R v Salameh (Costs)

1. [1]

   On 20 November 2025 following a trial by judge alone I found Jamal Salameh, to whom I will sometimes refer as the applicant, not guilty of the murder of Rami Iskander: R v Salameh [2025] NSWSC 1372. An application for costs was foreshadowed, and I have received this year submissions for the applicant, for the Crown in response, and a reply from the applicant. It was the joint position of the parties that the matter could be resolved on the papers.

2. [2]

   Although I will make reference to some of the key aspects of the factual dispute at trial, this judgment should be read in conjunction with my judgment on verdict. The respondent did not contend, in opposing the granting of a certificate for costs, that there was any relevant aspect of the evidence or Crown case that was overlooked or misunderstood in that judgment.

Relevant legislative provisions and legal principles

1. [3]

   An application for costs under the Costs in Criminal Cases Act 1967 (NSW) (“the Act”) is a two-stage process: firstly, the Court determines whether a certificate ought to be granted (ss 2, 3); and secondly, if a certificate is granted, then the applicant may seek payment of costs from the Director-General (s 4).

2. [4]

   Section 2 of the Act sets out the circumstances in which a costs certificate may be granted:

3. [5]

   Section 3 of the Act sets out the required form of the costs certificate:

4. [6]

   Given my verdict, s 2(1)(a) is plainly satisfied. Having satisfied that section, ss 3(1)(a) and 3(1)(b) establish the conditions that must be satisfied before the Court can grant a certificate. Here, there was no suggestion that s 3(1)(b) was not met; rather, the sole focus of the dispute between the parties is whether “if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings”.

5. [7]

   The hypothetical question of attributing knowledge of relevant facts back to a point prior to instituting proceedings, as discussed for example in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 (“Mordaunt”) at [36], does not give rise to any complexity in this case. The relevant facts arise from the Crown case tendered at trial, which was largely documentary and not challenged, with some additional oral evidence, as set out in my judgment on verdict. References hereafter to paragraph numbers are to that judgment, unless otherwise indicated.

6. [8]

   In R v Pavy (1997) 98 A Crim R 396; [1997] NSWCCA 401, the Court of Criminal Appeal held that notwithstanding the legitimate interest the community has in serious crimes being prosecuted, it cannot be reasonable to prosecute in the face of significant weaknesses in the prosecution case, which the prosecution, acting reasonably, ought to have been aware of.

The parties’ submissions

1. [9]

   The written submissions for the applicant included a detailed analysis of the aspects of the verdict judgment which demonstrated the defects in the Crown case. It was submitted that the inference sought to be drawn by the prosecution was not available, and was illogical and baseless. In response to a Crown submission, referred to below, it was submitted that general deterrence is not a justification to run hopeless cases. It was submitted that:

2. [10]

   It was submitted for the Crown that implicit in my judgment was a finding that the Court was not satisfied overall that a number of the inferences could be safely drawn to conclude that, in combination, Mr Salameh was guilty of the offence for which he was tried. It was submitted that as the inferences as to elements were required to be proved beyond reasonable doubt, and there were competing inferences that were available, the ones urged upon the Court by the Crown were ultimately not the only reasonable inferences that the tribunal of fact could draw. It was submitted that the drawing of inferences in a circumstantial case such as the present one is a matter that is often rightly left to a tribunal of fact to resolve.

3. [11]

   It was submitted that:

4. [12]

   The Crown did not contend that Mr Salameh materially contributed to the institution or continuation of the proceedings in any way that would disentitle him to relief, and did not submit that there was any discretionary reason which would err against a certificate being granted in the event of satisfaction of the test of unreasonableness.

The trial and the way in which the Crown endeavoured to prove guilt

1. [13]

   There was a significant body of evidence that was not in dispute in the trial. Rami Iskander was murdered on 14 May 2022 at his home in Belmore. As he approached his front door, two men got out of a stolen black Audi SQ5 bearing cloned number plates and ran towards him, fatally shooting him. Immediately after the shooting, the shooters ran back to and entered the black Audi, which they drove away to Croydon Park, where they exited the Audi and set it on fire. The shooters entered a second getaway car, being a silver Toyota RAV4 bearing cloned number plates that Vincent Lambroglou had left at that location at Croydon Park about 42 hours earlier. The shooters then drove this Toyota RAV4 away from Croydon Park to a location in Bexley North where they exited the Toyota RAV4 and set it on fire. The shooters then entered a third getaway car, a Hyundai, that Mr Lambroglou had parked there about 31 hours earlier, and drove away. The shooters travelled in the Hyundai to an underground carpark in a unit complex on Railway Parade, Allawah.

2. [14]

   The modus operandi used by the shooters in the murder of Rami Iskander – that is, the use of several getaway cars with cloned number plates that are then destroyed by fire – is a common modus operandi used by organised crime networks to conduct murders and avoid detection by police. The murder of Mr Iskander had the hallmarks of organised criminal activity.

3. [15]

   Mr Salameh was charged with murder on the basis of the allegation that he was an accessory before the fact to the murder. The Crown was required to prove that he intentionally assisted the principal offenders to commit that crime. One notable aspect of the Crown case, to which I will return, is that there is no evidence whatsoever as to who the principal offenders were. The Crown case was that the accused helped the shooters by providing members of the Comanchero Outlaw Motorcycle Group (“the Comanchero”) with the Hyundai before the murder of Rami Iskander, knowing it was to be used by others who were going to at least intentionally inflict grievous bodily harm upon Rami Iskander in retaliation for shooting Tarek and Omar Zahed.

4. [16]

   In closing written submissions at the trial and in submissions opposing the grant of an order for a costs certificate, the Crown submitted that there were three matters that it had proved (or had sought to prove) by the evidence, namely:

   1. (1)

      That the accused had previously arranged to have the Hyundai registered fraudulently on 20 January 2022;

   2. (2)

      That the accused made that car available to people affiliated with the Comanchero on 12 May 2022; and

   3. (3)

      That the accused knew that the car was to be used in retaliation for the attempted murder of Tarek Zahed and the murder of his brother Omar Zahed, a few days earlier on 10 May 2022.

5. [17]

   During oral closing submissions for the Crown, there were said to be six matters that were contentious, and had been proved by the Crown. These were said to be:

   1. (1)

      The relevance of the murder of Mahmoud Ahmad on 27 April 2022, and in particular the provision of the Subaru Forester that was the third getaway car used in that murder;

   2. (2)

      The relevance of the Omar Zahed murder and attempted murder of Tarek Zahed;

   3. (3)

      The accused's knowledge of these events;

   4. (4)

      The accused's close relationship with Tarek and Omar Zahed;

   5. (5)

      The provision of the Hyundai on 12 May 2022; and

   6. (6)

      How all of those factors contributed to the accused having the requisite state of mind at the time of the alleged offence; that is, his knowledge of what the car was actually going to be used for.

Deficiencies in the Crown case

1. [18]

   The Crown submission that the judgment on verdict disclosed that there were competing inferences available overstates the viability of the Crown case. The Crown case was structurally deficient. It did not support a coherent process of reasoning to guilt based on evidence. I will endeavour to refer to the main areas where the Crown case failed, by reference to the three factors and six factors relied upon by the Crown as referred to above at [16] and [17] respectively, addressing the essential elements and relevant legal principles to the extent necessary.

2. [19]

   The most straightforward issue to address first is the fifth matter of the six listed at [17], which is a less demanding version of the second matter of the three listed above at [16], which is that on 12 May 2022 Mr Salameh provided the Hyundai. This focuses attention on the act Mr Salameh was alleged to have performed, that assisted the principals in their murder of Mr Iskander. It is uncontroversial that the Hyundai did in fact assist the principals. No issue arose as to whether the act of providing the Hyundai had the capacity to so assist.

3. [20]

   With limited exceptions, the verdict did not turn on the availability of competing inferences. An exception is that one circumstance relied upon by the Crown in its circumstantial case to prove the element of the act of assistance, the provision of the Hyundai on 12 May 2022, and potentially the knowledge with which this was done, was the suggestion that the applicant was fraudulently involved in the transfer of registration of the Hyundai in January 2022, some four months prior to this alleged act of assistance to the principals in the murder of Mr Iskander: see factor one of three above at [16]. For reasons outlined in the judgment on verdict, as a whole but principally at [137]-[143] and [147], the alternate inference that he was simply passing on information from his father, uncle or another employee of Bankstown Auto was an obvious and more plausible inference arising from the evidence, and I was not prepared, even to an indeterminate level of proof pertinent to considering the circumstances to be relied upon, to draw the inference of fraud.

4. [21]

   Otherwise, regarding the element of whether the Hyundai was provided by the applicant to Mr Lambroglou on 12 May 2022, the purported circumstances relied upon by the Crown were either contrary to the evidence (see for example at [138]) or simply too few and too weak in their combination to enable the inference to be drawn that he did so: see at [144]-[152]. The poverty of evidence in support of this element alone rendered the prosecution not reasonable.

5. [22]

   Relevant facts for the purposes of s 3(1)(a) of the Act are the whole of the facts on this issue set out in my verdict judgment. In short-form, however, they are that: there was an obvious and more plausible explanation than fraud for Mr Salameh’s communications with his brother on 20 January 2022; Mr Salameh was not involved in the purchase of the Hyundai; Mr Salameh had no access to the Hyundai on 12 May 2022 because his brother and father had sold it in January 2022 and never saw it again; the presence of the Hyundai in the vicinity of Sydney Prestige on 12 May 2022 was unexplained (so that, for example, it may well have been there for repair) but the best evidence was that it was not brought there by the applicant (as it was first noticed when he was not in the vicinity); the photograph and video of a person in contact with Mr Lambroglou on the afternoon 12 May 2022 was not capable identifying the applicant; and there was no evidence that whoever was in contact with Mr Lambroglou at that time was thereby supplying him with access to the Hyundai (including because there was no evidence from Mr Lambroglou as to what transpired, and there was no evidence as to how long Mr Lambroglou had access to the Hyundai before he placed it in Bexley North – whether hours, days, weeks or months).

6. [23]

   The Crown case regarding the applicant’s mental state in that alleged act of assistance was even more seriously deficient. In relation to this aspect of the Crown case, I accept the submission for the applicant that the inferences the Crown asked the Court to draw were baseless and illogical; that the deficiency was not subtle, but of a major structural kind.

7. [24]

   The act itself – the supply of a motor vehicle by a car dealer – was not inherently incriminating. The Crown is not required to prove the identity of the principal offenders as an element in the prosecution of an accused person charged as an accessory before the fact to murder, nor the accurate knowledge of an accessory before the fact of the personal identity of any such principals: see for example King v The Queen (1986) 161 CLR 423; [1986] HCA 59 per Dawson J at 434 (Gibbs CJ, Wilson and Brennan JJ agreeing; Murphy, Mason and Deane JJ dissenting on other grounds) and Jaghbir v R [2023] NSWCCA 175 (“Jaghbir”). However in this trial the Crown theory as to the applicant’s mental state was only capable of coherent consideration if the principals were members of the Comanchero, undertaking the murder in retaliation for the shooting of the Zahed brothers. But there was no evidentiary support for these propositions. A number of Crown theories that were entirely unsupported by evidence were background assumptions that were necessary to make probative the evidence said to go to Mr Salameh’s state of mind.

8. [25]

   The absence of evidence of the identity of the principal offenders can be contrasted with a case like Jaghbir. The indictment in Mr Jaghbir’s case specifically alleged that he had assisted unknown offenders murder the deceased (not that I am suggesting the contrast in the form of indictment has any consequence). Mr Jaghbir’s act of assistance was providing assailants with a duplicate key to gain surreptitious access to the deceased’s premises at the time of the murder. He had opportunity to have copied the relevant key, there was evidence that he was expecting a significant amount of money from a named person, his intercepted conversations indicated on their face his belief before the murder that the named person was to ambush the deceased in his home, and there was CCTV footage of his behaviour at the residence of the deceased supporting guilt (a summary of the circumstances appears at [172] of Button J’s judgment).

9. [26]

   The Court of Criminal Appeal upheld in Jaghbir the primary judge’s finding of guilt. The Court held that the finding of guilt was not unreasonable, and the Crown was not required to prove beyond reasonable doubt that the person Mr Jaghbir thought was a principal was in fact a principal. It did not matter if his belief was wrong as to the principal. His conduct made sense if he believed the named person was one of the principals, and this provided strong evidence of his intentional assistance in providing surreptitious entry. His own role was shown by the evidence of his belief as to the principal, even if he was mistaken as to who the principal was.

10. [27]

    In that case, the material relevant to the state of mind of the accused was itself incriminating, regardless of who the principal in fact was. Here, there was nothing incriminating in the evidence the Crown relied upon to demonstrate the state of mind of the applicant – it neither supported any inference as to who the principals were, nor provided an insight into the knowing role of the applicant, even if he was mistaken as to who it was who was going to murder Mr Iskander. There was nothing said by or to the applicant which indicated any knowledge on the part of the applicant that Mr Iskander (or anyone) was at a relevant time to be murdered, nor any guilty role. Rather, the theory must have been that, assuming that the placing of the Hyundai was organised by members of the Comanchero, who organised the murder as an act of retaliation for the shooting of the Zahed brothers, then the applicant would have realised this, and did, given his closeness to the Zahed brothers and his following of mainstream and social media reports about gangland events. In other words, the Crown contention that the applicant “knew” certain things, in the context of this case, was only relevant if this alleged knowledge accorded with reality.

11. [28]

    The person to whom Mr Salameh was alleged to have provided the Hyundai was Mr Lambroglou. Mr Lambroglou’s positioning of the Hyundai at Bexley North assisted the shooters to murder Mr Iskander. However Mr Lambroglou was not himself a principal, nor an accessory before the fact, to the murder. In his placing two of the cars used as getaway vehicles he was participating in an unnamed criminal group, knowing these actions contributed to the occurrence of “criminal activity”. His only guilty plea which incorporated knowledge of the murder of Mr Iskander was to being an accessory after the fact to that murder, based upon knowledge gained after the murder and, it would seem, some contribution to the destruction of evidence.

12. [29]

    There was no evidence that Mr Lambroglou was affiliated with the Comanchero, and this was in circumstances where the Crown adduced evidence from an expert witness about relevant affiliations with the Comanchero. There was no evidence indicating the applicant would have regarded Mr Lambroglou as having any affiliation with the Comanchero. There was no evidence before the Court as to the terms by which the applicant was asked to provide the Hyundai to Mr Lambroglou. The proposition that the Hyundai was made available to people affiliated with the Comanchero (Crown factor two of three, above at [16]) was without evidentiary foundation, unless the Crown could otherwise demonstrate members of the Comanchero organised the murder.

13. [30]

    The proposition that the Comanchero used the Hyundai in a murder which was performed as retaliation for the shooting of the Zahed brothers (which the applicant was said to have known) – the third of the three factors above at [16] – was also unsupported by evidence. In addressing this I will also address two of the six factors referred to above at [17]: the relevance of the murder of Mahmoud Ahmad and the relevance of the shooting of the Zahed brothers.

14. [31]

    There was not a skerrick of evidence indicating that Mr Iskander was involved in the shooting of the Zahed brothers, nor that any relevant person who may have been involved in murdering him thought that he was. The only evidence regarding those with motivation for murdering Mr Iskander was the body of police evidence referred to below at [35] and [37].

15. [32]

    The evidence showed a degree of emotional affection on the applicant’s behalf for each of the Zahed brothers, particularly Omar. It showed the applicant had an interest in and knowledge of high-profile gangland criminal activity between 2020 and 2023, sharing this with a number of others, who are not suggested to have any criminal connection with Mr Iskander’s murder.

16. [33]

    As outlined in the verdict judgment at [24] and [25], the murder of Mr Ahmad was facilitated by two high performance getaway cars and then a third getaway car which was a Subaru Forester. As outlined at [102]-[111], the evidence demonstrated that the applicant (a car dealer) provided the Forester to a person, and that the person into whose name the registration of the Subaru was transferred was not in fact the real possessor of the car. The Crown did not adduce evidence of the identity of the real possessor of the car nor allege that the applicant knew at any stage in advance of Mr Ahmad’s murder that the vehicle was to be used in connection with it. Rather, it contended that it could be inferred that he learned afterwards that it had been so used, and this was relevant to his state of knowledge at the time he allegedly supplied the Hyundai to Mr Lambroglou.

17. [34]

    The difficulty with this suggested relevance of Mr Ahmad’s murder was that despite the significant mainstream and social media information the Crown relied upon as available to the applicant about Mahmoud Ahmad’s murder, none of it referred to a Forester being involved at all. There was no suggestion otherwise as to how the applicant could have come to be informed after the event of the use to which the Forester had been put.

18. [35]

    The evidence regarding who may have been responsible for the murder of Mr Ahmad (see verdict judgment at [49], [53]-[58], [159]) was relevant to the issue of who may have been responsible for the murder of Mr Iskander (see [158]), and was contrary to the Comanchero theory advanced by the Crown (so as to inculpate the applicant because of his association with Tarek Zahed).

19. [36]

    There was no evidence indicating that Mr Iskander was involved in the attack on the Zahed brothers, nor that anyone who may have been involved in murdering Mr Iskander thought him to be so responsible. The only admissible evidence as to who may have been involved in the attack on the Zahed brothers was the statement of Detective Groenewegen that senior members of the Comanchero had been the subject of violent incidents over the preceding two years because of their involvement in conflicts with criminals – with no further detail of this provided regarding Tarek Zahed. There was no evidence at all as to whether any motive existed for harming Omar Zahed, who was not a member of the Comanchero, and accordingly no evidentiary foundation to determine which of the two men was the primary target of the shooting on 10 May 2022 when they were together at the Bodyfit Gym, Auburn.

20. [37]

    The evidence regarding those who may have had a motive to murder Mr Iskander, who was affiliated with the Ahmad organised crime network (including at least the Hamzy and Alameddine organised crime networks) did not include the Comanchero: see [157]-[159].

21. [38]

    In the face of these two fundamental problems with the Crown case, the Crown relied upon the near hysterical assertion to police at 5:05 pm on 12 May 2022 by Tarek Zahed’s wife, at the hospital where her husband lay in a coma, angry with perceived police interference with people who had come to the hospital to show support, that “whoever fucking knocked my brother and husband” was going to get shot, that “we’re onto a war you fucking selfish dogs” and it was going to be “done very soon”. This evidence and the problems with reliance on it are set out in my verdict judgment at [27]-[28], [160]-[162] and [164]. The most obvious inference from watching body-worn video footage of her distraught utterance was that she was making empty threats to police. Further, she was not a witness and did not provide a witness statement (although I acknowledge no objection was taken on behalf of the applicant to this body-worn video recording), was not alleged herself to be planning an attack, and was not a member of the Comanchero (a male only deeply hierarchical group). There was no evidence suggesting she believed, or had been informed of anyone else’s belief, that Rami Iskander shot her husband and brother-in-law, the use of the word “whoever” suggested the lack of any knowledge or belief as to the identity of those who had shot her husband and brother-in-law, and her husband was likely still in a coma at the time she so spoke.

22. [39]

    Although it was not articulated, I surmise the Crown case to have been that the inference should be drawn that because the shooting of Mr Iskander was two days later, it was the shooting that Tarek Zahed’s wife had threatened, and not a different gangland shooting that happened in the following days, weeks or months. However, on the evidence before me, an inference could not be reasonably drawn that one gangland shooting is directly responsive to the one that occurred immediately preceding it – and it was not even made clear in this trial that there were not any further incidents in between. The police evidence revealed the complexity of the violence between various organised criminal networks in Sydney at the relevant time. Consideration of the last gangland incident in time may well generate a line of inquiry undertaken by police, but it is obviously not an endpoint.

23. [40]

    In the absence of any meaningful evidence to support the Crown theory that the Comanchero used the Hyundai in the murder of Mr Iskander in retaliation for the shooting of the Zahed brothers, and a lot of evidence suggesting the contrary, the inference could never have been reasonably drawn that this is what happened. This includes the observation, as outlined in the verdict judgment at [164], that Tarek Zahed was associated with both the Comanchero and the Alameddine crime groups. Of these, only the Alameddine crime group was shown to have an existing motive to kill Mr Iskander.

24. [41]

    The evidence of Tarek Zahed’s wife’s threat to police on 12 May 2022 was incapable of supporting the Crown theory that members of the Comanchero were responsible for murdering Mr Iskander as an act of retaliation for the shooting of the Zahed brothers. Although this is an example of my not having drawn an inference for which the Crown contended, the problems with this evidence were so profound that it should have been apparent to a reasonable prosecutor that this inference would not be drawn. There is additionally the complete absence of evidence by which the applicant would have connected Mr Lambrouglou with such a plan.

25. [42]

    It was in these circumstances that I held that the state of mind of the accused did not need to be turned to: at [168]. Had the evidence proved (additionally to Mr Salameh’s provision of the Hyundai to Mr Lambroglou) that it was members of the Comanchero who arranged this provision, for their use of it in retaliation for the Zahed shooting (see Crown factors 2 and 3 above at [16]), then the media reporting and communications relied upon could logically have had a bearing on Mr Salameh’s state of mind. However it was concluded that there was no evidentiary support for those two factors. As I also held, had I needed to turn to the state of mind of the applicant, the material relied upon would have suggested to a person digesting it that it would be a long time before anything could be determined as to who was responsible for shooting the Zahed brothers, because there were so many contenders: see [169].

26. [43]

    The Court of course recognises the difficulties posed in investigating serious organised crime. This does not make reasonable the prosecution of cases without merit, such as this. There will regrettably be some cases that are not solved. When properly analysed, the references in the trial to the Comanchero were a complete distraction. On the facts presented and as found, it was not reasonable to prosecute Mr Salameh.

27. [44]

    A certificate will be issued in the terms required by the legislation.

Orders

1. [45]

   For the above reasons I make the following order:

   1. (1)

      In relation to Mr Salameh’s acquittal on the charge of murder, I grant the applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying: