R v Abdaly; R v Hosseinishoja (No 6) (Verdict)

1. [1]

   Sayed Anush Abdaly and Seyed Amirmohammad Hosseinishoja stand charged jointly with the murder of Nikola Srbin on 5 June 2013 at Redfern. Each man pleaded not guilty and elected to be tried by Judge alone. The Director of Public Prosecutions opposed the application for a Judge alone trial, but I made an order under s 132 of the Criminal Procedure Act 1986 (NSW) that the accused be so tried. [1] The trial proper commenced on Wednesday 9 November 2022 at 2.00pm. The true issues in dispute are quite confined.

2. [2]

   There is no dispute that Mr Srbin was unlawfully killed by a group of about 10 men who were directed or arranged by a gangster called Abuzar Sultani. Mr Srbin was bashed to death by members of that group, all of whom (it seems) were acting together pursuant to a joint criminal enterprise. Sultani was intervening in a dispute about drugs involving Nikola Srbin and a man who is only to be called by the rather unimaginative pseudonym “Witness A”. [2] Witness A was involved in selling drugs on behalf of Sultani. He also had other contacts in the drug milieu and there is conflicting evidence as to whether he was selling drugs regularly for Mr Srbin’s father.

3. [3]

   Both Sultani and Witness A were present at the time of the killing. Witness A pleaded guilty to manslaughter and served a sentence of imprisonment. Witness A gave evidence at the trial. He said (once various dots are joined) that both accused men were present and actively took part in the bashing and killing of Mr Srbin. His evidence is disputed in many important respects. When all is said and done, these cases come down to whether I accept that his evidence is truthful and reliable. While there is evidence, other than the testimony of Witness A, that supports aspects of the prosecution case, none of that evidence provides direct support for the proposition that either of the accused were part of the group that killed Nikola Srbin. For that reason, before I could convict either of the accused, I must be satisfied beyond reasonable doubt that Witness A’s evidence is honest, accurate and reliable, at least in respect of his allegations against the two accused men. However, I do not need to be satisfied beyond reasonable doubt of every aspect of his testimony.

4. [4]

   I am required to articulate the principles of law I have applied, the findings of fact I have made and the process of reasoning I have followed. [3] This will require me to set out some of the evidence in a little detail. However, I will not set out evidence which is not in dispute, or which is unimportant, but will simply record my factual findings.

Principles of law

1. [5]

   Before turning to the facts and evidence, I will summarise briefly the relevant principles of law that I have applied. I am required to take into account any warning or direction that would be given to a jury hearing the case. [4]

2. [6]

   The onus of proof is on the prosecution, and it does not shift. Even if the accused were to run a positive case or call evidence, and neither of them did other than through the cross-examination of the witnesses, the rejection of that case does not relieve the prosecution from its onus to prove the case against the individual accused. [5]

3. [7]

   The standard of proof is beyond reasonable doubt. Those words are ordinary words and need no further elaboration. It is a very high standard of proof and is to be distinguished from suspicion, however grave, and proof on the balance of probabilities.

4. [8]

   The prosecution is required to prove each element of the offence beyond reasonable doubt. It does not have to prove every disputed fact to that standard. Nor is the prosecution required to prove the truthfulness or reliability of each or any of its witnesses beyond reasonable doubt. Where reliance is placed on circumstantial evidence, there is no requirement that the individual items of evidence be established beyond reasonable doubt.

5. [9]

   The ultimate question is whether, on the whole of the evidence, each element of the offence of murder is established beyond reasonable doubt. If there is a reasonable doubt in respect of any element of the offence, the individual accused whose case is under consideration must be found not guilty. If there is no such doubt, the accused must be found guilty.

6. [10]

   Proof of the charge against each accused is dependent on the evidence of Witness A. For that reason, it is necessary to be satisfied beyond reasonable doubt of the critical aspects of his evidence as it pertains to each accused. However, Witness A’s evidence is not to be considered in isolation and the whole of the evidence must be considered in deciding whether the critical parts of his evidence, and therefore the elements of the offence, are established beyond reasonable doubt. Further, rejection of parts of Witness A’s evidence will not result in rejection of the whole of his evidence. However, any reasonable doubt about a part or parts of his evidence must be considered in deciding whether to accept the whole of his evidence and, significantly, those parts which are critical to proving the prosecution case.

7. [11]

   In each case, the critical part of Witness A’s evidence is that the accused whose case is under consideration was present at the time of the bashing of Mr Srbin.

8. [12]

   The case against each accused is to be considered separately. While the trials were heard together, and almost all the evidence was tendered against both accused, there is no reason in law, or on the facts and evidence in the trial, why the verdicts must be the same. By way of example, it may be that there is a reasonable doubt about the “identification” of one of the accused as being part of the group, but no such doubt in relation to the other. That may arise because Witness A’s knowledge of one of the accused is more convincing or extensive or because other witnesses at the scene provide a description of one of the assailants which is consistent with the appearance of one of the accused men. These are hypothetical examples, although they also have some basis in the evidence.

9. [13]

   While the cases must be considered separately, if there is a reasonable doubt about the guilt of one of the accused, or a reasonable doubt about Witness A’s evidence in relation to that accused, that doubt must be considered and analysed closely in considering whether the case against the other accused is established beyond reasonable doubt. The extent to which any such reasonable doubt would impact on the case of the other accused will depend on the reasons for the doubt.

10. [14]

    For example, if I had a doubt about Witness A’s honesty in nominating one of the accused, that is likely to be relevant to a decision in the case of the other accused. Conversely, if the doubt was based on the possibility that Witness A was mistaken about the involvement of one of the accused, that may have little impact on his evidence in relation to the other accused, particularly if there is better evidence of his knowledge and earlier interaction with the other accused. It will turn on the circumstances and the basis of the reasonable doubt. But in every instance, a reasonable doubt experienced as to aspects of Witness A’s evidence must be considered in the case of both accused.

11. [15]

    In making findings of fact, and determining the correct verdict, my decision making and fact finding must be based on the evidence. I must not speculate about things that are not the subject of evidence and I must put aside matters of emotion.

12. [16]

    This includes disregarding any prejudice that may arise from my knowledge that the deceased, the accused and various witnesses were involved in the criminal milieu. I must not act on any prejudice that arises from the participants’ association with Mr Sultani, their affiliation to criminal gangs, or their involvement in drug dealing and other crimes. Those matters are relevant, but they must not be used to reason in a prejudicial way. For example, I would not reject Witness A’s evidence because he is a drug dealer who turned to a known criminal when he fell into dispute over a small amount of money. Equally, I must not reason that because one or both accused men were members of the Rebels Motorcycle Club (“Rebels”) and involved in other criminal and violent acts that they are therefore guilty of the offence. The prosecution has not relied on tendency evidence, and it would be wrong to reason that one or other of the accused is guilty because there is evidence suggesting they are a person of bad or questionable character.

13. [17]

    Similarly, feelings of sympathy must be put aside including sympathy for Mr Srbin and his family, or for the accused who have waited so long to have these serious allegations resolved.

14. [18]

    In the course of argument over a number of pre-trial issues, I have read various documents that are not in evidence at the trial. This included three versions of the “Crown Case Statement”, confidential material provided by the Commissioner of Police in connection to various applications and statements of witnesses, some of whom were called to give evidence, and google searches relating to the accused and the Rebels.

15. [19]

    I have disregarded that material in reaching a verdict in this case. I have only acted on the evidence adduced in the trial itself.

16. [20]

    Further, during the cross-examination of Witness A, a volume of material was marked as MFI 35. This included interviews and statements by Witness A and documents purporting to record things that he has said over the years. The MFI was provided to the witness and a working copy was provided to me. The latter course was somewhat unusual but helpful in allowing me to follow the cross-examination. However, only a small portion of the volume was actually shown to, or adopted, by the witness. In some instances, he either denied saying the things recorded or could not remember saying them. At the conclusion of the cross-examination, both folders were returned to Senior Counsel. As the cross-examination unfolded, I actively attempted not to read ahead or look at parts of the documents that were not subject of the interrogation. I cannot guarantee that I did not read parts of the material that were not referred to by counsel or adopted by the witness.

17. [21]

    The documents contained in the MFI do not form part of the evidence. I have disregarded the material I saw during the cross-examination.

18. [22]

    It is also the case that Mr Sultani entered a plea of guilty on the second day of the pre-trial hearing. A draft statement of facts was marked for identification. [6] I have not read the draft statement of facts and have disregarded my knowledge that Mr Sultani pleaded guilty. The fact of his plea was not tendered in evidence, although Mr Sultani’s involvement in the sad events that unfolded was not a matter of dispute in the trial.

19. [23]

    In assessing the evidence of the witnesses, and in particular the evidence of Witness A, I have paid close attention to the way in which they gave evidence, that is, what lawyers like to call their “demeanour”. I have considered the consistency of the witnesses’ accounts and the way they reacted to being confronted with any inconsistency. I have observed any hesitation in providing answers to questions asked in cross-examination and whether they answered the questions directly, prevaricated or evaded the questioning. I have noted relatively subtle changes in the tone of the answers and their facial expressions when answering questions.

20. [24]

    However, I am conscious of “the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses” and “scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances.” [7] The reality is that “[s]ome witnesses are good at lying” and some may “have come to believe the truth of their testimony, unreliable though it may be”. [8]

21. [25]

    I have placed limited reliance on my intuitive impressions of the witnesses, although those impressions have, or must have, informed my decision making to some degree. Where I am conscious of the role such impressions played, I will attempt to be transparent in explaining my reasons.

22. [26]

    I must take into account directions and warnings that would be given in relation to the evidence of Witness A. These include:

    1. (1)

       Because the prosecution case turns on Witness A’s evidence, his evidence must be scrutinised with great care.

    2. (2)

       On the other hand, there is no requirement that his evidence must be corroborated. If his evidence is accepted, it is capable of supporting a finding of guilt in relation to one or both of the accused.

    3. (3)

       Witness A was criminally concerned in the events that resulted in Mr Srbin’s death. He was involved in drug dealing with Sultani and, to some degree, the Srbins. He owed the latter $400 for some drugs. He contacted Sultani seeking his help to resolve his dispute with the Srbins. Even if (as he asserted in evidence) he did not intend that Mr Srbin be assaulted, he became aware that this was likely when Sultani gathered the men together at the “Nascent Burwood Clubhouse”. [9] He was present at all relevant times including when the fatal assault on Nikola Srbin was committed. The law recognises that evidence given by a person who was criminally concerned in the events may be unreliable. Some of the reasons for that potential unreliability, both generally and in this case, are:

    4. (4)

       If this was a jury trial, I would not direct the jury that it would be dangerous to convict on Witness A’s uncorroborated evidence. However, it is a case where the tribunal of fact should look for evidence capable of providing support for his evidence before acting on it.

    5. (5)

       Still, as I have said, there is no rule of law that the evidence of any witness must be corroborated before it is acted upon. [10] If, after undertaking the close scrutiny of the evidence, it is found to be truthful and reliable in its material respects, the Court is entitled to, and should, act on it.

    6. (6)

       These directions and warnings ought not to be taken as suggesting as a matter of law that Witness A’s evidence is, in fact, unreliable.

23. [27]

    While canvassing those directions about the evidence of Witness A, I referred to the possible motive to lie that may exist in a witness who was criminally concerned in the events. Another important matter of law is that it is not for an accused person to establish a motive in a witness to lie. Where such a motive is suggested, I must consider that motive. However, even if the motive suggested by the accused is rejected, that does not necessarily bolster the credibility of the witness’s evidence. The witness may have a motive to lie that nobody knows about. [11]

24. [28]

    Neither of the accused participated in interviews with police when they were arrested and neither gave evidence in the trial. The fact that they exercised their right to silence cannot be used against them in any way. It cannot be used to fill in the gaps in the prosecution case.

25. [29]

    Senior Counsel for Mr Hosseinishoja acknowledged that this is “not really an identification case”. [12] Rather, it is a case where Witness A says he knew each of the accused and says they were present before and during the incident. In Mr Hosseinishoja’s case, Witness A also said the accused was present after the incident when he (Witness A) was detained back at the clubhouse. The prosecution relies on other evidence as to the nicknames of the accused to link Witness A’s assertions to the individual accused. It seems to follow that, in Mr Hosseinishoja’s case, a warning as to the possible dangers of identification evidence is not necessary.

26. [30]

    Senior Counsel for Mr Abdaly took a different approach and asserted that such a direction is necessary. She emphasised that her client’s case is that “[Witness A] didn’t even know Abdaly at this time and only came to know him afterwards”. [13] It was submitted that a direction is necessary both in terms of whether Witness A was lying and concerning the possibility that he was mistaken in identifying and asserting Mr Abdaly was present.

27. [31]

    A warning concerning the dangers of identification evidence does not normally encompass the possibility of dishonesty on the part of the witness. The warning is usually designed to counter the seductive nature of such evidence given by a truthful witness in circumstances where the history of the law is littered with examples of wrongful convictions based on identification evidence given by an honest witness who truly believes they are identifying the person who committed the crime.

28. [32]

    As things developed, the issue (in Mr Abdaly’s case) became tied up with the failure of Senior Counsel to put squarely to the witness either that there was no “Zak” in the group or that Witness A had mistaken the person he said he knew as “Zak” – and later “Anush” – for one of the other tall members of the group with similar names. I will call this the Browne v Dunn issue. [14]

29. [33]

    I will come back to consider the Browne v Dunn issue. While I remain conscious of the possibility that an honest witness may be mistaken, and in Mr Abdaly’s case that Witness A did not really know him well at all, I am not inclined to direct myself that identification evidence may be unreliable. I may have taken a different approach if there was a jury. However, this is a Judge alone trial and the question of whether Witness A was honest is the central issue. I am very conscious of the argument that he may be mistaken, but I see this as a question of fact, rather than a legal issue that requires me to approach the case as though, as a matter of law, Witness A’s identification evidence may be unreliable.

30. [34]

    In addition to direct evidence, I may draw reasonable inferences or draw conclusions from the proven facts. The individual facts do not need to be established to any particular standard. However, the more certain those primary facts are the more readily the inference might be drawn.

31. [35]

    If the case was based on circumstantial reasoning alone, it would be necessary to consider all other reasonable inferences or hypotheses and exclude them before drawing the guilty inference.

32. [36]

    However, the case against both accused is reliant on the direct evidence of Witness A. However, there is some circumstantial reasoning involved. In particular, Witness A has never nominated the accused by their actual names. In each case, the prosecution requires me to draw an inference that his references to “Moe”, “Moey” or “Michael” are references to Mr Hosseinishoja and his references to “Zak” and “Anoush” are references to Mr Abdaly.

33. [37]

    That link is (or those links are) in the circumstances of this case, an essential part of the process of reasoning and must be established beyond reasonable doubt.

34. [38]

    The assault of Mr Srbin took place on 16 May 2013. Mr Hosseinishoja was not charged with the offence until 26 October 2020 and Mr Abdaly was not charged until 9 November 2020. This delay has potentially placed them at a forensic disadvantage in defending themselves against these allegations. Witness A did not participate in an identification procedure until 2019, following a visit to the Crime Commission and the making of a statement to police in 2018. The accused are now confronted with an argument that his failure to identify them was the result of the effluxion of time. Also, the accused cases (as put in cross-examination) are a flat denial of being involved. Neither called evidence to establish an alibi. Again, the delay in charging may have limited their ability to remember, let alone establish, where they were on the night of the assault.

35. [39]

    A direction about “forensic disadvantage” is not necessary in a jury trial unless there is a “significant forensic disadvantage” which might include things like the death of witnesses or the loss of evidence. [15]

36. [40]

    There is no disadvantage of such magnitude in the present case. As the Prosecutor submitted, the delay was not as extreme as in many cases where such a direction is given to a jury. However, there may be cases where even a relatively short delay will give rise to an established (and significant) forensic disadvantage. This is not such a case, and no evidence was led to suggest that it is.

37. [41]

    I have not taken the delay, or any disadvantage suffered by the accused, into account in reaching my conclusions.

38. [42]

    I heard helpful addresses from the Prosecutor and Senior Counsel for each of the accused. I have taken their submissions into account and given the arguments the weight they deserved. I have kept in mind that the addresses are not evidence. I will not set out all of counsels’ arguments in this judgment but will make reference to some of them, and many are reflected in my reasoning and findings.

39. [43]

    The Browne v Dunn issue arose fleetingly during legal submissions before the addresses. [16] It became the focus of a spirited debate after Ms Cunneen delivered her closing address (and following Mr Brady’s address). [17]

40. [44]

    The nub of the issue is this: Witness A said he knew Mr Abdaly by the nickname Zak and later came to know that he was called Anush. [18]

41. [45]

    In her closing address, Ms Cunneen raised the question “who is Zak?” [19] and made a strong submission that there is no evidence, other than that given by Witness A, that Mr Abdaly was ever known by that nickname. She went on to remind me of evidence that there were other people in the group with similar sounding names, who were quite tall, such as “Sass”, “Wais”, “Siar”, “Ismail” and “Ziggy” (because it starts with a “Z”). [20]

42. [46]

    The Prosecutor complained that Ms Cunneen did not put to Witness A that he was wrong or mistaken in suggesting that Mr Abdaly (or Anush) was also known as Zak or put to any other witness that there was no person in the group with that nickname. Nor was it put that Witness A may have mistaken Mr Abdaly for any other member of the group with a similar name. It was further put (in effect) that there was no hint that this was an issue until the closing address on behalf of Mr Abdaly. The Prosecutor sought a direction formulated in various ways but ultimately, putting the pieces together as best I can, to the following effect: [21]

43. [47]

    Ms Cunneen attempted to mount a submission that the propositions were implicit in many of her questions to Witness A. To be blunt, they were not. For example, the conclusion of her cross-examination was as follows: [22]

44. [48]

    This cross-examination was predicated on an assumption that Mr Abdaly was known as Zak or that the witness believed he was so known. When Ms Cunneen put that the witness “had not met Zak by that time”, this was a reference to Mr Abdaly. There was no hint or implication that Zak was not his name, that there was somebody else in the group called Zak or something similar.

45. [49]

    After Senior Counsel skirted around the issue in argument, she conceded quite properly: “Well your Honour I didn’t do it.” The Court then took a short break. When the argument resumed, Ms Cunneen said:

46. [50]

    The rule in Browne v Dunn is an important rule of fairness. In some cases, it involves fairness to the witness. In others it involves fairness to a party who may be taken by surprise. I accept that the Prosecutor in this trial was caught unaware when the submissions were made in defence counsel’s closing address. It is established that the extent to which the rule might be used to draw inferences adverse to an accused in criminal proceedings is extremely limited. [24] Speaking generally, an accused person is not required to disclose their defence and does not have an onus to prove anything. Even so, where counsel makes a “forensic choice”, with good reason, not to explore a matter but to rely on gaps in the evidence, the extent to which those gaps may be used can be limited. As Gleeson CJ and Heydon J said in MWJ v The Queen at [19]:

47. [51]

    While the factual circumstances of the present case are less stark, I will take the same approach to the submissions made in relation to the lack of evidence (apart from Witness A) that Mr Abdaly went by the nickname Zak, whether Witness A may have mistakenly identified somebody else in the group with a similar sounding name (and appearance), or whether there was some other Zak to whom Witness A was referring.

48. [52]

    I direct myself as follows:

    1. (1)

       There is no evidence to support Witness A’s account that Anush was also known as Zak. That is potentially relevant to his credibility and to the prosecution case that they were the same person.

    2. (2)

       However, Witness A was not given an opportunity to answer the suggestion that he made a mistake about the name, that there may have been somebody else called Zak or that he may have mistaken Zak for another member of the group. Nor was any other witness, such as RS 1546093 (“RS 093”) (who gave evidence) or RS 1521670 (“RS 670”) (who was not required for cross-examination), asked questions on this issue.

    3. (3)

       There is no evidence that any other associate of Sultani went by the name Zak.

    4. (4)

       I am entitled to (and will) give less weight to the submissions made on this topic.

49. [53]

    I do not suggest that such directions would be appropriate in a jury case. It will depend on the circumstances of the case as to the proper directions to be given.

50. [54]

    While this matter was subject to quite forceful submissions on both sides, it is ultimately not an issue of great moment. On an evidentiary or factual level, there are two main reasons for this.

51. [55]

    First, as I observed during the submissions, [25] Witness A’s state of knowledge was a “continuum”. He ultimately identified the relevant “offender” by the name Anush, which is clearly a reference to Mr Abdaly (being his middle name). The fact that he also called him Zak, or originally knew him as Zak, does not fundamentally undermine his evidence that Anush (Mr Abdaly) was present and that he was the person who hit the deceased in the head with a baseball bat.

52. [56]

    Secondly, there is no evidence that any other person in the group was called Zak. Establishing an absence of evidence does not equate to proving the negative. Whatever be the state of knowledge of other members of the group, Witness A says that he thought Anush was also called Zak. There is no doubt he attributed to Mr Abdaly both presence at the scene and wielding the baseball bat. He may be mistaken about that. He may be lying about it. He may be truthful and accurate. But those propositions do not turn on the absence of independent evidence that Anush was also known as Zak.

53. [57]

    In addition to his complaint concerning Ms Cunneen’s submissions relating to the “Zak issue”, the Prosecutor also sought a number of other directions arising from the defence addresses. Most of these were really matters of evidence where, it was put, defence counsel went too far. In most instances, I was conscious of the liberties taken in the addresses and was not going to be influenced by the hyperbole and flourish. However, I acknowledge the Prosecutor’s complaints and should briefly record them.

54. [58]

    The Prosecutor complained about Ms Cunneen’s submission that Mr Abdaly was still at school in 2011. He said there is no evidence that Mr Abdaly was in school at that time. This issue arose in the context that Witness A gave evidence that he had been told that Sultani went to school with, amongst others, Mr Abdaly. It is not contested that Sultani and Mr Hosseinishoja attended school together at Arthur Phillip High School.

55. [59]

    The Prosecutor’s opening address included:

56. [60]

    The Prosecutor relied on this as part of the “close association” between the accused and Mr Sultani.

57. [61]

    Ms Cunneen contested this issue from the start of the trial. Her opening statement included:

58. [62]

    Ms Cunneen also put to Witness A that her client did not go to school with Mr Sultani. He agreed that Sultani had never directly told him that the attended school with Mr Abdaly. [28]

59. [63]

    Spiros Filipou, who went to school with Mr Sultani and Mr Hosseinishoja at Parramatta High School, gave evidence he had never met or heard of Mr Abdaly. [29]

60. [64]

    The officer in charge of the police investigation, Mr Hunt, was also cross-examined on this issue:

61. [65]

    Some of those answers are surprising given that the evidence was given on the last day of evidence in the trial, a long time after it was clear that the prosecution case on this issue was disputed. It is surprising that no inquiries were made once the issue was squarely raised at the beginning of the trial.

62. [66]

    In her closing address, Ms Cunneen made several submissions on this issue. Most were critical of the failure of the prosecution to investigate the issue. Those criticisms were, insofar as it matters, justified.

63. [67]

    However, Ms Cunneen also asserted that Mr Abdaly in 2011 “is still well at school”. [31] She had earlier submitted “Mr Abdaly of course was 16 for a third of 2011 and 17 for the rest and still in school uniform at Homebush Boys High School.” [32] The Prosecutor complained there was no evidence that Mr Abdaly was at school in 2011. The Prosecutor’s submission is correct and I direct myself accordingly.

64. [68]

    While dealing with such things, I remind myself that counsels’ opening and closing addresses are not evidence. This includes the Prosecutor’s opening statement which, if it was implied that Mr Abdaly was at school with Mr Sultani, was not supported by evidence.

65. [69]

    The Prosecutor complained that Ms Cunneen submitted, in the absence of evidence, that Witness A was a “would be gangster” and a “lifelong con man and an evil one”. [33]

66. [70]

    The Prosecutor is correct that I must disregard such flourishes.

67. [71]

    The Prosecutor’s complaint was hardly necessary in the circumstances. Earlier in her address Ms Cunneen said that Witness A “must be one of the greatest liars left unhung”. At that point in the address, I reminded her that there was no jury in the courtroom. Unperturbed, Senior Counsel went on to describe Witness A as a “special case” and “maybe one of the most untrustworthy people police have ever reposed belief in for the purposes of charging people with murder.” [34] Such colourful language, while entertaining and perhaps good for client relations, is very easy for a judge, sitting alone, to ignore. I have done just that and did not need the Prosecutor to remind me to do so.

68. [72]

    As I told the Prosecutor when he raised these issues, I will treat Witness A “as I found him based on what he said he has done and others have said he has done.” [35]

69. [73]

    The Prosecutor then complained about Mr Brady’s submission that Witness A spoke to Harry Charalambous (“Harry”) for 3 minutes and 12 seconds on 16 May 2013 at 10.51.04pm. It was submitted this was an overstatement of the evidence and that all that was proved was that the two ‘phone services were connected for that length of time.

70. [74]

    Mr Brady said his submission was that the overwhelming inference to be drawn from the evidence in Exhibits 16 and 17 (the identical agreed tables of communications) was that there was a conversation between Witness A and Harry.

71. [75]

    I accept that there are limitations to what these telephone records can prove. In relation to the particular entry at 10.51.04pm, there is a dispute (despite what the document says) as to who was using the service with number xxxx xxx 915 at the time of that connection.

72. [76]

    I do not accept the criticism made of Senior Counsel’s submission on this issue. I accept that Mr Brady made a legitimate submission (whether I accept it or not) as to inferences that can be drawn from the records.

Proving the crime of murder: the elements of the offence, joint criminal enterprise and extended joint criminal enterprise

1. [77]

   The elements of the offence of murder are:

   1. (1)

      The accused committed a voluntary act.

   2. (2)

      That act caused the death of Nikola Srbin.

   3. (3)

      The act was done with an intention to kill or inflict grievous bodily harm (or with reckless indifference to human life).

2. [78]

   This is not a case where recklessness (in element 3) has any real role to play. If the prosecution case is accepted, the inference that the perpetrators acted with an intention to inflict (at least) grievous bodily harm (which means really serious physical injury) is overwhelming.

3. [79]

   The prosecution presents its case on the basis of “common purpose” or “joint criminal enterprise”. Under this principle, it is not necessary to establish which member of the enterprise committed the act or acts causing death. Each member of the group is legally responsible for the acts of the other members who share the common purpose.

4. [80]

   To establish the crime of murder by joint criminal enterprise, the following things must be established beyond reasonable doubt:

   1. (1)

      The existence of a joint criminal enterprise to murder Nikola Srbin.

   2. (2)

      The accused joined and was part of that criminal enterprise.

   3. (3)

      The accused did not withdraw from the criminal enterprise. It is unnecessary to speak further about the legal requirements for withdrawal from such an enterprise because this is not an issue in the case. There is no evidence that either accused withdrew from the enterprise in any relevant sense; the case of each is that they did not join the enterprise in the first place.

   4. (4)

      Between them, the members of the group committed all the elements of murder.

5. [81]

   The prosecution also relies on an alternative case based on extended joint criminal enterprise. To establish its case in that way, the prosecution must prove:

   1. (1)

      The accused entered a joint criminal enterprise to commit some less serious crime. That might include assaulting or wounding the victim.

   2. (2)

      The accused contemplated the possibility that one or more of the group may commit the crime of murder including doing the act that caused Mr Srbin’s death and doing so with an intention to kill or inflict grievous bodily harm.

   3. (3)

      That between them, the members of the group committed each of the elements of murder, including the mental element (intention to kill or inflict grievous bodily harm).

6. [82]

   As I have said, in a case based on a joint criminal enterprise or extended joint criminal enterprise, the prosecution need not prove that the accused committed the act causing death. The accused is responsible for the acts of the other members of the group provided either the common purpose was to murder Mr Srbin or the accused contemplated or adverted to the possibility that Mr Srbin would be killed by another member of the group acting with an intention of killing or inflicting grievous bodily harm.

7. [83]

   If the prosecution failed to establish the crime of murder, because it failed to prove the mental element of the offence or because it did not establish that the accused joined a criminal enterprise to murder Mr Srbin, or that they did not contemplate the possibility that murder would be committed by other members of the enterprise, there is an alternative verdict of manslaughter.

8. [84]

   The elements of the offence of manslaughter, when the prosecution relies on a killing by way of an unlawful and dangerous act, are as follows:

   1. (1)

      The accused committed a voluntary act.

   2. (2)

      That act caused the death of Mr Srbin.

   3. (3)

      The act was unlawful in the sense that it was not justified or excused, for example by self-defence or the lawful execution of duty.

   4. (4)

      The act was dangerous in the sense that it carried with it an appreciable risk of serious injury.

9. [85]

   Again, the prosecution relies on joint criminal enterprise to prove this alternative offence. To establish manslaughter by joint criminal enterprise it must prove beyond reasonable doubt:

   1. (1)

      The existence of a joint criminal enterprise to assault Mr Srbin.

   2. (2)

      The accused joined that criminal enterprise.

   3. (3)

      Between them, the members of the group committed each of the elements of manslaughter by unlawful and dangerous act.

The real issues in the case

1. [86]

   While the prosecution relies on Witness A’s evidence that Mr Hosseinishoja struck Mr Srbin with a rubber mallet and Mr Abdaly struck him with a baseball bat, those matters need not be proved beyond reasonable doubt (or at all) for the case against each accused to be established. The prosecution does not seek to prove that either accused is a principal in the first degree. Rather, it puts its case exclusively on the basis of joint criminal enterprise or extended joint criminal enterprise. Subject to proof of intention, all that needs to be established in each case is that the accused was part of the group that committed the offence and that one or more members of the group did the act that caused Mr Srbin’s death.

2. [87]

   Neither of the accused disputed that Mr Srbin died on 5 June 2013 as a result of the head injuries he received on 16 May 2013 at the hands of a group of men organised by Mr Sultani. Nor was there any real dispute about the events that led up to the assault.

3. [88]

   The prosecution case is that Witness A knew Mr Abdaly as Zak and later as Anush. It suggests he knew Mr Hosseinishoja as Michael, Mo or Moey. The accused men do not dispute that they went by those names although issues were raised respectively as to the names Zak and (to a lesser degree) Michael. Nor do they dispute that they had met Witness A. However, each accused disputes Witness A’s evidence as to the extent of their interactions with him and his knowledge of them. That is a significant matter in the context of the real issue in the trial.

4. [89]

   The true and central issue in each of the cases is whether the accused was present at the clubhouse at Burwood before the assault and part of the group that assaulted the deceased at Redfern. It follows that each accused disputes the specific acts attributed to them by Witness A. This includes, in Mr Hosseinishoja’s case, that he collected a bag of guns which were distributed to the group, that he wielded “an Uzi with a suppressor” and that he hit Mr Srbin with a rubber mallet during the assault. In Mr Abdaly’s case, it includes the allegation that he struck Mr Srbin with a baseball bat.

5. [90]

   The accused also disputed Witness A’s account of the events after the assault. Witness A asserts that he was essentially held prisoner at the Burwood clubhouse and that Mr Hosseinishoja (Michael or Mo) tied him up with tape. Again, this is disputed as is much of the account provided by Witness A as to his movements after the assault.

Uncontroversial findings of fact

1. [91]

   Based on uncontradicted and uncontroversial evidence, I make the following factual findings:

   1. (1)

      Witness A was released from gaol, after serving a term of imprisonment for drug supply, on 8 October 2011.

   2. (2)

      He was introduced to Mr Sultani by Omar Moshref a short time later, perhaps a week after his release from gaol. He commenced selling drugs supplied by Sultani sometime thereafter and continued to do so until May 2013. The details of how this trade was transacted, and the frequency of his interactions, is controversial and potentially important. It may bear upon the extent to which Witness A knew each of the accused.

   3. (3)

      Witness A was also connected with Nikola Srbin, his father Jonel Srbin and Omar Moshref and may have dealt drugs on their behalf, although his evidence on this issue was not completely clear. [36] However, I accept that he received some “terrible” ice (methylamphetamine) from Jonel Srbin in early May 2013. The drugs were in the form of an “eight ball” (3.5 grams) and valued at $600. [37] At the time of the fatal assault, Witness A still owed Jonel Srbin $400. Jonel and Nikola Srbin attempted to have Witness A repay that money. Witness A’s evidence on this issue received some support in the evidence of telephone communications. [38]

   4. (4)

      On 16 May 2013, at around 11:00am, Nikola and Jonel Srbin and Omar Moshref paid Witness A a visit. Their purpose was to demand payment for the drugs. The evidence of the conversation and confrontation that morning was given by Witness A and a witness known as RS 1148048 (“RS 048”). I accept that threats were made and that Witness A was assaulted. The men said they would return at 6.00pm and expected payment of the $400. In that regard, Witness A’s account receives some support from a witness known as RS 1869816 (“RS 816”).

   5. (5)

      After the visit, Witness A contacted Sultani who asked him to meet at the Shangri-La Hotel. Witness A told Sultani what had happened. Witness A’s evidence receives some support from the telephone records. Sultani and Witness A then travelled to Burwood where a group of men gathered. This was organised by Sultani. Witness A estimated there were 15 to 20 men gathered at the unit.

   6. (6)

      The unit where the group gathered was to become the clubhouse of the Burwood Chapter of the Rebels motorcycle club. There is evidence of a lease being taken out on the premises commencing 6 May 2013, [39] and photographs showing a number of relevant players renovating the clubhouse. [40]

   7. (7)

      A number of men, probably 10, including Witness A and Mr Sultani, then travelled in two cars to xxxxxxxxxxxx George Street, Redfern. They arrived between 6.00pm and 7.00pm.

   8. (8)

      Meanwhile, Witness A was communicating with Jonel Srbin. As noted, Jonel Srbin said earlier in the day that he, his son (Nikola) and Omar Moshref would be returning to Witness A’s Redfern apartment at 6.00pm to collect the $400. There are various communications recorded in the telephone records between Witness A, Jonel Srbin and “Adrian” (ie Omar) Moshref.

   9. (9)

      Witness A’s group arrived and entered a courtyard at xxxxxxxxxxxxxx George Street en masse. Based on the oral testimony, CCTV and telephone records, the preponderance of evidence suggests this was at about 7.00pm.

   10. (10)

       Witness A was the first to enter the courtyard. Nikola Srbin and Omar Moshref were present. Jonel Srbin was not in the courtyard although he may have been in or near one of the apartments within the complex. RS 816 was also present. Two men that RS 816 had arranged to attend xxxxxxxxxxxxxxxx George Street at the appointed hour to provide protection or back-up for Witness A were outside the unit complex.

   11. (11)

       Witness A pointed at Nikola Srbin and identified him for the group. Sultani ushered Omar Moshref, to whom he was related, to the side. Witness A told the group that RS 816 was not “the father”, that is Jonel Srbin. It seems some members of the group may have thought that RS 816 was one of the “targets” of their intervention.

   12. (12)

       The fatal assault on Nikola Srbin took place over the ensuing (approximately) two to eight minutes.

   13. (13)

       Witness A and RS 816 left the scene and met at the nearby flat of Fred Collachi, another friend of Witness A (“Fred”). While they were there, Witness A paid RS 816’s two associates who had attended as back-up for Witness A. Witness A said he paid them each “a point” of methylamphetamine. There is CCTV footage showing the movements of Witness A and RS 816 at the xxxxxx building between 7.30pm and 8.30pm on 16 May 2013.

   14. (14)

       Witness A, RS 816 and another associate of Witness A and RS 816, Harry, travelled to the McDonald’s family “restaurant” in Stanmore. Witness A went by train and was captured on CCTV footage at both ends of the journey (Redfern – Stanmore). [41] RS 816 and Harry travelled by car.

   15. (15)

       There is CCTV footage of the movements of the men at McDonald’s. [42] They arrived, separately, at about 9.15pm. Harry and RS 816 left the scene (according to Witness A, to acquire syringes). They left at around 10.20pm. Witness A met with Sultani in a laneway adjacent to the restaurant.

   16. (16)

       (Initially, RS 816 had no memory of any of this and perhaps one false memory. When reminded of the visit to the xxxxxxx Building and Stanmore McDonald’s, and told there was CCTV footage, he gave evidence that he may have ridden to Stanmore on his bike).

   17. (17)

       As a result of the assault, Nikola Srbin sustained severe head injuries. His father cared for him for an hour or so before a 000 call was made at 9.43pm. An ambulance arrived at 9.53pm. He was taken to Royal Prince Alfred Hospital and died on 5 June 2013.

   18. (18)

       I am satisfied beyond reasonable doubt that the assault on 16 May caused, or at least materially contributed to, Nikola Srbin’s death.

An overview of Witness A’s evidence

1. [92]

   Before subjecting Witness A’s evidence to the careful scrutiny the law demands and to place in context the evidence that is capable of providing his testimony with some support, I will provide a brief overview of his evidence.

2. [93]

   Within about a week of being released from gaol on 8 October 2011 after serving a sentence for drug dealing, Witness A met with Mr Sultani and agreed to deal drugs with him or on his behalf. He was introduced to Sultani by Omar Moshref, who Witness A had met in gaol. Sultani gave him “two ounces of cocaine” and a mobile telephone and said to contact him once he had sold the drugs. He said he continued to sell drugs for Sultani but that “it changed after a while to methamphetamines, commonly known as ice”. The amounts varied but the dealings were “constant”. He said, “sometimes it was every 24 hours, sometimes it was 48 hours, sometimes it might be two or three days … the time frame varied depending on how quickly I could move the drugs”. [43]

3. [94]

   He gave evidence of how he received the drugs. He said the exchange (of money for drugs) would take place in Burwood. Sultani was not generally present, but he would usually meet “probably the same four people”. He nominated those people as “Sultani, Mo [or] Michael, Zak [or] Anush and sometimes a guy called Moussa Wais”. [44]

4. [95]

   The importance of this evidence lies not in the fact of the drug dealing but in the frequency of contact between the two accused and Witness A. The frequency of contact was disputed. Through cross-examination both accused disputed that they had met Witness A in the circumstances he described.

5. [96]

   Witness A said he had some “pretty scary” interactions with Sultani and his cohort. He said on one occasion a group of men, led by Sultani, made him write a suicide note and threatened to give him a “hot shot”. He said both accused were present during that incident. He said Sultani would sometimes pull out the note and show it to him. [45]

6. [97]

   He testified that “[s]ometimes I would get threatened by getting put in the boot of a car and taken for a drive”. He said “Well, Sultani instructed Michael a couple of times or Moey to put me in the boot of a car and take me for a drive, and the last minute it would be cancelled or call[ed] off for some specific reason.” He said “Michael [or] Moey was – he was the only person there actually” but he would receive a phone call from Sultani giving him instructions to call it off. [46]

7. [98]

   Witness A gave evidence that he met each of the accused on many occasions, both as part of the drug dealing activity, where he would collect drugs and pay for them, and in social settings. He said they were usually part of the “same four” men who he would meet to collect the drugs. He claimed that they were present when he was forced to write a suicide note and that Michael (on Sultani’s instructions) threatened to put him in the boot of a car. [47]

8. [99]

   He said they appeared to be “just like brothers”, always hanging out together and looking after each other. He said that Michael and Zak often took the other with them when Sultani asked them to undertake tasks. Over objection, Witness A said:

9. [100]

   He described Michael or Moe as about six feet tall, “six foot one”, with short dark hair (“probably a number one, in hairdressing terms”) and a “little goatee”. [49]

10. [101]

    He said Zak was about “six three, six two, six three; short hair, the same as everybody basically in the group.” He was younger than Michael, “early 20s, 20, 21, 22.” The most distinguishing feature of his appearance was his height. [50]

11. [102]

    In the period leading up to the assault on Mr Srbin, Witness A said he acquired some drugs from Sultani (“I think I got two eight balls … a quarter of methamphetamines”). Sultani said it would cost about $1,200. He then received an eight ball from Jonel Srbin – “it was terrible … he told me it was terrible.” Jonel Srbin had “taken it on tick” and wanted $600 for it. [51]

12. [103]

    Over the coming days, Jonel Srbin placed pressure on Witness A to repay the money, although Witness A took the view that he was doing Jonel a favour. He gave different versions of how often he had dealt with him before, saying at one stage in his evidence that he thought “it was the first time”. [52]

13. [104]

    He said the night before he was assaulted, Jonel Srbin and Omar Moshref were placing pressure on him to acquire heroin and were threatening him over the $400. He said they threatened “to come around and beat me up and torture me, and just words to that effect, for sure.” He said he was “angry and scared”. As far as he was concerned, he was helping them out and that he explained to them that he was on “the program” and “wasn’t touching it [heroin]”. [53] I would describe his tone and demeanour in giving this evidence as exhibiting both anger and outrage.

14. [105]

    The following morning there was loud knocking on the door. RS 048 eventually let in four people – a woman called “Coco”, Jonel and Nikola Srbin, and Omar Moshref. They were threatening him and demanding the $400. [54] Witness A gave the following description of what he said happened next:

15. [106]

    Witness A described how he felt “psychologically” after this incident:

16. [107]

    He chose to seek protection. He spoke to RS 816 who attended the scene at 6.00pm that night with two other men; the men who were paid a point of ice each for showing up. [57]

17. [108]

    Witness A also spoke to Sultani. There are several communications between the two men over the next hours. They met in the lobby of the Shangri-La Hotel. Another man, Joe Antoun, was present. Sultani took him back to the unit at Burwood and Witness A said, “he made me put a blindfold on I think”. He thought Sultani used his phone during the trip and told him, “some of the boys are coming”. [58]

18. [109]

    Once they arrived at Burwood, there were “six, seven, eight, nine” people there and cars were arriving all the time. As to the numbers that eventually showed up, Witness A said:

19. [110]

    Sultani spoke to all these people, sometimes in English and sometimes in “Afghani”. He directed “Michael, to go - I just seen him just talk to him and the guy took off in the car.” Michael came back, opened his boot, got out two bags and put them on the road. Inside the bags there were:

20. [111]

    Witness A said “there was going to be at least six or seven guns on people there” and that Sultani had whittled the numbers down “to about eight or ten guys that he was going to take with him back to Redfern”. He did this by telling others to leave and saying “there’s going to be five people in each car.” He said everybody except him and Sultani and had a gun. [61]

21. [112]

    He was asked whether Sultani said anything about what was going to happen, and he replied “to me it was starting to be pretty obvious” at which point objection was taken. The examination in chief continued:

22. [113]

    Witness A travelled in one of the two cars to Redfern. He could not remember who was in the car in which he travelled. [63] When he arrived, he saw the “two guys” outside the building who he described as “either Islander or Aboriginal or both, or a mix of both”. He later found out that RS 816 “brought them”. He did not notice whether any of the members of his group was carrying anything. [64]

23. [114]

    He “ran” into the courtyard at the head of the group and saw RS 816, Omar Moshref and Nikola Srbin. He saw:

24. [115]

    He went on:

25. [116]

    Witness A confirmed that this act was done by Mo or Michael and estimated the handle of the mallet was around “six, seven inches, about that, no five, six inches for sure” and the head was rubber and about three or four inches wide. [67] He was asked what then happened:

26. [117]

    Witness A described the force of the blow with the mallet as “pretty extreme”. He was not sure if Mr Srbin was conscious after the blow with the baseball bat but observed immediate and serious injury. He said he saw no further blows after the victim was struck with the baseball bat. The group then turned around saying “we’ll get the Dad”, mistaking RS 816 for Jonel Srbin. Witness A intervened telling the group “no, no, no, he’s with me, he’s with me, just leave him alone.” [69]

27. [118]

    Witness A said that he and RS 816 then left the building through a different exit. He thought the rest of the group went back the way they came in. When he left, Nikola Srbin was lying near a steel fence and railing which Witness A identified in some crime scene photographs. [70]

28. [119]

    Witness A said he did not see any member of the group produce a gun, did not see any weapons apart from the mallet used by Michael and the baseball bat used by Zak, and did not see those two weapons until they were used. [71]

29. [120]

    I have already detailed (at [91]) Witness A’s movements from the time he left the scene of the homicide until he says he met Sultani in a laneway near Stanmore McDonald’s.

30. [121]

    Witness A testified that Sultani took his telephone, “broke it up, took the chip out of it, threw it away” and then drove to the Burwood unit that was to become the clubhouse. He described what then happened:

31. [122]

    He said when Michael returned the next day to find that he had managed to untie himself, Michael “just laughed, and gave [him] breakfast.” He said he remained at the clubhouse for a week or more, although he said, “I think I escaped a couple of times” but “I just went for a walk … and come back”. [73] As to telephone communications, he said:

32. [123]

    He said he was able to communicate with friends “maybe a couple of weeks later” although he could not be precise about the time. [75]

33. [124]

    He said at one stage he was moved to a motel in Burwood that was “right up the top of Burwood Road.” He said, “the same people” were there when he was moved to the motel – “Michael, Moe, or Zak, Tony, [Wais], they were all there”. [76]

34. [125]

    Witness A gave evidence about the time he first spoke to police and the version of events that he gave them. That was on 25 May 2013. [77] I will refer to that version of events when I come to scrutinise Witness A’s evidence in due course.

Evidence capable of supporting Witness A’s testimony

1. [126]

   The prosecution relied on other evidence capable of providing support for some aspects of Witness A’s evidence. This evidence included telephone records, CCTV footage, photographs, videos, business documents and the evidence of other witnesses. None of the evidence directly corroborates Witness A’s evidence that either of the accused participated in the assault. The evidence of association makes it more likely that the accused may have been involved. It is important evidence to varying degrees. Some of the evidence contradicted aspects of Witness A’s testimony.

2. [127]

   Spiros Filipou was an impressive witness. He said he had known Mr Hosseinishoja for 15 years at the time he made his statement in 2014. He confirmed that Mr Hosseinishoja went to school with Mr Sultani. He agreed that sometime after they left school, Mr Hosseinshoja stopped hanging out with his school friends but seemed to maintain contact with Sultani. This evidence established an early association between Mr Hosseinishoja and Sultani. [78]

3. [128]

   In cross-examination, Mr Filipou agreed that he never knew, and does not know, anyone by the name of Sayed Anush Abdaly. [79]

4. [129]

   RS 093 was a former member of the Rebels. He gave evidence of the background to the foundation of the Burwood Chapter of the Rebels. He said some time after Sultani “got his colours” in around 2011, several of Sultani’s friends formed a Sydney City Chapter of the Rebels. Those people included “Siar, Wais, Moey, Willie, George, and Anoush.” [80]

5. [130]

   There was a “National Run” to Perth in 2013. After that run, RS 093, AJ and Sultani left the Sydney City Chapter and founded the Burwood Chapter. Sultani also brought “Siar, Wais, Moey, Anoush, Willie, and George” to the Burwood Chapter. In time, they set up a clubhouse in Burwood. Initially, AJ was the president and Sultani was the sergeant at arms. RS 093 agreed that it was “a very closed chapter. They didn’t invite anyone else to join and didn't want to deal with people outside the chapter”. About a year after the Burwood Chapter was established, Sultani became the president and Moey became the sergeant at arms. [81]

6. [131]

   RS 093 agreed that in his 2016 statement he described Moey and Anush in the following way:

7. [132]

   In cross-examination, RS 093, agreed that he met Anush after meeting “Abs and Moey”. He denied that he met him “years later”, saying it was “probably like within a year, may be two at the most but”. [83]

8. [133]

   RS 670 made statements to the police that were read without objection. In a statement dated 26 October 2016, he said:

9. [134]

   RS 670 described “Abs” as:

10. [135]

    He discussed the two accused men and described their appearance and roles within the group:

11. [136]

    In a statement dated 11 July 2017, he identified several men in the group including the two accused:

12. [137]

    Xiu Yuan Zhou was a real estate agent and gave evidence of two leases taken out by Sultani. One lease was for the unit that was to become the Burwood clubhouse. He was able to identify Mr Hosseinishoja. He said that Mr Hosseinishoja came to his office to pay rent and understood him to be a friend of Sultani. [88] Documentation concerning the leases were tendered. [89] In his statement to police, dated 5 July 2016, he said that he saw Mr Hosseinishoja come to the agency with Sultani “regularly”. However, he said he “cannot say how often and I don’t think [the police] asked me how often”. [90] Mr Zhou’s English was not perfect but he was clearly an honest witness, attempting to recall things from many years ago. His evidence supports the prosecution case of the close association between Mr Hosseinishoja and Sultani.

13. [138]

    In addition to the evidence of the witnesses there was also forensic evidence, photographs and short videos establishing the connection between each of the accused, the Burwood Rebels and their association with Sultani. This included:

14. [139]

    This evidence, considered as a whole, establishes a close association between each of the accused and Sultani, their membership of the Burwood chapter of the Rebels and their presence at the Burwood clubhouse. The evidence is not entirely consistent as to their roles within the group, but it provides direct support for Witness A’s evidence of their involvement and association with Sultani and to the Rebels. It provides indirect support that they are more likely to have been amongst the group of men that Sultani gathered on the night of Mr Srbin’s bashing.

15. [140]

    Witness A’s own evidence of his dealings with the Srbins was inconsistent. He initially said he sold the Srbins drugs a couple of times. [96] Later he said he thought the attempt to sell the “terrible” ice that precipitated these events was “the first time”. [97] Then he denied that he was involved in drug dealing with the Srbins and only took their drugs to “help the guy out”. [98]

16. [141]

    Thy To was a resident of xxxxxxxxxxxxx George Street, who knew both Witness A and the Srbins (including Jonel who he called “John”). In a statement dated 20 May 2013, he said:

17. [142]

    RS 048 said in a statement dated 17 May 2013:

18. [143]

    RS 048 told police that around 10.00am on 16 May 2013, Witness A said he had an argument the night before with Omar Moshref and Jonel Srbin in the common area of xxxxxxxxxxxxxxx George Street. Later that day, Jonel Srbin and Omar Moshref called RS 048 asking for heroin. About thirty minutes later, shortly after RS 048 arrived home (with Witness A already there), Omar Moshref “started banging on the door”. RS 048 told Witness A not to let anyone inside, but Witness A opened the door and Omar Moshref, Nick Srbin and another man entered. [101]

19. [144]

    RS 048 then drove with Nick Srbin, Omar Moshref and their friend to get heroin. Around 15 minutes later they returned to find Witness A, Jonel Srbin, Tony Srbin and another girl in the unit. RS 048 and Omar Moshref went upstairs to inject heroin. When they came downstairs, RS 048 heard Jonel Srbin say, “you owe me $500 for this one”. Witness A replied “No, I don’t owe you that much because of this one.” Jonel Srbin then “got up and picked [Witness A] up by his shirt and slammed him against the wall and started punching him … at least four times”. RS 048 heard Omar Moshref say, “Where are the knives?” RS 048 said “No, no fucking knives”. RS 048 claimed that she broke up the fight and screamed for everyone to “fuck off” out of the unit. Everyone left except for Witness A. RS 048 said “Jonel and Omar apologised as they were leaving the unit and both gave [her] a kiss on the cheek”. [102]

20. [145]

    RS 048 gave no evidence of Nikola Srbin threatening Witness A with a knife or threatening to torture him. She spoke to Witness A on 25 May 2013 and he asserted, in the context of justifying the bashing of Nikola Srbin, that Nikola Srbin “held a knife to [his] throat”. RS 048 told him “I was here the whole time and I did not see that”. [103]

21. [146]

    RS 816 saw Witness A on the morning of 16 May 2013. Witness A told him to be at his apartment at 6.00pm because he owed Jonel Srbin money. RS816 gave evidence that Witness A blamed him for not having the $400 owed to Jonel Srbin. [104]

22. [147]

    On 17 May 2013, police officer Stephen Carey and crime scene officers Paul Weldon and Anna Van Der Reyden executed a search warrant at the unit where Witness A was assaulted. They located various phones, blood-stained clothes and shoes, a passport in Witness A’s name, a Corrections New South Wales business card with Witness A’s name written on the back and various blood stains on the walls. [105] Sandra Tabuio conducted the forensic examinations of those items, and a summary of her analysis was tendered by agreement. [106] Ms Tabuio found that DNA recovered from two blood stains found on the kitchen wall was a match for Witness A.

23. [148]

    The forensic evidence and the evidence of RS 048 supports Witness A’s evidence that he was assaulted. RS 048 does not support the precise details of the assault. This is perhaps an inconsistency that does not matter. I have no doubt that Witness A was assaulted and that the motive for the assault was a desire to scare him into paying the drug debt.

24. [149]

    Apart from Witness A, there was evidence from three witnesses who saw at least parts of the assault on Nikola Srbin and another who saw the victim in the immediate aftermath of the assault. In one respect, this evidence provided significant support for Witness A’s account of what occurred. In other less important respects, the evidence was not consistent with his account.

25. [150]

    RS 816 gave evidence that around 6.00pm on 16 May 2013 he was at the Housing Commission complex at [xxxxxxxxxxxxx] George Street. He was with Nikola Srbin and another person he described as being of Arabic or Lebanese descent, when seven to eight men entered the courtyard and attacked the victim. He said that “[t]wo of them had handguns. One of them had a rubber ‑ some rubber mallet and one had a baseball bat.” [107] He said in cross-examination that one of the men had an iron bar or piece of wood. [108]

26. [151]

    He said Witness A pointed at the victim and said, “that’s him there”. The group of men made the victim take off his bag and three to five of the men “started hitting him with their weapons and fists” for around 10 seconds. He said that the two men with guns held their “guns up in the air” during the attack, and one of them pulled the Arabic/Lebanese man “aside and had a stern word with him”. The man who did this was one of the men armed with a gun. [109]

27. [152]

    RS 816 described the man with the baseball bat as “tall”, around “6’2” to “6’3” in height. He said the victim was trying to get back on his feet when the man with baseball bat “told him to stay down and hit him across the head. And that was it.” [110] He described the blow with the baseball as “pretty hard” and that it made a “horrible sound”. [111] He could not remember whether the baseball bat was made out of wood. [112] RS 816 stated that after the assault the victim was “flat on his back and his knees were bent”. [113]

28. [153]

    RS 816 gave evidence that before the victim was hit with the baseball bat the group turned towards RS 816 and one of the men said, “get the father”. Witness A stepped in and said “no, no, not him”. Witness A told RS 816 “to fuck off” and RS 816 exited the complex. He could not remember what Witness A was doing when he left. [114]

29. [154]

    RS 816 did not recognise any of the men who participated in the attack because he was standing 5-10 metres away and only looked at their faces for 30-40 seconds. He stated the group exited the complex shortly after him. He maintained in cross examination that at least five men were involved in the attack on the victim. [115]

30. [155]

    RS 048 told police in statements dated 17 May 2013 and 18 May 2013 that around 9.00-10.00pm she heard “yelling and loud noises.” When she looked out of her window she saw 8 men “kicking a bloke on the ground” for “about a minute”. She said she “did not see any punches thrown or any weapons” and described the men to be of Middle Eastern and Islander background. The only person she recognised was Omar Moshref who was wearing a black leather jacket and did not attack the victim. [116] She said she only “caught the tail end” of the assault, and that Omar Moshref and the rest of the group left shortly after via Albert Street. Once they left RS 048 saw “the bloke they were kicking was Nick, Johnny’s son.” The victim was wearing a red coloured jumper. She shouted out “Nick, are you all right?” from the third level but he did not respond. He stood up and was limping as he ran up the ramp to another unit. [117]

31. [156]

    David Partier was another resident of xxxxxxxxxxxxx George Street, whose unit was one floor above the courtyard. He gave evidence that he heard “muffled voices and scuffling” coming from the courtyard, when watching TV next to the window. He believed the voices sounded “Middle Eastern/Australian”. [118] He looked out the window and saw “9 to 10 males” with several of them “holding sticks and poles” which were wooden and metallic. Mr Partier described one man, who was wearing a dark/black leather jacket and holding a metallic pole around one metre in length and six to seven centimetres in width. Mr Partier could not make out what was happening because it was dark. He stated the group were huddled around the victim. He could not “remember actually seeing a person being beaten”, or the sticks being used on the victim. [119] Mr Partier said the group left the courtyard after a few minutes and the victim got up and left the courtyard. He said the victim was wearing a red t-shirt. He also heard a woman shout “who’s laying on the ground there?” Mr Partier stated that the man with the leather jacket came back and followed the victim shouting “Hussein, Hussein” twice. Mr Partier believed the attack happened around 9.00-9.50pm. He based this on a call he made to his girlfriend at around 9.50pm. [120]

32. [157]

    Thy To said that around 8.00pm the victim was screaming “Dad, Dad” outside the door of his unit. The victim, his father and Omar Moshref had been going in and out of his unit earlier that day. When he opened the door, the victim was with Omar Moshref and was “bleeding from the left side of his head in his hairline somewhere. He had a bleeding nose and his right eye was bruised.” [121]

33. [158]

    Police Officers Daye and Walsh attended on Nikola Srbin at about 10.00pm and observed him to be lying on his back, with a swollen face and blood around his mouth and nose. He was unconscious, his breathing was shallow, and he was making a gurgling sound. Constable Walsh removed a black handled pocketknife, “no longer than 10 centimetres”, from the victim’s pocket. [122]

34. [159]

    On 17 May 2013, Crime Scene Officer Rebecca Parker, conducted an examination of the crime scene, including the unit where Nikola Srbin fled to after the assault in the courtyard. She located bloodstains on the walls of the courtyard as well as on the ramp and pedestrian walkway, and a knife with a serrated blade in a garden bed. Inside the unit, she identified blood stains on the carpet and on the floor of the laundry and bathroom. She also located a blood-stained black handled knife with a 5-centimetre blade. [123] Ms Tabuio’s forensic examinations identified Mr Srbin’s DNA on the handle of knife. Most of the blood stains on the floor and walls contained Mr Srbin’s DNA.

35. [160]

    Events after the bashing, the detention of Witness A and his access to a telephone

36. [161]

    There is evidence capable of supporting parts of Witness A’s evidence as to what occurred after the bashing of Nikola Srbin. I have dealt with some of this in setting out my uncontroversial findings of fact. I will also refer to some of this evidence when I scrutinise Witness A’s evidence. In an attempt to avoid repetition, I will not summarise the evidence again.

37. [162]

    Apart from Witness A, there is evidence touching upon his version of what he did after the bashing from a variety of sources, including:

38. [163]

    Both the prosecution and the defence attempted to place reliance on the telephone schedules. As I said in the course of the evidence, and again during the addresses, I find the records difficult to use in safely drawing inferences or making findings of fact.

39. [164]

    There are at least two reasons for this. First, it is clear (from the records themselves) that the location of a telephone service cannot be determined with any certainty from the cell tower through which it connected. Secondly, the fact that a telephone service is used at a particular place and near a particular cell tower is not reliable proof of who was using it. A reasonably safe inference may be drawn when a text message purports to identify the user (“It’s Witness A. Please call me”) but a voice call that connects for 3 minutes does not establish that the subscriber (or usual user of the ‘phone) was talking on the ‘phone for that period. There may have been a connection for that period but no actual conversation. The ‘phone may have been in the hands of another person. The SIM card may have been inserted in a different handset.

40. [165]

    To take some examples from the present case, the Prosecutor submitted that the cell tower locations for three calls made on 16 May 2013 to Witness A’s telephone service xxxx xxx 915 (“the # 915 service”) gave rise to an inference that the ‘phone or SIM card was with RS 816. The cell tower location is in Forest Lodge and the calls were made at, 10.42pm, 10.48pm and 10.51pm. [125] Witness A said he and Sultani travelled west from Stanmore to Burwood and did not go east to the Glebe (Forest Lodge) area. [126] However, other records of cell tower locations place this conclusion in some doubt. On 16 May 2013 at 2.59pm a call from Mr Sultani to Witness A connected through a cell tower at Woolwich. [127] On no view of the evidence was Sultani on that side of the Sydney Harbour at that time.

41. [166]

    Further, the schedule refers to the initiating party or contacting party (rather than the subscriber) and, it seems, the author(s) of the document drew conclusions as to who was using the service at relevant times. The call at 10.51pm on 16 May (from the # 915 service) was relied on by Mr Brady to show that Witness A still had his phone. [128] However, despite this record being part of a set of “agreed” facts, the Prosecutor submitted that the cell tower suggests the service was being used by RS 816. There are other entries where the using party for that service is said to be RS 816.

42. [167]

    Again, in relation to the use of the # 915 service on 17 May 2013: [129]

43. [168]

    The parties agreed that the schedule was wrong in relation to the 5.47pm record. The # 915 service had not been passed from RS 816 to Witness A and back again.

44. [169]

    These things have caused me to treat the telephone schedule, and the arguments made about it, with some caution. Added to that is the fact that Witness A seems to have had access to three telephone services at relevant times.

45. [170]

    I accept the evidence is relevant to Witness A’s account that Sultani took his ‘phone apart and threw away the “chip” (SIM). It has some capacity to lend support to his evidence and there appears to be a gap in his telephone communications after he met Sultani. I have taken that into account.

46. [171]

    On the other hand, as will be seen, a message on the # 915 service at 7.44am on 22 May 2022 seems to have been sent by Witness A to a known associate. This suggests he somehow got that service back from RS 816 in the six days since he was allegedly detained by Sultani at the Burwood unit. This is not consistent with his evidence that he was unable to contact friends, and his account of when and how he first got a telephone after Sultani discarded his SIM card.

Scrutiny of Witness A’s evidence

1. [172]

   I have considered closely Witness A’s evidence in terms of its substance, consistency and the manner in which it was given. I have considered the extent to which it was consistent with other evidence in the case. I have placed considerable weight on evidence relied on by the Prosecutor in his closing address which tends to, or is capable of, supporting Witness A’s account.

2. [173]

   I accept that Witness A’s evidence is supported by other evidence in relation to several matters including one matter of great importance. This includes the evidence of some of the witnesses and objective evidence like telephone records, contemporaneous photographs and forensic investigations such as fingerprint and DNA evidence. Having said that, Witness A was intimately involved in these events, if not the cause of them, and it is not surprising that his evidence receives support in relation to many of the details.

3. [174]

   I will expose my reasoning and scrutiny of Witness A’s evidence largely by reference to different subject matters.

4. [175]

   Witness A has provided several versions of the events surrounding Mr Srbin’s killing. At least five of these versions were the subject of evidence at the trial. The versions of which I am aware include the following:

   1. (1)

      Answers he gave in an ERISP on 25 May 2013, that is about nine days after the assault on Mr Srbin. [130] Witness A was approached by (then) Detective Walker in Redfern. He was not arrested, voluntarily attended the police station and participated in the interview. The most notable part of this account was that he provided a fabricated account in which he said or implied that a group of “Kooris” were responsible for the bashing. I will refer to this as the “first ERISP”.

   2. (2)

      On 6 September 2013, an undercover police officer (“UCO”) known as Aaron spoke to Witness A by means of a ruse and the witness provided another version of events. [131] Witness A later said he was “big noting” himself when speaking to the UCO. [132] At the trial, when asked whether he knew Aaron was an undercover officer, he said “I did actually”. [133] I will refer to this as the “conversation with the UCO” or similar.

   3. (3)

      Witness A was arrested on 9 October 2013. He was advised of his rights and participated in another ERISP. [134] He later said this interview was 99.9% accurate. [135] I will refer to this as the “second ERISP”.

   4. (4)

      On 25 June 2018, Witness A was taken to the Crime Commission from the gaol in which he was serving his sentence for manslaughter. Over the coming days he made a written statement in which, amongst other things, he identified parts of his earlier versions which were, to use a neutral term, inaccurate. [136] I will refer to this as the “2018 statement”.

   5. (5)

      Witness A made a further statement on 9 November 2022. That is less than a week before he commenced giving evidence in the trial. In that statement he said, for the first time, that Michael (on the prosecution case, Mr Hosseinishoja) was the person armed with the mallet. [137] I will refer to this as the “9 November 2022 statement”.

5. [176]

   In addition to those more formal renderings of Witness A’s versions of the events, there are other sources for things he said or adopted outside of the courtroom. Police officers gave evidence of things Witness A said to them. RS 048 provided statements to the police including things said by Witness A that were read to the Court. RS 048 had some conversations with Witness A in the days and weeks after Mr Srbin’s killing. RS 816 also gave evidence of speaking to Witness A after the incident, but the details of those conversations were sparse and RS 816’s memory was, on his own assessment, very poor.

6. [177]

   Finally, when Witness A pleaded guilty to manslaughter an agreed statement of facts was tendered before the sentencing Judge in 2014. Parts of this document were drawn to his attention in cross-examination.

7. [178]

   While some of the evidence concerning each of the accused’s association with Sultani and the Burwood Rebels was not entirely consistent, I am satisfied that each was intimately involved in the group at the time of Mr Srbin’s killing. The evidence of RS 093 and RS 670 taken together, and in conjunction with the photographs and videos of members of the group, established to a high degree of certainty that each were closely associated with Sultani at the relevant time. I accept the Prosecutor’s submission that this evidence provides support for Witness A’s evidence that, when Sultani summoned a group of men together on 16 May 2013, each of the accused were part of the group. However, that evidence can only be taken so far. Even on the night, accepting Witness A’s testimony that something like 15-20 men gathered at the Burwood unit, there is nothing to suggest that Sultani’s group of contacts did not extend beyond that. Evidence suggests it probably did. He had associations with the Gosford and Sydney chapters of the Rebels, although it is more likely, given the meeting place, that he may first have relied on those who were or would become, members of the new Burwood chapter.

8. [179]

   I accept the evidence that Sultani was a leader of the group whose directions were generally obeyed.

9. [180]

   I accept that Witness A met both of the accused men as a result of his association with the Rebels. However, I am unable to make any positive or clear finding when he first met them (or either of them). I found his evidence about the violence and threats visited on him by members of the group, particularly, Michael or Moe, to be unconvincing. This included his evidence about the suicide note and the threats to put him in the boot of the car. I simply do not know whether those things happened to him. It is true he said these threats were made when he had done the wrong thing – like using the drugs or failing to pay promptly – but it seemed not to be consistent with him going for lunch and coffee with members of the group, including the two accused men.

10. [181]

    I generally accept Witness A’s evidence about the way he fell into dispute with the Srbin’s and their attempts to intimidate him. I also accept that he was assaulted and threatened early on the day of 16 May 2013.

11. [182]

    The evidence was supported by the evidence of RS 816 (in respect of the debt) and RS 048 (in respect of the fact of the assault). It also received support in the forensic evidence (blood and DNA in the unit and on the knife). Perhaps most significant, there is no other explanation for the events that unfolded.

12. [183]

    However, the precise details of the assault are less than certain and the evidence of RS 048 suggests that Witness A may have exaggerated what happened.

13. [184]

    I am satisfied Witness A minimised his involvement in drug dealing with the Srbins. I accept the evidence of Thy To and RS 048 (whose statements were read) over that of Witness A. They presented a relatively consistent account that he was involved in drug dealing with Jonel Srbin on an ongoing basis. Witness A’s account was not internally consistent. I find he lied about this.

14. [185]

    Parts of Witness A’s account of the assault on Mr Srbin is supported by other evidence. However, while the eyewitnesses give similar versions of what happened, there are also significant discrepancies.

15. [186]

    Witness A’s version involved just two men committing acts of violence on Mr Srbin – that is, Mr Hosseinishoja hitting him with the mallet and Mr Abdaly hitting him with the baseball bat. He said no guns were produced at the scene and that he did not see any other weapons. The other witnesses, in various ways, suggest that the victim was set upon by a group and was punched and/or kicked. RS 816 suggests that two men produced guns, including (by strong inference) Sultani. Witness A consistently asserted that neither he nor Sultani was armed with a gun.

16. [187]

    On the other hand, Witness A’s version concerning the use (by somebody) of a mallet and a baseball bat receives support from RS 816. I did not find RS 816’s evidence particularly persuasive. He appeared to have difficulty concentrating and was almost falling asleep in the AVL suite from which he gave his evidence. He had almost no memory of the events that followed the incident. However, his evidence of seeing a tall man strike the deceased with a baseball bat was persuasive. He described the sound of the bat hitting Mr Srbin’s head and his evidence on this issue was convincing.

17. [188]

    Based on the supporting evidence, I accept that Mr Srbin was struck hard with a baseball bat.

18. [189]

    RS 816 was less convincing when it came to asserting that there was a mallet produced. However, it is an unusual weapon to nominate, and the evidence of their contact afterwards does not explain both men identifying such a weapon, other than by speculation that they colluded. There was no reason for them to do so immediately after the event. RS 816 provides some support for this aspect of Witness A’s testimony, and I am inclined to accept that there was a mallet at the scene and was produced by one of the assailants.

19. [190]

    Ms Cunneen, as I have indicated in dealing with a legal argument that arose after her address, relied on the absence of evidence – apart from Witness A himself – to establish that Mr Abdaly was known as Zak. I have given this argument no weight. As I said in dealing with the Browne v Dunn issue (at [43]-[56] above) Witness A purported to identify Anush. He said, rightly or wrongly, that he originally knew Anush as Zak.

20. [191]

    In view of the more substantial attacks on his credibility, and the absence of any positive case that Anush was not known as Zak, his use of the name Zak has no impact on a rational assessment on Witness A’s credibility.

21. [192]

    The evidence establishes that Witness A undertook a photographic identification procedure on 17 September 2019. [138] In different bundles, photographs of the accused and several other alleged gang members were included in separates arrays of 20 images and shown to Witness A. He was unable, or said he was unable, to identify any member of the group.

22. [193]

    If Witness A knew both Mr Hosseinishoja and Mr Abdaly as well as he purports, it might be considered unlikely that he would not be able to identify them from photographs. Mr Brady submitted that the photograph of Mr Hosseinishoja was a clear and good image of his client and was taken around the time Witness A said he was spending a lot of time with him. [139]

23. [194]

    It is significant that Witness A failed to identify any member of the group. He did not even identify Sultani who, it might be thought, he knew the best and who is a reasonably distinctive looking man.

24. [195]

    While I have taken it into account, I have placed little weight on the failure of Witness A to make a positive identification from photographs shown to him so long after the events in question.

25. [196]

    Witness A gave evidence (in chief) that, as the group gathered at the Burwood unit, Sultani directed Michael (that is, Mr Hosseinishoja) to fetch some guns. Michael left and returned with two bags, which were full of guns including “chrome Revolvers” and “Glocks”. The bags were in the boot of his (Michael’s) car, and he placed them on the ground in the carpark. [140] He said the guns were then distributed and each member of the group carried a gun, except for Sultani and Witness A. [141] I have already noted that RS 816’s evidence suggests that Sultani was armed with a gun at the scene.

26. [197]

    Witness A said in cross-examination that, although he knew the group was armed with firearms, he could not remember seeing those weapons on the journey between Burwood and Redfern. [142] He also said he could not remember whether guns were used in the courtyard. Again, RS 816 gave evidence that two members of the group produced firearms.

27. [198]

    The agreed facts on his manslaughter plea in 2014 said, at par [10], that Omar Moshref was threatened with a handgun and told not to involve himself in the attack. When asked about this in cross-examination, Witness A said he could not answer that question and could not remember “who pulled what and what happened with Moshref”. He said all he could remember was that Omar Moshref was held back physically by Sultani. [143] He said he may not have read the agreed facts on sentence:

28. [199]

    The cross-examination also established that Witness A did not tell police in his second ERISP that Michael brought and opened the bag of guns. He told police he could not remember who brought or opened the bag of guns. On the contrary, he said the bag was on the ground when he arrived at the carpark. He told police:

29. [200]

    He said this was a lie told for “self-preservation” and fear of repercussions. [146] However, in the same interview he named people involved in the incident and later claimed the second ERISP was “99.9 percent the truth”. Pressed about these things, his answers were non-responsive and evasive. [147] For what it is worth, my assessment of his demeanour at that point was that he was not attempting to tell the truth or to answer the questions directly.

30. [201]

    Witness A failed to refer to the bag containing Glocks in the second ERISP. [148] He said (in evidence) that he remembered the Glocks at the time of interview but deliberately did not mention it. He agreed this was another “self-preservation” lie. [149]

31. [202]

    In the 2018 statement, Witness A did not correct his version of events or clarify what he knew about the guns. He did not tell police it was Michael who brought the bag of guns. Nor did he correct the situation in his 9 November 2022 statement. [150] The latter omission may be understandable as the 9 November 2022 statement may have been directed to a single issue, namely the allegation that it was Michael who wielded the mallet. The former omission is less easily ignored because the 2018 statement involved him reading the earlier interviews and correcting any errors he detected.

32. [203]

    The only other evidence in the case concerning the use of guns on 16 May 2013 came from RS 816. He said that two of men were armed with handguns. [151] He said they held them up in the air but did not discharge them. He said one of the men with a gun pulled aside “the fellow that was with Nick”, “the Lebanese/Arab guy”, and had words with him. [152] Omar Moshref was the fellow that was with Nick. On Witness A’s account in the courtroom, it was Sultani who took Omar Moshref aside. However, Witness A also said that he and Sultani were the only members of the group who were not armed with handguns.

33. [204]

    RS 816’s evidence is capable of lending support to Witness A’s account that guns were taken to the scene.

34. [205]

    However, the evidence is otherwise inconsistent, and it is difficult to reconcile the two versions. Witness A said in Court that the guns were not produced, or that he did not seem them produced, at the scene. RS 816 said two men held their guns in the air and one used a gun to usher Omar Moshref away from the assault. The latter proposition is consistent with the statement of facts on Witness A’s manslaughter plea, but he did not adopt that in his evidence. RS 816’s version does not fit with Witness A’s evidence that though Sultani ushered Omar Moshref away, [153] he was not armed.

35. [206]

    Based on the evidence of RS 816, I am inclined to accept that there were handguns at the scene. However, that does not implicate either of the accused in this trial.

36. [207]

    As to Witness A’s version that Mr Hosseinishoja produced the guns back at the clubhouse, Witness A’s version stands alone. While Witness A’s evidence regarding the bag of guns may be true, and there seems little doubt the group had access to guns, I have grave doubts about his evidence that Mr Hosseinishoja obtained the bags of firearms, and that 8 of the 10 participants were armed with handguns when they went to Redfern.

37. [208]

    In his evidence in chief, Witness A was asked about the contents of the bags. He said:

38. [209]

    He was asked whether he saw “Moe do anything with a gun or guns, or one of the weapons?” He responded that “everybody apart from me and Sultani had a gun at that point”. He was asked if he heard Moe say anything about the guns and he said “no, I didn’t, no.” [155]

39. [210]

    He gave no evidence about an “Uzi”, a type of firearm later described in evidence as a small light weight machine gun. [156] Nor could that type of weapon be described as anything like a Glock or a revolver.

40. [211]

    Over objection, I permitted the Prosecutor to allow the witness to refresh his memory pursuant to s 32 of the Evidence Act. [157] I did not grant leave for the witness to read an earlier account aloud on to the record. [158] Witness A was shown the second ERISP (questions 400-402) and then gave evidence that he saw Michael holding an “Uzi with a suppressor”. [159]

41. [212]

    There was extensive cross-examination on this subject. [160] It turned out that Witness A first mentioned the Uzi with a suppressor in the conversation with the UCO. At one stage he said he could not remember the conversation with the UCO. [161] However, confronted with the transcript of the conversation, he seemed to accept the accuracy of the propositions put to him by Senior Counsel. Nor was there any suggestion that the transcript was not being accurately put to the witness.

42. [213]

    It was established that Witness A did not refer to the Uzi in the second ERISP until the interviewing detectives reminded him of the conversation with the UCO. [162]

43. [214]

    The cross-examination included the following:

44. [215]

    Witness A did not mention the Uzi with the suppressor, or that Michael was brandishing an Uzi, when he made the 2018 statement. [164]

45. [216]

    As I have said, I doubt Witness A’s evidence about the bag of firearms, and that eight of the assailants were armed with guns at the scene. My finding as to his evidence relating to the Uzi is much stronger. I do not believe his evidence about Mr Hosseinishoja brandishing the Uzi with the suppressor.

46. [217]

    As it was described, this was a most memorable event; Michael brandishing a small machine gun and referring to it as “my baby”. The description to the UCO presented like the final scenes of the movie Scarface (“say hello to my little friend”). It did not ring true. More importantly, I find it incredible that the witness could be asked twice in formal settings about the guns, and what Michael said and did, and somehow forget this part of the event both times.

47. [218]

    But this is exactly what occurred in the second ERISP in 2013 and in the courtroom when his mind was directed specifically to the type of guns contained in the bag and whether Michael had a particular gun or said anything particular. He only purported to “recall” this memorable incident when he was reminded what he said to the UCO. I did not, and do not, believe him. It is much more likely, in my assessment, that this was a yarn spun to the UCO and then repeated when Witness A was reminded of it.

48. [219]

    I do not accept that the incident involving the Uzi as described by Witness A occurred.

49. [220]

    Witness A gave evidence that Sultani was “keeping us back out of the affray” and “then Mo hit the guy across the head with a rubber mallet”. [165] He described the mallet as black, the handle as being five, six or seven inches long, and the club or head being “bigger than a softball” or “three of four inches … across.” [166] Witness A said “that was the first hit he had” and that the victim “dropped to the floor and he was dazed and confused for sure”. [167]

50. [221]

    Witness A said he was unaware that a mallet was taken to the scene until it was produced. However, the agreed facts for his manslaughter plea included:

51. [222]

    The cross-examination on this subject included the following exchange:

52. [223]

    The first of those answers was evasive and I noted at the time that his demeanour changed and was, to my mind, quite unconvincing. It is difficult to describe the change in his demeanour in words. It is not a matter to which I attach significant weight. More significant is the inconsistency and the unlikelihood that Witness A was unaware of the facts upon which he was to be sentenced. He is not an unintelligent man and has a demonstrated capacity to look after his own interests.

53. [224]

    In the second ERISP, Witness A only brought up the mallet after the police reminded him of what he said in his conversation with the UCO. Witness A agreed he forgot to tell police about the mallet, even though he was asked questions beforehand about the weapons he saw during the assault. [170]

54. [225]

    Witness A also stated during the second ERISP that a man he had never seen before, who was wearing a “G-Star RAW jacket”, produced the mallet. [171] Witness A said he knew (when speaking to the police) that Michael wielded the mallet and “I guess I should have mentioned it”. [172] He agreed he lied to police but his evidence was vague as to the state of his memory at the time:

55. [226]

    Witness A was also cross-examined about things he said about the mallet in the 2018 statement. This part of the cross-examination included:

56. [227]

    The cross-examination continued:

57. [228]

    To emphasise the importance of this evidence, in the 2018 statement, Witness A clearly stated (two or three times) that he did not remember who was armed with the bat and the mallet. Furthermore, he said he was wrong when he said in one of his earlier versions that it was Zak who was so armed (that is, Mr Abdaly, on the prosecution case). He also said he was “facing the other way” and could not see who wielded these weapons.

58. [229]

    Witness A did not say that Michael wielded the mallet in his 2018 statement. [176]

59. [230]

    The first time Witness A said that Michael hit the victim with a mallet was in the 9 November 2022 statement. [177] That was after the trial was scheduled to commence, nine years after the event, and after four previous statements, interviews or conversations.

60. [231]

    The evidence of RS 816 supported the proposition that one of the members of the group was armed with a “rubber mallet”. [178] However, he did not mention the mallet being used and only stated that the group hit the victim with their “weapons and fists”. [179]

61. [232]

    I am not satisfied that Mr Hosseinishoja was armed with a mallet. I do not believe Witness A’s evidence on this issue.

62. [233]

    Witness A testified that Zak (Mr Abdaly) hit the victim across the face with a baseball bat. Witness A described the blow as “very hard” and resulted in the victim bleeding from his eyes, ears and mouth. [180]

63. [234]

    In the agreed facts for his plea of manslaughter in 2014, Witness A stated that he knew the gang members had taken the baseball bat to the courtyard. However, in cross-examination Witness A clarified he only saw the baseball bat once it was pulled out by Zak and did not see the baseball bat previously in the car or in the apartment at Burwood. [181]

64. [235]

    In the second ERISP Witness A only alleged that a baseball bat was used, after the police mentioned he had said it to the UCO. Witness A agreed he forgot to tell police about the bat until he was reminded, even though he was asked many questions beforehand about the weapons he saw during the assault. [182]

65. [236]

    In the 2018 statement, Witness A agreed that he had lied in his second ERISP when he said that Zak was armed with the bat and mallet. He told the Crime Commission this was inaccurate as he could not remember who had the bat or the mallet, as he was facing the other way during the assault. [183]

66. [237]

    As I have said, RS 816 gave convincing evidence that a tall man stuck Mr Srbin with a baseball bat. Mr Abdaly is a very tall man. This evidence provides support for Witness A’s evidence on this important issue.

67. [238]

    However, given the inconsistencies in Witness A’s versions on this question, in particular his unambiguous assertion in his 2018 statement that he had previously lied about the issue and did not remember who had the baseball bat, I am unable to make any positive finding that Mr Abdaly was the person who struck the victim with the bat. There is evidence that there were several large and tall men within Sultani’s group. [184] RS 816’s evidence that it was the tallest man who used the baseball bat does not narrow the field down to Mr Abdaly. He may have been the tallest man in the group but if he was not present one of the other men would logically fit that description.

68. [239]

    Witness A told the UCO that the victim was hit a crowbar. Witness A stated in cross-examination he made this up and no crowbar/poles were used on the victim. [185] Witness A maintained only the bat and mallet were used and denied that he was only saying there were two weapons because there are two accused. [186] He “couldn’t say” why he invented the story about the crowbar.

69. [240]

    In his first ERISP, Witness A told the police calculated lies. It is true, as the Prosecutor submitted, that it is not surprising that somebody in Witness A’s position – that is, somebody responsible for a brutal homicide – might attempt to deflect blame to others and lie about their involvement. [187] I accept that some of his lies to police were understandable and somewhat typical of a person embroiled in the criminal milieu and drug trade, faced with possible complicity in a brutal assault (noting that the deceased was still alive at the time of the first ERISP). Telling the police he owed the Srbins money, but denying any involvement in drugs, was a fairly typical lie, particularly when Witness A had previously been sent to gaol for drug supply.

70. [241]

    However, Witness A went much further than this. He gave a positive and entirely fictional account that a group of Aboriginal men entered the courtyard at the time of Mr Srbin’s killing. He made a deliberate and calculated attempt to implicate those imaginary men. He knew the area had a significant Indigenous population and thought blame may be cast on such men who may have some connection with the Srbins.

71. [242]

    This cynical and manipulative version provided to investigating police is damaging to Witness A’s credibility.

72. [243]

    Witness A suggested that he was greatly concerned when he realised what was going to happen after he involved Sultani and saw the guns and large group of men. He said:

73. [244]

    He earlier described the victim’s reaction when he saw the group of men following behind Witness A as they entered the courtyard:

74. [245]

    Something about the way he gave this evidence made me doubt the sincerity of his concerns for the victim. I cannot describe why I had the impression that the witness was not being honest and took some satisfaction in the smile being wiped off the victim’s face. [190]

75. [246]

    However, that impression was confirmed by evidence that came in the statement of RS 048. She said that she saw Witness A after he gave his first ERISP, that is on 25 May 2013. She recorded part of her conversation as follows:

76. [247]

    In speaking to the UCO, he described the victim as “that little prick”. [192] By that stage Nikola Srbin was dead.

77. [248]

    The significance of this evidence is not so much in its demonstration of Witness A’s callous indifference to Nikola Srbin’s suffering. Rather, its importance lies in its impact on an assessment of Witness A’s credibility. It shows, or at least suggests, that his expressions of concern for the victim were reconstructed at best, or, just as likely, manipulative and dishonest. Either way it demonstrated a capacity to attempt to portray himself in a favourable light and minimise his culpability.

78. [249]

    To be clear, I reject Witness A’s evidence that he was concerned for Mr Srbin’s safety or that he attempted to call off the Rebel’s intervention in his dispute over the $400 drug debt.

79. [250]

    In cross-examination of Witness A on 16 November 2022, Ms Cunneen put to him a number of things he had allegedly said to other inmates and medical staff while he was in custody. He denied or did not remember some of those things and there is no evidence before the Court that he said them. [193]

80. [251]

    However, when it was suggested that he told a nurse in February 2015 that “you had been assaulted with a hammer in May 2013”, Witness A said: “I think I did, yeah.” [194]

81. [252]

    He went on to assert that this was a reference to the assault by Nick Srbin and Omar Moshref which occurred on the day of the killing:

82. [253]

    Nothing in the evidence Witness A provided to that point suggested that the assault involved him being hit in the back with a claw hammer. It seems, as Ms Cunneen submitted, this new version of the assault was “developed … in front of our eyes.” [196]

83. [254]

    Witness A either exaggerated his evidence concerning his detention at the clubhouse or unit at Burwood or told deliberate lies about it.

84. [255]

    Parts of his evidence did not have a ring of truth. For example, it seems very unlikely that he would be allowed to walk freely around the suburb unsupervised while being detained or that Mr Hosseinishoja, allegedly charged with responsibility to tie him up with tape, would just laugh when he discovered that he had managed to get himself free overnight in the unlikely manner the witness described in evidence. [197] He claimed he used a cigarette lighter (which he earlier dropped on the floor) to burn the tape off his legs, used the toilet “because I was bursting”, and then used a paint scraper that he “put … against the wall” to cut the tape off his hands or wrists “and it was me free”.

85. [256]

    He then smoked cigarettes and “waited for Michael to come back first thing in the morning”. If he had escaped in this manner, it seems unlikely he would stay there and wait to see what would happen when the gang members returned. Luckily for him, according to his evidence, Michael just laughed when he returned.

86. [257]

    It is close to certain that Witness A invented evidence that his DNA was found on the sleeping bag. In cross-examination he said:

87. [258]

    The officer in charge of the investigation, Mr Hunt, said that no sleeping bag was ever seized from the clubhouse and there was no DNA testing on such an item. [199]

88. [259]

    Witness A’s evidence was vague as to the length of the detention. Even so, the period he said he was without a telephone, with which he could communicate with friends, receives no support from the telephone records. Those records support an inference that he may have been out of contact for a short period, but they do not support his evidence that he was without a ‘phone for about two weeks and, even then, that he could not communicate with people because he borrowed the phone from “a woman I was seeing” and his contacts were not available to him. [200] Exhibit 16 suggests he was in contact with associates by 22 May 2013 at the latest.

89. [260]

    I do not accept that Witness A was detained by Sultani and the Rebels.

90. [261]

    It is more likely that the group were assisting him to hide from Jonel Srbin and/or the police. In fact, he told RS 048 on 25 May 2013 “I have been in hiding”, “[I’m] just doing what my boss has told me to do” and “Johnny’s family [is] after me”. [201]

91. [262]

    Witness A gave evidence that he did not want to obtain heroin for Omar Moshref and Jonel Srbin on 15-16 May 2013 because he was on a program to give that drug up. Telephone messages relating to “slow” suggest this was not true. [202]

92. [263]

    I did not believe Witness A when he claimed he was aware that the UCO was a police officer. His demeanour was unconvincing. Initially he said, “I did actually (know)” and provided a context for that purported knowledge. Later his evidence suggested that he had suspicions rather than actual knowledge. The things he said to the UCO, or at least those have been brought to my attention, suggest he was, as he said in one of his subsequent interviews, bignoting himself and, as I have found, providing an account that was part truth and part fiction.

Is there any motive in Witness A to lie about the two accused men?

1. [264]

   The Prosecutor led evidence from Witness A concerning the reasons he was giving evidence and the absence of any motivation he had to give false evidence. [203] Witness A claimed the main reason he was giving evidence was to “clear [his] conscience.” He said (somewhat gratuitously) that his partner has “a pretty serious government job back home” and that she “wants me to clear my conscience and [get it out of the] way and move on with my life”. He acknowledged he had received some payment from “the DPP” to compensate him for loss he suffered in his business by travelling to give evidence. Even so, he says he will be out of pocket. He could identify no personal advantage in giving the evidence. Conversely, he saw the potential danger in doing so in the form of “repercussions”.

2. [265]

   The Prosecutor submitted:

3. [266]

   The last part of that submission was, I think, a reference to Witness A’s evidence in cross-examination that his marriage proposal was “off the table” pending resolution of this case. He said (again somewhat gratuitously) that his partner’s family were “pretty staunch Catholics” and that she was lying to them about the reasons for his absence from home while he gave evidence. [205]

4. [267]

   Ms Cunneen cross-examined Witness A about various motives he may have to lie. She suggested his partner gave him an ultimatum, and that the police were emailing him constantly. She put that Witness A “will continue to hound – to pursue the New South Wales Government for every cent that you say this has cost you.” [206]

5. [268]

   There is no evidence in the trial of these things put to the witness, and Witness A denied they were motivating him to give evidence against the accused.

6. [269]

   Neither accused has established any motive for Witness A to provide false evidence against them.

7. [270]

   I have considered the absence of any proven motive to lie in assessing the credibility of Witness A. I have done so in the light of the directions I have given myself at [26] above, bearing in mind the words of the majority of the High Court in Palmer v The Queen:

8. [271]

   I accept the submissions made by Mr Brady in relation to Witness A’s lies and his motives to tell them. [208] He submitted (and I accept) that there are several established lies told by Witness A over many years and in various circumstances. In many instances Witness A was unable to explain why he told those lies. As Mr Brady submitted:

Matters distinguishing the cases of the two accused men

1. [272]

   The matters I have discussed concerning the credibility of Witness A apply equally to the case of each of the accused. There are some aspects of the evidence which distinguish the cases.

2. [273]

   The evidence of RS 816 concerning a very tall man hitting Nikola Srbin with a baseball bat is relevant to Mr Abdaly’s case and makes the prosecution case against him stronger.

3. [274]

   Further, there is evidence that when Mr Hosseinishoja was spoken to by police on 26 October 2020 and told he was under arrest for the murder of Nikola Srbin he looked “confused”. He was told it was about “job in Redfern in 2013” and asked if he knew what the police were talking about. He said “no”. [209]

4. [275]

   On the other hand, the evidence of Mr Hosseinishoja’s association with Sultani is stronger and Witness A seemed to have had less contact with Mr Abdaly.

5. [276]

   Despite these differences, the doubts I have about Witness A’s evidence apply to both accused. The evidence of RS 816 does not elevate in a substantial way Witness A’s evidence that it was Mr Abdaly, as opposed to one of the many other tall men in the group, [210] who wielded the baseball bat.

Conclusions

1. [277]

   It is obvious from the foregoing analysis that Witness A is a witness whose evidence must be treated with extreme caution. I do not accept significant parts of his evidence as being honest or reliable. I am comfortably satisfied that he lied or exaggerated parts of his evidence. As Mr Brady submitted in his closing address, I may not be able to solve the riddle of why Witness A told lies, but I am satisfied that he told them.

2. [278]

   I have considered whether, despite having doubts about parts of his evidence and being satisfied he lied in relation to other parts, I am nevertheless satisfied beyond reasonable doubt that he was honest and reliable in relation to the critical parts of his evidence.

3. [279]

   Having scrutinised his evidence carefully, I have concluded (as a matter of fact rather than law) that I am unable in good conscience to act on Witness A’s evidence unless it receives support from another independent or trustworthy source. On the critical issues in the trial for both men, there is no such evidence.

4. [280]

   My central factual findings relevant to proof of the case against each of the accused are these:

5. [281]

   It follows that I entertain a reasonable doubt about the guilt of each of the accused men and that both of them must be found not guilty.

Orders

1. [282]

   Seyed Amirmohammad Hosseinishoja, on the indictment alleging that on 5 June 2013 at Redfern you did murder Nikola Srbin, I find you not guilty.

2. [283]

   Sayed Anush Abdaly, on the indictment alleging that on 5 June 2013 at Redfern you did murder Nikola Srbin, I find you not guilty.

3. [284]

   You are each discharged on the aforementioned indictment.