The narrative resumes
180I shall now return to the narrative. On 1 August 2006 Detective Constable Ryder spoke to the police scientific officer, Katherine Flynn, about having the plaintiff's clothing tested for gunshot residue, but Ms Flynn later (9 August 2006) explained to Constable Procter on her behalf that if the garments had been washed, (as Constable Procter said had occurred) there would have been no point.
181Detective Sergeant Davey and another officer visited Jeremiah Mahoney on 27 July 2006 at 11:47pm after he had made the 000 call to report that the assailant had returned to his flat and had threatened him with a pistol. They spoke to Mr Mahoney and Mr Thomas Neville. On the COPS entry for that night prepared by Detective Sergeant Davey this was recorded:
"On 27/07/2006 the victim contacted Police and stated that a male person had just attended his unit, and threatened him with a pistol. Rosehill Detectives attended the address and spoke to the victim.
The address was the scene of a shooting on 20/07.2006, where Thomas NEVILLE was shot in the groin. Statement were taken on this date, one from Jeremiah MAHONEY, the victim in this matter.
As a result Strike Force Wedgewood was initiated to investigate the shooting, and on Tuesday 25 July 2006, Haysam Zreika was charged and subsequently bail refused.
Jeremiah MAHONEY was spoken to about this latest incident. He states that he heard a knock at his front door of his unit. He called out "Who is it?" and did not receive a reply. He stated that he opened the door a little bit and saw the offender with a pistol. He stated that the offender said "if you keep talking about what happened, I'll come back and shoot you" or similar.
The victim claims that he quickly shut the door and called police. Rosehill Detectives attended a short time later. Police spoke with neighbours who were working in a garage next to the door way to the victim's unit. They stated that they had been in this area for some time and had not seen anyone, let alone a person matching the description give by the victim.
Also present at the time of this alleged offence was Thomas NEVILLE. NEVILLE is the victim of the shooting, that occurred on 20/07/2006. He was spoken to and stated that he did not see the alleged offender and did not hear the threats.
During this alleged offence, the brother of Jeremiah MAHONEY (Bart MAHONEY) was asleep, and only woken by Police upon their attendance.
This report is at this stage considered doubtful. The Victim (MAHONEY) claims that he only opened the door a little bit and looked into the darkness, and when he heard the threats he quickly shut the door. However during this short time looking into a dark area, he can describe in detail the alleged offender and his clothing, and nominated the weapon as a 7mm silver handgun (pistol). This description is coincidentally, the same description given by witnesses of the shooting that occurred on 20/07/2006.
Police spoke to MAHONEY in the hallway where the alleged offender was standing, and during this time the hall lights automatically turned off. It was noticed by police the area was completely in darkness, and police had trouble seeing anything.
The victim (MAHONEY) was not convincing in his version, and was not overly concerned with his safety, considering the events of the past week.
Arrangement were made for the victim to attend Rosehill LAC on Friday 18/07/2006 to provide a statement."
182The fact that Jeremiah Mahoney had made a 000 call after the plaintiff had been arrested, telling police in effect the real offender was still at large, was, I consider, a highly significant matter. I would expect reasonably competent police to take such evidence seriously, at least until investigated. Of course, if the evidence had proved reliable, it would have been embarrassing for police who had identified the plaintiff as the offender and gone to the trouble of having him arrested by the OTU. But potential embarrassment should not have caused police to treat Mr. Mahoney's evidence with more than normal scepticism.
183The fact that police apparently exercised far greater scrutiny with evidence suggesting a major police error had been made than they had when making the error, was the subject of cross examination of Detective Constable Ryder's colleague and senior officer, Detective Sergeant Davey. When Detective Sergeant Davey gave evidence about why he had apparently looked askance at Jeremiah Mahoney's evidence of having been visited by the shooter on 27 July, this evidence was given:
" Q. Of course, if this report from Jeremiah Mahoney was correct, that obviously meant that Mr Zreika was not the person who was the assailant, because he was already in gaol. Isn't that right?
A. That would be right.
Q. So when you say this report is, at this stage, considered doubtful, what did you mean by that?
A. I formed the opinion that, after speaking with both Jeremiah Mahoney or the victim of the first incident, Thomas Neville, and the brother Bart Mahoney, who was present but didn't see or hear anything, using my observations of both and the conversation that I had with both Jeremiah Mahoney and Thomas Neville, I formed the opinion that there was a possibility that they were making this call up.
Q. A possibility?
A. A possibility, yes.
Q. What conversation did you have with Mr Thomas Neville before you formed that--
A. Very limited.
Q. Pardon?
A. Very limited.
Q. How could anything he said have allowed you to form such an opinion?
A. Well, I would have believed in my - I would have believed that if this was - if this had happened the way they were telling me, that he would be in - maybe in a more state of shock than what he appeared to be at this time, seeing that he was a victim of a shooting a week earlier. He--
Q. Yes, well--
HIS HONOUR: I don't think the witness had finished.
KENNEDY
Q. Go on.
A. And he basically couldn't give me any information than what Jeremiah Mahoney was giving me.
Q. Well, he wasn't the one that had actually been confronted with the revolver, had he?
A. No.
Q. You can't tell us what questions you asked him, or what he said to you about how he was feeling or not feeling at that time.
A. He didn't tell me how he was feeling.
Q. No. It was - Mr Jeremiah Mahoney was the one against whom the threat had been made, wasn't it? There had been no threat made against Mr Thomas Neville that you were aware of.
A. Well, Jeremiah Mahoney was the one that answered the door, yes.
Q. And he was the one that made the call about the threat being made, wasn't he?
A. That's correct.
Q. That was what you were there to investigate, because this COPS entry relates to the alleged victim being Jeremiah Mahoney, not Thomas Neville, doesn't it?
A. That's correct. " (T 365.47 to 367.8.)
.....
Q. There's nothing in the statement to suggest that you looked from inside the apartment through an open doorway in order to determine whether perhaps you could see someone outside the doorway, such as, say, your fellow officer Pride. Isn't that not correct?
A. Sorry, could you just repeat that again. I was just sort of reading what I've got in here.
Q. You formed the view that you had trouble seeing anything from your standing outside of the apartment. You see that? Is that correct?
A. We had a look outside. Obviously, we had to walk to the unit so we knew what it was like standing outside the unit, and while we were inside talking to them - Jeremiah Mahoney and Neville - when I asked Mr Mahoney to show me what had happened, or re-enact it as I referred to, we could see the darkness through the door and into - there was no light coming through from the outside into the door, the distance that he opened it.
Q. Your COPS statement says nothing about that whatsoever, does it?
A. I haven't got it in there, no.
HIS HONOUR
Q. Would there have been one of those switches outside each flat?
A. I don't know, your Honour.
Q. The way they normally work is that each flat gets one just outside the door, which they then can turn on as they go out in the dark. It stays on until they get to the garage or wherever it is.
A. That's my belief, yes.
Q. So if it had gone off while someone is standing there, somebody could have just pushed the thing in and got it on again I suppose.
A. That's my belief.
KENNEDY
Q. When you said the victim was not convincing in his version, what was the basis of making that statement?
A. Other than the description of this alleged person to turn up at his door, his demeanour - he wasn't in any sort of distressed state, emotional state. He didn't feel threatened.
Q. Where does that appear in the statement?
A. That's not there.
Q. Where does the other - what did you say a moment ago, he didn't seem to be--
A. In an emotional--
Q. Emotional state. Where's that in the statement?
A. I don't see it here.
Q. So he was not convincing, so emotional, not feeling threatened, nothing about him saying anything to you about that - or not saying something about it. Is that correct?
A. It's not in this COPS event, no.
Q. He was not overly concerned with his safety. What did you mean by that?
A. He and the other two that were in that unit, from my recollection, I can't remember whether it was myself or Detective Sergeant Pride, but I think we offered some sort of assistance to have them relocated for a night, or whatever, if they felt any threat, because as far as we were concerned, you know, he made a comment - actually, he told us the basis of this person turning up was, if you keep talking about what happened, I'll come back and I'll shoot you. He said something similar to those words, which I've got it recorded there, so we felt - and because of the events of the week earlier, where Mr Neville had been shot, we felt that if this had taken place, and then we should offer some sort of assistance to them to make sure they're safe, that this person that they allege came that night wouldn't come back.
Q. What are you trying to tell me? Did you offer it to him? Assist him?
A. It was. I just can't recall whether it was myself or Detective Sergeant Pride.
Q. Where is that in the COPS event?
A. It's not in the COPS event.
Q. Are you sure that's what you said? That would be a very important thing to put in the COPS event, wouldn't it? If you were forming a view about the fact that he was not overly concerned, you would have put it in the COPS event because - "weren't overly concerned, because we offered him assistance having regard to the events that had occurred, and he declined". Surely that would be a very important thing to put in the COPS document.
A. In hindsight, maybe I should have put it in there.
Q. Can I take you to the document at page 188. Can I just take you to the third paragraph. You say, "When further questioned, Mahoney changed his version to 'He looked like the guy from last week.'" Is that right?
A. That's what it says here, yes.
Q. You became aware of the existence of this document?
A. I can't recall seeing it, but I know what it is.
Q. That doesn't appear in the COPS entry at all.
A. Not in my COPS event, no.
Q. This document would have been made up, presumably from the COPS, because it's got a reference at the bottom. You see the COPS event, 28711316.
A. That's correct.
Q. So there's nothing in the COPS entry about that about changing his opinion, is there?
A. No, I don't see it in the COPS, no.
Q. And then you see, the bottom of the paragraph, you've got, "The demeanour of Jeremiah Mahoney and Thomas Neville do not appear to be consistent with a victim that had been threatened with a firearm, considering that Neville was shot a week earlier." We know that there was no suggestion that Thomas Neville had been threatened on that night, was there?
A. Not directly.
Q. Not at all. Jeremiah Mahoney was the one that was being threatened. You knew that, didn't you, officer?
A. I believed they were both being threatened.
Q. There's nothing in your COPS entry about that, is there?
A. The only thing related to that would be where I've put in here, "If you keep talking about what had happened, I'll come back and I'll shoot you," and seeing that I was of the - well, recollection, I'm sure a statement had been taken from - or a version had been taken from Thomas Neville as well, when he's referring to "stop talking", I've formed the opinion that, talking to whoever had given statements.
Q. Officer, you're just making this up now, aren't you?
A. No, I'm not.
Q. The person who'd made the complaint about being threatened on that evening was Jeremiah Mahoney.
A. He made the phone call, yes.
Q. That he was the one that was threatened. You spoke to him and he told you what had happened.
A. That's correct.
Q. Mr Neville had never - you'd never at any stage said that he was threatened that evening.
A. I can't remember what he told me but--
Q. There's nothing in your COPS entry about it, is there?
A. There's not.
OBJECTION
KENNEDY: Yes. About that, though.
Q. About him being threatened that evening.
A. About Thomas Neville's version.
Q. Thomas Neville being threatened that evening.
A. Yeah, there's nothing in the COPS--
Q. No. If I can just take you back to 188, "The demeanour of Jeremiah Mahoney" - let's deal with him, firstly - "did not appear to be consistent with a victim being threatened with a firearm." What was it about his demeanour that allows you to form that view?
A. From memory, there was no - like I said, we offered to have him move from that unit, or some sort of assistance, with safety. He didn't seem too worried that a man with a gun had just turned up at his address and threatened him.
Q. He was sufficiently concerned to ring up zero zero zero, wasn't he?
A. That's the call he made, yes.
Q. What was it about Mr Neville's demeanour?
A. From memory, Mr Neville basically just stood behind Mr Mahoney and let him speak. He did say something, but again, I haven't got it recorded here, and I can't remember what the exact words were. But again, he had been shot a week or so earlier, and again, he didn't show any particular emotional state, or distress, or any type of behaviour that would be expected of someone who'd been shot a week earlier, and a man turned up on the doorstep where he's living, or where he's staying, or whatever he was doing there, and threatened him.
Q. He wasn't threatened. You had no evidence to suggest that Mr Neville was threatened at all that evening, do you?
A. Not directly, no.
Q. What do you mean, "not directly"? You don't have any evidence.
A. Again, as I explained, the alleged wording given by Mr Mahoney - or something similar: "If you keep talking about what happened, I'll come back and shoot you."
Q. Standing at the doorway, which was just open.
A. Yes.
Q. The doorway was just open a little bit and that's when Mr--
A. According to Mr Mahoney" ( T 368.41 to 373.7. )
....
" Q. He certainly wasn't vague about the nature of the weapon, Mr Jeremiah Mahoney, was he?
A. No, he wasn't. "
Q. Very clear. You formed the view that the description he gave you of the weapon was the same description given by the witnesses of the shooting that had occurred on 20 July 2006.
A. Similar description of the firearm, yes.
Q. The same description.
A. Very similar, yes.
Q. Your - the COPS entry says, "The same description," doesn't it?
A. The same. Yes, that's what I've got in the COPS.
Q. You then said, at page 188, "both" - referring to both Jeremiah Mahoney and Thomas Neville - that the information did not appear believable. What was the basis for you to forming that view in relation to what Jeremiah Mahoney had told you?
A. Everything combined, as in their demeanour. The description that was given was the same description of the person involved in the shooting. Their hesitation to accept any sort of assistance for their safety; they didn't seem too worried, other than reporting it to the police. They didn't appear too worried to get out of that unit.
Q. They'd reported it to the police. The police had come around, and you were there on the job, investigating this matter, weren't you?
A. That's correct.
Q. So it was into the system? The threat was made, I suggest, and they got information to the police quickly, and it was into the police system--
A. The report was--
Q. --which would in itself provide them with a measure of protection, wouldn't it?
A. We can offer them protection, yes.
Q. Just by the information being within the system offers them a measure of protection, would it not?
A. Well, it could be, yeah.
Q. At the time that you were carrying out this investigation, I suggest to you that you knew that the case against Mr Zreika was paper thin, wasn't it, as far as whether he had been the assailant?
A. There was some evidence there, yes.
Q. But pretty minor evidence, wasn't it? Very--
A. There was some evidence.
Q. Amounting to no more than a possible suspicion. Isn't that right?
A. No, there was enough to - a reasonable suspicion. ( T 372 to 372.3. )
184Against that background Mr Kennedy suggested Detective Sergeant Davey had closed his mind to the plaintiff's innocence:
" Q. What I suggest to you is that you knew that this arrest of Mr Zreika had been botched, was wrongful, didn't you--
A. No.
Q. --at the time that you were investigat[ing] this matter?
A. No.
Q. And that you had closed your mind to Mr Zreika's innocence, hadn't you?
A. No.
...
Q. What I suggest to you, is that the conclusions that you reached in relation to the complaint was designed to suggest, quite wrongly, that in fact the complaint made by Jeremiah Mahoney could not be given any credit. Do you understand that?
A. I think I know what you're getting at but - no. " (T 374.15 to 374.36.)
...
" Q. I suggest to you that you didn't form any genuine view that the demeanour of Jeremiah Mahoney did not appear to be consistent with a victim that had been threatened with a firearm, did you?
A. I did form that opinion.
Q. And I suggest to you that you did not genuinely form the view that Mr Jeremiah Mahoney's information he supplied to you was not convincing in his version, and he was not overly concerned with his safety.
A. I did form that opinion. " (T 385.5 to 385.14.)
185In re-examination, this evidence was given:
" Q. You were asked some questions about various descriptions, given by witnesses, of what had been seen on the night as compared with what Mr Jeremiah Mahoney had described as the clothing on the night of 27 July. Remember that?
A. Yes.
Q. What part, if any, did the description given on the night, as compared with the descriptions given on the night of the shooting, play in your formation of your opinion?
OBJECTION. MATTER DID NOT ARISE IN CROSS-EXAMINATION. QUESTION ALLOWED
A: The description given by Nathanial Mahoney on the night that I went to his house on the 27th, it was strikingly similar, if not almost the same exactly, of the description given by him on the night of the 20th, which is the night of the shooting.
NEIL
Q. You mean Jeremiah Mahoney?
A. Sorry, Jeremiah. There's three brothers, so yes, Jeremiah.
Q. And the fact that it was strikingly similar, what was the significance of that to you?
OBJECTION. QUESTION ALLOWED
WITNESS: Sorry?
NEIL
Q. What was the significance of that striking similarity to your opinions?
A. It was basically the same clothing that was used in the shooting, being the orange-reddish coloured shirt, the blue jeans and joggers, and the firearm, the description of a silver handgun.
Q. Set aside the firearm for a moment. You formed some opinions that caused you to doubt the version that had been given to you on the night of the 27th by Jeremiah Mahoney. Correct?
A. That's correct.
Q. What I'm asking you is, how did the description of the clothing compare with the previous description assist you in forming your opinions?
OBJECTION
KENNEDY: I accept your Honour's ruling.
WITNESS: Sorry?
NEIL
Q. You formed an opinion that, at least, there was some doubt about what Jeremiah Mahoney was telling you on the night of the 27th.
A. Yeah.
Q. Did his description of the clothing, on that night as compared with the previous occasion, involve you in having some doubts?
A. Yeah, it did.
Q. Why?
A. Because a person of that exact description and clothing turning up at his house, and basically doing the same thing again, I formed the opinion that was extremely doubtful.
Q. What was the effect of his description of the pistol as being the same as before, in terms of your opinions?
A. It was almost to the exact description.
Q. So why did that affect your opinions?
A. It was basically the same as before, and again highly unlikely that the exact same handgun or firearm would be used.
Q. Why, in your opinion, would it be highly unlikely that the same clothing would be used on the two events?
OBJECTION. QUESTION ALLOWED
A: I find it highly unlikely that the exact event would occur again.
HIS HONOUR
Q. But it didn't occur again, this was a man coming back to complain about the fact that he'd been assisting police. This was a threat that he went back and made, wasn't it?
A. Yeah, that's right
Q. Because of what he'd been saying to the police.
A. That's correct, yeah.
Q. What was so unlikely about that?
A. I just formed - this is with their demeanour as well, that, you know, someone under duress and threat, and highly emotional, has told to me he was over the emergency line, which I haven't heard, then when we spoke with him, he could get down to a tee the exact clothing in the minimal time that, apparently, this threat took place; that was a whole bunch of circumstances, including the description of the clothing, the firearm.
Q. But isn't that why you issue descriptions of people, what they've been wearing, so the people will say, "Oh, that's strikingly similar to what the police have said so it must be the same one"? Or could be the same one? Didn't it strike you that perhaps it was more than coincidence?
A. There was a possibility, I would say, but I formed the opinion that just their blas attitude once we were there, you know, and all the other circumstances I've already explained, I formed the opinion that they weren't telling the truth, and this description given by Mahoney was made up, and he already knew what the clothing of the person was that was previously involved.
Q. But he'd been there at the time, when the shooting had occurred.
A. That's right.
Q. That was his history to the police, that the person who'd been responsible for the shooting turned up again and threatened him. What was so surprising about that - or unbelievable about that?
A. I just formed the opinion it was.
NEIL
Q. To understand what you're saying, you formed the same view in relation to the pistol.
A. That's correct.
Q. Why is that?
A. I'd found it striking - highly unlikely that it would occur again with this - you know, with the description he gave. It was so precise, but again, someone under duress, and you know, threatened - feared, yet he could tell me what brand it was and - when I say "brand", like, he described a 7 millimetre silver handgun. " (T 386.12 to 388.41.)
186It would seem that Detective Constable Ryder also brought to bear a great deal more critical analysis of this inconvenient sighting of the shooter than she had between 20 and 25 July in relation to what little had connected the plaintiff to the offence. In a document dated 9 August 2006 called 'Incident report by Jeremiah Mahoney', this was said:
"On 27/7/2006 the witness Jeremiah Mahoney contacted '000' and stated that he had been threatened at his home by a male person with a pistol. He stated that the male was similar to the person who shot his friend Tom Neville at his unit on 20/7/2006.
Det Sgt's Pryde & Davey attended and spoke to Mahoney. He gave a version of police that: someone knocked on his door. He yelled out 'who is it'? and after no answer he opened the door a few inches. The outside of his unit (foyer) was in darkness, but he saw a male person he thought was similar to the person that shot his friend the week before. He states that he was wearing the same clothing as the night of the shooting, red coloured jumper, blue jeans and white & blue joggers. The male person said "keep talking to the Police and I'll shoot you" or something similar. Mahoney then slammed the door. Mahoney was asked how long he had the door opened? He replied only a second or two.
This amount of time and the small space the door was opened and the foyer area being in darkness, adds to a doubtful report by Mahoney. When further questioned Mahoney changed him (sic) version to be looked like the guy from last week
...
The description of Jeremiah Mahoney and Thomas Neville did not appear to be consistent with a victim that had been threatened with a firearm, considering that Neville was shot a week earlier. Both were very vague with information and did not appear believable. A statement was arranged to be taken from Mahoney." (Sic)
187Although the note implicitly asserts police received information from Mr Neville, as seems to follow from Detective Sergeant Davey's evidence, Mr Neville had not given any information.
188A statement was taken from Mr Mahoney on 12 August by Detective Constable Ryder. In it he said of the visit to his unit by the shooter inter alia:
"[7] When I opened the door the lights in the stair well were not on and the only light in the area was from the moon light coming through the window and some of the light from my lounge room was shining out as well. I would describe it as being about 50/50 lit. As I opened the door I saw a male person, who was about 5'4" tall wearing a red jumper and jeans. I can't remember anything else about what he was wearing. I saw that he was holding a small silver coloured pistol in his right hand. He wasn't pointing the gun at any particular direction he was just waving it around. He said, "If you say anything else I will come back and shoot you."
[8] I immediately slammed the door shut and locked it. I called Police on 000. The whole time of the incident would have been no longer than 30 seconds. From where Tom was sitting on the couch he would not have been able to see the front door as the pillar is blocking his view. He has told me that he heard me slam the door and that is it. Tom has told me that he did not hear the comments made by this male.
[9] When he said "If you say anything else I will come back and shoot you" I took this to mean that if I assisted the police in relation to Tom being shot the previous week he would come back and shoot me. I have no reason to think that it would be in relation to anything other then the shooting of Tom on 20 July 2006."
189It will be recalled that when he had made the 000 call on 27 July he had said the man who had come to his unit had been "the same guy again", "small, middle eastern appearance, mid 20s-30s," [wearing a] red hooded jumper, jeans and white and blue shoes, 5'4"- 5'5" in height, a man he knew as 'Mick'.
190On the same day as she took that statement, Detective Constable Ryder created a document for the police investigation file headed "Second statement of Jeremiah Mahoney", in which she referred to his visit that day to Granville Police Station. She recorded inter alia:
"Mahoney claimed that the person who had shot Thomas Neville had returned to his unit and threatened him. After obtaining the statement Mahoney stated to police that he was only about 50% sure that it was the same person. He admitted that he only saw the person for a couple of seconds in a dark stairwell."
When cross examined about that note she could not explain why its content had not appeared in the signed statement. The statement, to my observation, is lengthy and detailed, and apparently prepared by her with a great deal of care. I shall return in time to consider the implications of this addition to what she claimed to have been told by Mr Mahoney.
191I have referred above to the sighting of the shooter, by the Neville brothers, at the Parramatta Mall. A diary entry for 27 July signed and made by Detective Constable Ryder says inter alia:
"Spoke with Jeremiah, and Neville's- convinced it was shooter in Parra Mall. Attended mall + parole made KL04 broadcast... Gave Ardill + Fulham photo of Zreika to ID. Rang back to arrange..."
192On 3 August 2006 Detective Constable Devlin wrote to Mulawa Correctional Centre requesting an interview with Sarah Bright, who though granted bail, had not succeeded in satisfying bail conditions. On the same day she wrote to Parramatta Local Court requesting CCTV footage from the court room where Ms Bright had appeared on 21 July, asserting "Police have reason to believe [her co-offender] had attended the court [that day] to make attempts to bail Bright out". This issue was not elucidated before me and no submissions were made about it.