the credibility of Mr Tabbah's evidence.
5. There are, however, aspects of the evidence which provide some support for Mr Tabbah, which I now turn to.

Mr Tabbah's propensity to violence

1. Mr Tabbah's prior criminal history is replete with offences of violence. His record as a young person includes control orders for robbery in company; take and detain person with intent to obtain an advantage; assault occasioning actual bodily harm; aggravated assault with intent to rob; and robbery.
2. As an adult, he has been sentenced to terms of imprisonment for robbery armed with an offensive weapon; assault of a law enforcement officer; and possession of an offensive weapon in a place of detention.
3. In an internal prison report to the General Manager of Silverwater Metropolitan Remand Centre dated 8 August 2013, the author states: "Tabbah has extremely poor impulse control, and has an extended history of violently assaulting custodial staff and inmates. At this stage Tabbah is unable to address his aggressive and violent behaviour…"
4. The author refers to the completion by Mr Tabbah of three months' segregation "for stabbing an inmate" and, whilst in segregation, attempting to assault a correctional officer.
5. Ms Huynh's "Case Formulation and Treatment Plan" includes: "Mental health diagnoses: Mr Tabbah has been historically diagnosed with Intermittent Explosive Disorder, Antisocial Personality Disorder, and Post-traumatic Stress Disorder. These diagnoses, whilst not directly related to his offending, are likely mediating or contributing factors to his emotional dysregulation/outbursts, over-appraisal of risk, and rigid distortions."
6. Under the heading "Precipitating factors", Ms Huynh refers to Mr Tabbah's "Impulsivity, poor emotional control and decision making". Another precipitating factor is his "distorted thinking/over-appraisal of risk". Mr Huynh states: "Mr Tabbah's emotional undercontrol can be attributed to his tendency to engage in distorted thinking with themes related to an over-estimation or distorted perception of risk. For example, he reported having beliefs about his victim (or drug dealers in general) having a gun, that officers want to seriously injure him or that if he did not honour the 'con code' others will hurt him or his peers."
7. In the pre-release report, there are references to Mr Tabbah's "entrenched criminal history", "violent lifestyle" and identification of his predominant risk factors as being: "…his mental state, isolation, lack of emotional regulation, lack of community support and anger…"
8. Under the heading "Social influences", the author of the report states: "Mr Tabbah reiterated that he did not have a prior relationship with his co-offender and their only connection was sharing a mutual friend who was owed money by the deceased. Mr Tabbah described a history of being involved in other people's problems and being the 'muscle man'."
9. Mr Tabbah described his paranoia when he saw the gun in his letter to Mr Hunter. In the passage quoted at [94] above, his main paranoid thought was that the deceased was a drug dealer who might have a gun. He had earlier stated it was his role to ensure that the applicant was safe.
10. This account is generally consistent with the Index Offence account, the VOTP account, and the Offence Mapping account. The Offence Mapping account includes the following: "I've been in similar scenarios before where my role was just to bash the guy. It is going to be easy because no one's going to be home. I'll sort him out, it's going to be okay. What are the chances? I'm tripping out. He's a drug dealer. All drug dealers have guns. How about if he has a gun? I need to protect myself. What if… Paranoid, anxious, scared, worried, defensive, on edge, robotic, alone, depressed, lonely, numb. I grab the gun…"
11. When sentencing the applicant, Schmidt J referred to the contrast between the criminal records of the co-offenders. Her Honour remarked at [110]-[111]: "Mr Tiriaki does not have a serious record like that of his co-offender, but he has not led a blameless life. On the evidence of his sister and brother, this offence was, however, out of character, committed at a time when his brother had warned Mr Tiriaki against pursuing his association with certain persons. That was certainly good advice, which Mr Tiriaki regrettably did not heed. Mr Tiriaki has a limited record of convictions, including driving offences, an aggravated break and enter in company offence in 2007 and an assault in 2008. He was also on a bond at the time he committed this offence. This will be his first custodial sentence. This record must be taken into account, but I accept, as was submitted for Mr Tiriaki, it is a record which still permits some leniency in this sentencing exercise." [27]
12. The applicant's mental history in the sentencing proceedings was essentially confined to a substance use disorder, a depressive illness, and a possible learning disorder. Her Honour found at [113] that there was "room for hope that Mr Tiriaki had prospects of rehabilitation and that he will not offend in the future".
13. When sentencing Mr Tabbah, her Honour noted that he had been "assessed as posing a high risk of committing further violent offences" and referred to diagnoses of "intermittent explosive disorder, antisocial personality disorder and posttraumatic stress disorder". [28]
14. Her Honour found that "Mr Tabbah unquestionably poses a very serious risk of committing further, serious offences of violence, both while in custody and on release." [29]
15. Mr Tabbah's violent criminal history, intermittent explosive disorder and post-traumatic stress disorder supports his version of events that he was the shooter. His descriptions of his role as being the guy "to bash" the deceased and the provider of protection for the applicant are consistent with his background. The shooting at close range fits neatly into Mr Tabbah's mental state which includes paranoia and anxiety about a drug dealer being armed.
16. In these circumstances, it seems to me to be unusual that the applicant was the offender who shot the deceased.

Further criminal proceedings

1. Mr Tabbah has served 11 years for the offence of manslaughter. He has not been released on parole, although he was eligible for release on 6 March 2022. The balance of term expires on 5 March 2025. In the present circumstances, at the very least, it is likely that he will serve the full term of his sentence.
2. His confession to being the shooter exposes him to further criminal proceedings. The offence of perjury under s 327 of the Crimes Act 1900 (NSW) carries with it a maximum term of imprisonment for 10 years. There are other offences falling within Part 7 of the Crimes Act which may apply. The general offence of perverting the course of justice under s 319 of the Crimes Act carries with it a maximum term of imprisonment of 14 years.
3. It does not appear that he can be retried for murder under s 100 of the Crimes (Appeal and Review) Act 2001 (NSW) as s 100(4) provides: 100 Court of Criminal Appeal may order retrial - fresh and compelling evidence ... 4) The Court of Criminal Appeal cannot order a person to be retried for a life sentence offence under this section where the person had been charged with and acquitted of the life sentence offence but had been convicted instead of manslaughter or other lesser offence.
4. Whether or not Mr Tabbah's circumstances fall within s 101 of the Crimes (Appeal and Review) Act as a "tainted acquittal", so that he may be retried for murder, is not a matter for this Court to determine.
5. It is clear from his evidence that Mr Tabbah understands that further criminal proceedings might be taken against him, whatever may be his reasons for his confession.

Decision on second limb

1. As I have pointed out, there are troubling aspects of Mr Tabbah's evidence which raise questions about its veracity. His inconsistent statements, memory deficiencies, evasive and non-committal testimony concerning the details surrounding the shooting are to be contrasted with his assertion that he was the shooter. Overall, I found Mr Tabbah to be an unimpressive witness. However, Mr Tabbah's past violent offending, mental history and exposure to further criminal proceedings provide some support for his evidence that he was the shooter. I am unable to reach the firm conclusion that the entirety of his evidence is false when considered in the context of the trial. In my view, it is unnecessary to decide more than his evidence that he shot the deceased is capable of belief: see Gallagher at 397.

Is there a significant possibility the jury acting reasonably would have acquitted the applicant of murder if the fresh evidence was available at trial?

1. I bear in mind that "[t]he relevant principles… emphasize that a verdict is not lightly to be set aside because of the discovery of fresh evidence." [30]
2. I have adopted the approach to the third limb of the test of fresh evidence as suggested by Mason and Deane JJ in Gallagher in the passage quoted at [174] above. Gibbs CJ expressed agreement with this approach, which this Court followed in MRW v R [2011] NSWCCA 260 ('MRW') and Rogerson.
3. In MRW, Bathurst CJ considered the test of "significant possibility" [31] to be somewhat lower than the test of likelihood of the jury entertaining a reasonable doubt which was the formulation expressed by Toohey and Gaudron JJ in Mickelberg v The Queen. However, Bathurst CJ considered that it was unnecessary to further consider this issue.
4. The Crown case at trial against the applicant and Mr Tabbah was circumstantial. However, Schmidt J informed the jury in the passage quoted at [80] above of the Crown's concession that the evidence of who was the shooter was stronger against the applicant than his co-accused. This concession was undoubtedly due to the probative force of the DNA and fingerprint evidence.
5. DNA from the grip and trigger/trigger guard of the Smith and Wesson revolver was matched to the applicant, as was DNA on the tape roll, Lonsdale jacket, black gloves, and full-face mask. All of these items were found in the applicant's brother's garbage bin.
6. DNA from the blade area and knife handle of the folding knife was matched to the applicant. This knife was found near the front of the applicant's brother's house. The applicant's fingerprints were found on the duct tape roll and the empty Ansell glove packet.
7. The matching of Mr Tabbah's DNA was confined to a blue glove, Champion jumper, and half-face mask.
8. The matching of the applicant's DNA on the grip and trigger/trigger guard on the revolver pointed powerfully to the applicant being the offender who discharged the weapon. CSO Weldon told the jury how he had taken DNA trace swabs from the grip (on both sides), and the trigger and trigger guard. He explained that he had used a single cotton bud to swab the trigger and trigger guard, and accepted in cross-examination that the DNA which was found could either be from the trigger or the trigger guard. There were no fingerprints detected on the revolver or the five live rounds found in the chamber. This was the weapon used to kill the deceased.
9. The cogency of Mr Tabbah's accounts as to how the applicant came into possession of the gun at his brother's home after the shooting suffer from the inconsistencies that I have referred to at [204] above and from other aspects which indicate their lack of credibility.
10. The Index Offence account includes the gun being wiped down by Mr Tabbah and being given to the applicant. According to Mr Tabbah, he was wearing gloves when he shot the deceased, so a relevant question is why he felt the need to attend to the weapon in this way. However, a more illuminating indication of the implausibility of this account is that the applicant then takes the gun after it has been wiped in his presence and handles the weapon in such a way that his DNA was left on the grip and the trigger/trigger guard.
11. Similar criticism may be made about Mr Tabbah's version in the VOTP account of the applicant picking up the gun after it had been wiped by Mr Tabbah's "other mate".
12. Mr Tabbah's version in the letter to Ms Hunter made no reference to the gun being wiped. However, according to Mr Tabbah, the applicant had no knowledge of the gun before the shooting and was in panic after the deceased was shot, screaming "What have you done?" In my view, it is not credible that the applicant would pick up the gun at Mr Tabbah's direction in these circumstances.
13. Another difficulty with Mr Tabbah's testimony is that it stands, as I have already noted, in stark contrast with the applicant's evidence already adduced at the trial that he had nothing to do with the murder and as to how his DNA came to be on the gun.
14. In my view, there is no significant possibility that the jury acting reasonably would accept Mr Tabbah's evidence as to how the applicant came to be in possession of the gun. As a consequence, there is no plausible explanation of the presence of the applicant's DNA on that weapon.
15. Does it necessarily follow from that conclusion that there is no significant possibility that the jury acting reasonably would not accept Mr Tabbah's evidence that he shot the deceased? The Crown bears the onus throughout the trial of proof of the applicant's guilt beyond reasonable doubt.
16. The DNA and fingerprint evidence was of fundamental importance, as the trial proceeded on the basis that both accused denied any involvement in the murder. If Mr Tabbah's testimony, that it was he who shot the deceased, had been adduced at the trial, I have no doubt that it would have been embraced by the Crown and accepted by the jury.
17. The exposure to further criminal proceedings and the lack of a discernible motive to lie about who killed the deceased would, in my view, enhance in the minds of a reasonable jury that it was a real possibility 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. In my opinion, there is no significant possibility that the jury acting reasonably would accept that the shooting of the deceased was accidental. A standard direction to the jury is that they may accept part of the evidence of a witness on an aspect of the case and, at the same time, not accept the evidence of that same witness on another aspect of the case.
18. Mr Tabbah's confession reduces the significance of the DNA evidence in establishing who killed the deceased. Furthermore, there were no fingerprints on the five live rounds or on the revolver.
19. As the Crown argues, this Court is not obliged to follow the reasoning of the jury who found that Mr Tabbah was not the shooter and returned a verdict of manslaughter. The Crown case on murder was not confined to the accused who shot the deceased.
20. Schmidt J directed the jury on the essential elements of murder "on an aid and abet basis". Her Honour relevantly told the jury that the third essential element was; "that the co-accused intended either to kill him or inflict grievous bodily harm", and the sixth essential element was; "that the accused knew all the essential facts or circumstances necessary to show that the co-accused intended to shoot Matthew Hedges so as to kill him or inflict grievous bodily harm", and the seventh essential element was; "that with that knowledge the accused intentionally assisted or encouraged the co-accused to commit that murder." [32]
21. Schmidt J's instructions on murder "on the basis of extended joint criminal enterprise" included the following essential elements: "…fourthly… that [the particular accused] contemplated the possibility that, in carrying out their joint criminal enterprise, that the gun might be fired with the intention of killing or causing grievous bodily harm to another person, and; fifthly, that being his state of mind, the accused participated in the joint criminal enterprise." [33]
22. In my opinion, there is no significant possibility that the jury acting reasonably would accept Mr Tabbah's evidence as to how he came into possession of the gun and of the applicant's lack of knowledge of the weapon before the shooting.
23. There is, however, a significant possibility that the jury acting reasonably would not be satisfied beyond reasonable doubt that the applicant had the necessary knowledge or state of mind to be guilty of murder, either as an aider and abettor, or a participating member of a joint criminal enterprise.

Was there a miscarriage of justice?

1. I am satisfied that if Mr Tabbah had given evidence in the trial that he shot the deceased, there is a significant possibility the jury acting reasonably would have acquitted the applicant of murder. There has been a miscarriage of justice, notwithstanding the applicant's testimony in the trial that he had never been to the deceased's home and was not part of a plan to kill or rob him.
2. The Crown's argument that there is no unfairness to the applicant because of the forensic decisions he made at trial is outweighed by the significance of the fresh evidence. In Ratten, Barwick CJ said at 517: "Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial. Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair." (Emphasis added.)

Orders

1. I propose the following orders: 1. Grant leave to the applicant to raise ground 1 of the appeal; 2. Appeal allowed; 3. Quash the conviction of murder entered on 9 May 2014; 4. Order a new trial.
2. IERACE J: I have had the considerable advantage of reading the draft judgment of Price J. I agree with his Honour's proposed orders and his reasons.
3. An unusual aspect of the application is that, at trial, the applicant relied upon a defence of alibi, which is plainly inconsistent with the potentially exculpatory account of Mr Tabbah that the applicant was with him when the deceased was killed but he, not the applicant, possessed and discharged the gun. On this application, the applicant has not resiled from his earlier version of events which he had given on oath.
4. If a new trial is sought on the basis of material which the Court is satisfied is correctly characterised as fresh evidence, it must consider it in the context of "the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them": Ratten v The Queen at 518-519, extracted at [166] above.
5. Implicit in the jury's verdict of murder is its rejection of the applicant's defence of alibi, which is thus the appropriate basis upon which the anticipated evidence of Mr Tabbah is to be considered by this Court.
6. I share Price J's scepticism as to the veracity of aspects of Mr Tabbah's account, for example, his explanation as to how he came to possess the gun and dispose of it. In addition, I note that in 2016, Mr Tabbah's solicitor at the time contemporaneously recorded him in conference instructing that "[h]e had not told [the applicant] that he had a gun but he told him that if the victim had a gun he had something to protect them". In evidence in this Court, Mr Tabbah denied that he had told the applicant he was armed, saying that his solicitor was mistaken.
7. I am nevertheless satisfied that if Mr Tabbah had given evidence that he shot the deceased there is a significant possibility that a jury, acting reasonably, would accept that evidence and would have acquitted the applicant of the offence of murder in the context of the Crown case as it was then framed as to the alternative bases of criminal liability.
8. MCNAUGHTON J: I agree with the reasons and orders proposed by Price J and only wish to add the following comments.
9. This is a difficult and unusual case where the fresh evidence is of such a nature that a new trial must be ordered in accordance with the detailed reasons set out by Price J. It is difficult and unusual because at their joint trial, before a jury, the applicant and Mr Tabbah gave evidence under oath entirely at odds with the version of events now being put forward by Mr Tabbah, also under oath.
10. That a new trial is being ordered in these circumstances no doubt prolongs the distress suffered by the deceased's family and friends as well as costing the community the expense of running at least one further trial. However, as Price J has set out so comprehensively, the essential nature and circumstances of the fresh evidence in this case (including Mr Tabbah's lack of a discernible motive to lie about who killed the deceased and that he has exposed himself to further criminal proceedings) has sufficient cogency where the ordering of a new trial is the only proper outcome.

Endnotes

1. R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764 at [5].
2. Ibid at [53].
3. Tcpt, 11 April 2014, p 391(17).
4. Tcpt, 30 April 2014, p 1070(36).
5. Tcpt, 30 April 2014, p 1104(48).
6. Tcpt, 30 April 2014, p 1105(37).
7. Tcpt, 30 April 2014, p 1108(23).
8. Tcpt, 1 May 2023, p 1131(38).
9. Tcpt, 7 May 2014, p 72(23).
10. Tcpt, 21 November 2022, p 61(24).
11. Tcpt, 21 November 2022, p 61(15).
12. Tcpt, 21 November 2022, p 62(29).
13. Tcpt, 22 November 2022, p 92(30).
14. Tcpt, 21 November 2021, p 74(29).
15. Gallagher v The Queen (1986) 160 CLR 392 at 402; MRW v R [2011] NSWCCA 260 at [51]; R v Abou-Chabake [2004] NSWCCA 356 at [66]; Rogerson v R, McNamara v R [2021] NSWCCA 160 at [461].
16. Tcpt, 21 November 2022, p 42(18).
17. Tcpt, 21 November 2022, p 49(16).
18. Tcpt, 21 November 2022, p 45(10).
19. Tcpt, 21 November 2022, p 45(50).
20. Transcribed as written.
21. Transcribed as written.
22. Tcpt, 21 November 2022, p 30(27).
23. Transcribed as written.
24. Transcribed as written.
25. Tcpt, 21 November 2022, p 38(15).
26. Tcpt, 21 November 2022, p 38(30).
27. Tcpt, 21 November 2022, p 48(17).
28. R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764 at [110]-[111].
29. Ibid at [79].
30. Ibid at [83].
31. Gallagher v The Queen (1986) 160 CLR 392 at 413.
32. MRW v R [2011] NSWCCA 260 at [52]-[54].
33. Tcpt, 8 May 2014, p 92(6). 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: 29 March 2023