Dib v R

HOEBEN CJ at CL:

A stolen, maroon coloured Nissan Pulsar sedan approached [AB]’s car from behind and flashed its lights. [AB] slowed down and the Pulsar drove alongside the driver’s side of his car. One of the occupants of the Pulsar, using a revolver, fired approximately four shots into [AB]’s car. There were at least two other persons in the Pulsar. It was alleged that the shooting took place in the vicinity of 8 Kathleen Street. It was the Crown case that the applicant fired the shots.

[AB] was shot through the neck and seriously wounded. The deceased was shot twice, one bullet skimmed the front of her abdomen and caused minor injuries. The second bullet entered her right upper back and proved fatal. It was not possible to establish the order of the shots. The child passenger was not injured in the shooting.

At the time of the shooting, the blue Holden utility was further up Kathleen Street towards the intersection with the street named “The Boulevarde”. After the shots were fired, the assailant’s car accelerated, drove past the blue utility and turned left into The Boulevarde. [AB] managed to drive his car to the intersection and turned right into The Boulevarde. His car came to a stop shortly afterwards. The blue utility followed [AB]’s car into The Boulevarde and stopped just behind it.

An unmarked police car was driving eastbound along The Boulevarde at the time that the white Toyota and blue utility turned into that street. The occupants, Officers Callaghan and Campbell, observed the cars driving in an erratic manner before they came to a stop. They saw [AB] exit his car in a wounded condition. They also saw El Husseini and Al Zahab exit the blue utility. [AB] approached the police vehicle waving and shouting, which then drove a short distance away from [AB]. Officer Campbell exited the police car and drew his firearm. At some point [AB] collapsed near the side of the road and the police officers eventually realised that he was the victim of a shooting.

Other police officers arrived and unsuccessful attempts were made to resuscitate the deceased. [AB], El Husseini and Al Zahab spoke to the police officers at the scene. The content of these conversations was disputed at trial. The issue was whether [AB] said at this time that he did not know the identity of the assailant. This evidence is dealt with in detail later in this judgment.

The assailant’s car was driven to a nearby street in Wiley Park and set on fire. [AB] was taken to a hospital for urgent medical treatment. He underwent surgery to his neck area (repair of a pharyngeal injury and tracheostomy) which was completed at about 2.51am on 24 November 2000. For some days after [AB] regained consciousness, he was either unable to speak or could only speak with difficulty.

Two detectives, Karras and Apolony, attended the hospital at about 1pm on 24 November 2000. From this time until 5 December 2000 Detectives Karras and Apolony regularly visited [AB] and spoke to him about the shooting. [AB] was unable to speak for most of this period.

Notes were taken during these attendances. The notes were made in a spiral notebook, on hospital notepaper, in Detective Apolony’s notebook and some on loose pieces of paper. On the Crown case, these notes contained [AB]’s handwritten responses to questions from the detectives. The notes are undated. Questions asked by the detectives were not recorded in the notes. No video or sound recording was made of these meetings. Three handwritten statements were taken from [AB] in a police notebook on November 24, 25 and 29. The statements are in a question and answer format.

The content of these communications is set out later in this judgment. It was the Crown case that these notes recorded [AB]’s identification of the applicant (referred to as “Fairy”) as the shooter, the applicant’s older brother, Mohammed Dib as the driver of the Pulsar and a third male, Bashar Ibrahim as a rear passenger in the car. The applicant’s motive was said to be that he believed that [AB] was an informer and could implicate him in the killing of Edward Lee.

In early December 2000 shortly after his discharge from hospital, [AB] indicated to investigating police that the statements which he made in the hospital were untrue. Police officers attended [AB]’s home and sought to persuade him not to change or retract his evidence. On 15 December 2000 [AB] attended Bankstown Police Station and gave a detailed statement in which he retracted his nomination or identification of the applicant, Mohammed Dib and Bashar Ibrahim, as the assailants.

From that time onwards, in the course of giving evidence on a number of occasions in committal, pre-trial and trial proceedings, [AB] maintained that he was unable to identify the shooter and the other assailants. Since then [AB] has consistently stated that the shooter’s face was concealed by a balaclava. Both Monzer El Husseini and Jalal Al Zahab gave evidence that [AB] said words to this effect immediately after the shooting. Monzer El Husseini gave evidence that he observed that the occupants of the Pulsar were wearing balaclavas.

The three witnesses to the shooting each gave evidence that was contrary to the Crown case. Leave was granted to the Crown under s 38 of the Evidence Act 1995 to cross-examine each of them.

The Crown alleged that a baseball cap was found in the vicinity where the shooting occurred. An unfired automatic cartridge was located approximately 10 metres from the cap. The cartridge could not have been used in the handgun that fired the shots. DNA material from at least three people was detected on the cap. Evidence was adduced that a DNA profile matching that of the applicant was extracted from the cap. The name “Omar” was handwritten on the cap. There was evidence that the applicant’s youngest sibling was named Omar. The significance of this evidence was challenged by the defence in a number of ways.

With the concurrence of the Crown, the jury was directed that it had to be independently satisfied beyond reasonable doubt of [AB]’s identification of the applicant. In other words, the jury was not permitted to take the DNA evidence into account on the issue of identification of the applicant as the shooter.

The Crown also relied upon a witness who gave evidence under the pseudonym “John Lee”. He was a convicted drug dealer who undertook to give evidence against the applicant. He received a substantial discount to his sentence for assisting the authorities. The Crown sought to establish through this witness that the applicant asked about procuring a “hottie” – a stolen car – prior to the shooting. The Crown sought to prove that the applicant had spoken, in the witness’ presence, about [AB] being a police informer and, following media reporting of the incident, had attempted to justify the results of the shooting on this basis.

This evidence was relevant to the Crown case on motive. On 17 October 1998 when the applicant was aged 15, he was involved in the stabbing homicide of Edward Lee. At the time of the shooting, the applicant had not been charged with any offence in relation to the Edward Lee matter. The applicant later pleaded guilty to the manslaughter of Edward Lee. The incident arose from an altercation between two groups of young males in Telopea Street, Punchbowl where the applicant lived with his family. The applicant lost control and stabbed Lee, a 14 year old, after he saw his older brother knocked unconscious by one of Lee’s friends. This incident was the subject of a large amount of publicity. [AB] was allegedly present at the aftermath of the stabbing and therefore in a position to give incriminating evidence against the applicant.

The Crown alleged that the applicant had motive to kill [AB] because 1) he believed that [AB] was a police informer and 2) he knew [AB] was in a position to implicate him in the Edward Lee stabbing. Evidence was given that in July 2000 [AB] gave an induced statement to the NSW Crime Commission which implicated the applicant in the stabbing. There was no evidence that the applicant was aware of this fact (the statement was kept confidential by police in the period leading up to the shooting incident).

The applicant was born in December 1982 and was aged 17 at the time of the offences. He was aged 15 when he killed Edward Lee. The applicant did not give evidence in the trial. He relied upon exculpatory evidence given by the key Crown witnesses, i.e. [AB], Monzer El Husseini and Jalal Al Zahab in their evidence in chief, together with other evidence adverse to the prosecution case that was elicited during the cross-examination of Crown witnesses. It was the defence case that the evidence did not establish that the applicant was involved in the shooting incident.

The evidence and contentions relied upon by the defence included the following:

There had been two previous trials of the applicant for the offences relating to the deceased’s death and the attack on [AB]. Both trials did not proceed to verdict for reasons which are not presently relevant. [AB] gave evidence in the first of those trials and in the trial, the subject of this appeal.

The applicant was tried before Barr AJ and a jury in the Supreme Court on an indictment that contained the following counts:

The applicant was arraigned on 13 June 2012. The jury found him guilty of both counts on 9 July 2012. He was sentenced on 23 November 2012 (R v Moustapha Dib [2012] NSWSC 1431) as follows:

The applicant has appealed against the convictions pursuant to ss 5(1)(a) and (b) of the Criminal Appeal Act 1912 upon the following grounds.

In the hearing of the appeal, the applicant did not press Ground 6.

[AB] gave evidence at trial. He said that he had a good memory of that particular night. He had been at school with the applicant’s older brother and referred to the applicant as his “mate’s brother …” and he saw him on a fairly regular basis. On the evening of Thursday, 23 November 2000, close to dark, [AB], the deceased and their young son were in a white Toyota Seca driving north in Kathleen Street, Wiley Park towards The Boulevarde. His friends, Monzer El Husseini and Jalal Al Zahab were driving ahead of them.

A maroon Nissan Pulsar drove past the car [AB] was driving. When it was slightly in front of [AB]’s car (having first drawn level with it) the person sitting in the front passenger seat of the Pulsar, less than two metres away, fired about four shots. The shooter was wearing a balaclava and his arm was out through the car’s window. [AB] did not initially realise that both he and the deceased had been hit. The Pulsar then “took off” up Kathleen Street, as did [AB]. However, the Pulsar turned left at The Boulevarde . [AB] turned right into The Boulevarde, then stopped his car. Al Zahab and El Husseini also turned right into The Boulevarde. They removed the deceased and her son from the car.

[AB]’s evidence at trial as to the events at The Boulevarde was:

[AB] said that he was unable to identity the shooter, as both the shooter and the driver were wearing balaclavas. He thought that there was at least one person in the back seat, maybe two. He explained what he had told the police at the hospital as follows. He said that the police “were coming every day” and that he communicated with them by writing answers to their questions. He said, “at the beginning they were telling me this was what happened to you because of the statement about Edward Lee that was the main thing they were telling me. That’s what happened here because of what happened with Edward Lee because you didn’t assist us” (T.374.18). [AB] said that the persons he nominated at the hospital were friends of his and he had not had any difficulties with them.

Two or three days after he was discharged from hospital (in early December 2000), [AB] went to a police station and “told them I don’t remember who did it”. When he was asked why he had changed what he was saying, he said that after he left hospital he had a chance to think without the police influencing him (T.384.27). He said:

When asked to explain why he had nominated the applicant as his assailant the day after the shooting, [AB] said that the investigating police put pressure on him and “took advantage of the medication and they took advantage of the circumstance I was in” (T.406.35). He also said:

[AB] said that except for what he wrote in hospital, he had always maintained that he did not know who shot him and the deceased. He said that this is what he said in his statement on 15 December 2000 and in subsequent court proceedings. He referred to an affidavit which he swore before his then solicitor in Jordan in 2008. The effect of the affidavit was that he was willing to return to Australia to give evidence and that he had not seen the shooter’s face. The affidavit went on to say that he was told in hospital by the police (who had earlier threatened to charge him with his involvement in disposing of evidence in the Edward Lee murder), that he was shot because he did not take up their offer to give evidence in that matter. The affidavit asserted that as a result of what the police told him, he formed the opinion that the shooting was because of his statement against the applicant about the Lee matter; his mind was playing games and he was trying to reconstruct events by placing different people as the shooter; the information he gave to investigating police was a combination of what they had told him and his own imagination.

The first time that [AB] said anything about the shooting was when police arrived at the scene of the shooting. His evidence at trial about this was that after the shooting he thought he was going to die and he said the “Ashad”, which is a prayer said by Muslims when they expect to die. He said that in such circumstances he would not have told a lie. His evidence of what he told the police officers at the scene was:

The evidence of Al Zahab at trial on this issue was:

The evidence of El Husseini on this issue was:

Constables Campbell and Callaghan were the first police officers to arrive. They were there entirely by accident. Constable Campbell in his statement described [AB] running towards their vehicle, throwing his arms from side to side and screaming in an aggressive way. He was yelling “What are you cunts going to do? Fucking help me”. He then ran back to his vehicle and drove towards the police vehicle causing Constable Campbell to raise his pistol and direct him to stop. His vehicle came to a stop approximately three metres from the police vehicle. He again rushed towards the police vehicle waving his hands but then fell to the ground. In his statement read at trial Constable Campbell said:

Constable Callaghan in his statement said:

In his evidence at trial, he said:

Detective Inspector Hallinan, who was then a detective sergeant, arrived shortly after Constables Campbell and Callaghan. In his statement, he said:

At trial, he said:

At no time did any of the police officers see a Muslim religious person or cleric approach or speak to [AB].

The evidence of what happened at the St George Hospital came from Detectives Karras and Apolony. Except where indicated, their statements and evidence were in identical terms. This was a source of cross-examination and adverse comment at trial.

The evidence of what [AB] wrote while in the St George Hospital was of fundamental importance in the trial. It formed the basis of the Crown case. If that evidence was not accepted by the jury as honest and reliable, the Crown had no case. It is for this reason that I have set out this evidence in its entirety. As can be seen from the summary of [AB]’s evidence at trial, he did not deny that he wrote what was recorded by the police officers, but said that what he had written was untrue. He also challenged the circumstances in which he wrote those responses, i.e. that certain suggestions were made to him by the police officers.

The first interview at the hospital took place on 24 November 2000 between 1pm and 2.10pm. The following conversation took place with Detective Karras asking questions and [AB] writing the answers:

24 November 2000 – 2.10pm – 3.22pm

24 November 2000 – sometime before 3.22pm

24 November 2000 – 3.38pm – 4.01pm. Detectives Karras and Apolony returned to the Intensive Care ward.

As the officers began to read [AB]’s last response, he indicated that he wanted to write more. [AB] then wrote:

Detectives Karras and Apolony left the ward at 4pm. Subsequently they spoke to Monzer El Husseini, who declined to give a statement or assist with the matter. At about 9.15pm they again entered the Intensive Care ward. They were accompanied by [AB]’s brother, MB. MB was allowed time to speak to [AB] alone. A short time later, MB approached the detectives and handed over a page of hospital clinical note paper which contained the following:

24 November 2000 – shortly after 9.15pm. Detectives Karras and Apolony entered the room with MB and Detective Karras said:

25 November 2000 - Detectives Karras and Apolony returned to the hospital to speak to [AB] who had been moved to the Day Surgery ward. The detectives met [AB]’s parents, who were accompanied by MB. MB gave Detective Karras a piece of paper on which was written “I give authorisation to bury my wife tomorrow” (Ex AT).

The following then took place:

25 November 2000 – 3.15pm

Detective Apolony placed the official jurat into his police notebook. The following sets out what is recorded on pp 4-6 of that notebook.

Detective Karras left the room to collect MB. While he was gone, Detective Apolony said to [AB] “Can I ask you a few questions, just to confirm what happened? I’m not going to ask you to sign anything, I just want to ask you some background questions.”

Detective Apolony said “How far down the street from your car was Monzer’s car?”

Detective Karras returned to the ward with MB. MB requested to speak to [AB] alone. MB and [AB] spoke for about 10 minutes in Arabic and during this time, both [AB] and MB were very emotional. A short time later, MB called the detectives into the room.

29 November 2000 – 12.30pm

29 November 2000 – 7pm

Detective Apolony placed the official jurat in the notebook.

The following is taken from Detective Apolony’s notebook, pp 10 – 18.

Detective Karras spoke to [AB] on 1 December 2000. The following exchange took place.

Detectives Karras and Apolony attended the St George Hospital on 5 December 2000 and spoke to [AB].

Detective Karras said that his involvement in the investigation concerning the shooting was limited to dealing with [AB] because of a pre-existing relationship. His previous dealings with him had been in the context of him giving an induced witness statement on 13 July 2000 about the death of Edward Lee. [AB] was to be a witness before he became a victim on 23 November 2000.

Detective Karras said that [AB] was “perfectly co-operative” when spoken to in hospital. He said that he (Karras) had not asked how the shooting had happened and who was responsible because “he was not in a condition to give me a lengthy story. They were very short answers [and he] was using his own slang … straight up he said “Fairy”.” (T.759 – 60) Both Detectives Karras and Apolony gave their evidence by reading substantial parts of their witness statements before the jury.

Detective Karras said that except for the first two occasions, he had a video camera with him when he spoke with [AB]. It was not used because [AB] did not want to be recorded. He agreed that it was probably standard procedure by the time of trial to video record a person giving information, but as at November 2000 it was “not for a witness … I treated him as a victim of crime [and] a witness.” He agreed that [AB] had at an earlier time named upward of 20 or more serious criminal persons for various serious crimes and agreed that any of these persons might have had a motive to kill [AB].

Detective Karras was cross-examined to the effect that making his statement on 19 December 2000 with Apolony was improper because corroborating officers should produce independent records of the event. Detective Karras denied that proposition. He said that the statement was made by reference to duty books, TIMS running sheets and intelligence reports. When cross-examined about the contemporaneity of the notes recording the conversations with [AB], and the fact that his statement was not made until 19 December 2000, Detective Karras referred to the contemporaneous records which set out each interaction with [AB] and which enabled him to prepare an accurate statement.

Detective Karras specifically denied that he “stood over” [AB], that he nominated any person to him as responsible for the shootings, or had persuaded him that the applicant and Basher were involved. He denied that his evidence was “a tissue of lies”.

Detective Karras was re-called on the issue of running sheets/information/intelligence reports and explained the process of creation and storage of that information. He denied the proposition that the running sheets, although commenced on the dates specified, were in fact completed later or amended between their creation and being entered on the police information system. Detective Karras rejected the proposition that he and Detective Apolony had “fabricated or doctored” documents once it became known that [AB] was “not going to help”.

Unlike Detective Karras, Detective Apolony had attended the crime scene, arriving at about 1am on Friday 24 November 2000. He spoke to various police and was later involved in the execution of a search warrant before being sent with Detective Karras to attend St George Hospital to speak to [AB]. He was present when the applicant was arrested.

Detective Apolony said that he and Detective Karras had “attempted to video record the conversations and interviews with [AB] but that [AB] had objected to this by raising his right hand and waving the video camera away indicating that he did not want it recorded”.

Detective Apolony was the officer in charge of the investigation into the death of Edward Lee on 17 October 1998. He agreed that after [AB] gave him the statement on 13 July 2000, he did not immediately arrest the applicant for that offence. He was still investigating the offence when on 25 July 2000 [AB] said that he did not want to give evidence or assist the police. He was unable to say why the applicant was not arrested immediately after he and Detective Karras had [AB]’s identification of the shooter. The decision to arrest or not to arrest the applicant was not his.

Detective Apolony denied that in conversations with [AB], he or Detective Karras had said that it was the applicant who shot him because of his witness statement implicating him in the Edward Lee killing. He said in cross examination that he did not know why [AB] and the deceased were shot because “those statements he made were never shown to anyone between July and November when this happened. So there was no evidence or there’s no indication that it related to his statement because we had not told anyone about it” (T.806).

Detective Apolony said that neither he nor Detective Karras had decided anything about who was responsible before speaking to [AB] who immediately told them who was responsible. He agreed that the first few pages of his spiral notebook (Ex BF), immediately before the page where [AB] wrote “Fairy”, contained some details of the applicant, Ahmed and Mohammed Dib and the name of a solicitor who acted for some of them. Detective Apolony explained that these details related to the investigation into the Edward Lee killing, and included the applicant as the person who had done the stabbing.

Detective Apolony was cross-examined extensively about how his statement and that of Detective Karras were in almost all respects identical when setting out the exchanges with [AB]. Like Detective Karras, he referred to the joint compilation of the statements from the TIMS documents, information reports and running sheets. He explained that the practice was not to include running sheets and a brief of evidence but rather, as occurred here, to include in the witness statement those parts of the running sheets which were relevant.

Detective Apolony denied that the time taken between 1pm and 2.10pm (the first exchange between Detective Karras and [AB]) was spent persuading [AB] that the applicant was responsible for the shooting which had occurred because of [AB]’s statement implicating the applicant in the killing of Edward Lee.

He denied that during the search of Monzer El Husseini’s home he had heard one of the police say “we will take him back, charge him with murder and see what he says” although he was aware that El Husseini had been arrested and as “it was the early stages yet, we [didn’t] know what involvement he had”. He also denied that he had put [AB] up to writing Exhibit AO. He said that [AB] “off his own bat grabbed the note pad and wrote down “help me Monzer” …”. He also disagreed that [AB] had written “maybe Fairy” rather than “maybe funny”.

A witness using the pseudonym “John Lee” was called in the Crown case. Lee had been at school with the applicant (whom he knew as “Fairy”) and his brothers. He also knew [AB] and others in the Punchbowl area. He did not, however, regard himself as being “close” to either the applicant or [AB].

He left school in 1996 and after some time began selling cocaine and heroin in Kings Cross daily. He “wanted to do what my friends were doing and I just wanted to be cool and stuff”. He sold those drugs for about a year or a little longer (he was aged about 18) and it was in about 1998/99. At the time he was using cannabis, heroin and cocaine. For eight months to a year he was selling heroin and cocaine on Telopea Street, Punchbowl doing the “afternoon shift” until he was arrested in November 2000. At that stage he was using drugs every day himself, mainly heroin and cannabis.

He said that at that time he saw the applicant every day and had spoken to him on occasions. In a conversation with him in Telopea Street the applicant said “[AB] was a dog”. Lee could not remember if others were present, although there were lots of people there every day. He said that the applicant “used to say that [AB] was a dog” and “if you testify your next of kin will die”. Lee said that the applicant used to say this “in different conversations, like we used to bring it up all the time that [AB] was a dog but I didn’t know what reason for”. The description “dog” was understood by Lee to mean a person who “gives statements to the police”. Lee said that the term was used more than once by other people as well as the applicant, although the latter “was the main one saying it, like that’s how I knew, but I really didn’t know why he was a dog”.

Lee came to hear of the shooting of [AB] after arriving in Telopea Street to sell drugs and “[the applicant] and a couple of other boys, they had a newspaper and they were reading it, and they told me [AB] had been shot and I saw a picture of his wife’s car”. Lee said, “No, shoot him, but why his wife and [the applicant] said if you kill someone, you have to kill the witness too or otherwise they become a witness”. Lee said that the police would have found the shells to which the applicant replied “No, they would have found shit because they wore gloves and balaclavas and stuff like that”.

Lee was given leave to refresh his recollection from his witness statement as to these conversations and confirmed his earlier evidence that the applicant had referred to [AB] as a “dog” “Like, no more than a week” before the shooting. The applicant also said that [AB] “was going to testify the next day”. A person “Wally” said that Monzer [El Husseini] was also a “dog” but the applicant said he was not, although he named Alex Popovic and Joey Allen as “dogs”. The following is the more detailed evidence which Lee gave by refreshing his memory from time to time from his statement.

Lee was in Telopea Street with the applicant and others “probably a couple of days” before [AB] was shot when the applicant asked “Freckles” [Mohammed Ismail] “Can you get me a hottie [a stolen car]? If you can’t get me one, I’ll just get someone else, one of my other people that used to get Michael Kanaan stolen cars, to get me one”. In a separate conversation the applicant said “If you testify your next of kin will die”. The applicant said that he wanted to put something about Punchbowl in the newspaper.

Lee said that “probably the day after [AB] had been shot and his wife” again in a conversation in Telopea Street with the applicant and others, the applicant said “If you shoot someone you have to shoot the witness too because the witness will become a Crown [witness] and that’s how people get done for murder”. Later in that conversation, the applicant said “the stolen car was burnt up the road and the police are probably going to raid here … They found a hottie up the road, next to Tony Haddad’s house”. The applicant also said “If you shoot someone, you have to shoot the witness too. I don’t feel sorry for no-one because that’s how people get done for murder”.

Lee said that within “one or two days after the shooting … I just rocked up there [Telopea Street] and they were really looking at the [Daily Telegraph] paper. We were all looking at the paper, together yeah and just talking about the incident … I remember [the applicant] telling me that [AB] got shot twice in the neck and his wife – and he lived and he got shot in the voice box so he won’t be able to testify now and his wife got one shot in the stomach and she just died … and he deserved it for all the bad things he’s done” (T.944).

In another conversation with the applicant about the newspaper article, Lee commented that police would find “shells, bullet casings” from the gun to which the applicant replied “No they wouldn’t have found shoot because they would have been professionals, they would have used a revolver, balaclavas, stolen car, they would have wore gloves” (T.943).

Within a few days Lee, the applicant and a number of others were arrested at Telopea Street by police. Lee was charged with various offences, including the supply of drugs. He later received a 60 percent discount on sentence for his assistance to authorities, including his statement to police of 30 November 2000 relative to this matter, and information concerning the killing of Edward Lee. Lee said that at the time of the events just related, he was using drugs every day and spending his daily earnings on them. He smoked heroin daily, sometimes snorted cocaine and also used cannabis.

In cross-examination Lee agreed that he had been dealing in drugs for a long time and that he faced charges with a maximum sentence of 20 years. He also agreed that he knew (because he had done it before), that if he gave police information – that assistance would or could garner a big sentence discount. He agreed that on 28 November 2000 when he was examined on oath before the Crime Commission he said he had no information about [AB]’s shooting. He disagreed that the conversation about the “hottie” was “information for the shooting”; in fact he had “never heard [the applicant] shot anyone”. Lee agreed that the applicant was not at that time “big noting himself to be a big man like Gee, look what I’d done … all the discussions were about what was in the newspaper”.

Lee agreed that he had not himself prepared his witness statement and that it used language he would not use. The police had prepared it. Nevertheless, he said that the contents were true. He agreed that he was addicted to heroin at the time of his arrest in November 2000 and had suffered withdrawal following his arrest. He agreed that at the time his witness statement was being prepared [when he was visited by police “more than a couple of times”] because of his withdrawing from heroin, he was not in a state to do anything much but agree with police and sign it.

He agreed that nothing the applicant said made him think that he had anything to do with the shooting. The discussions about the shooting followed publicity concerning it and the applicant did not say what it was that [AB] had been “dogging” about, including whether it had anything to do with the applicant, nor any killing. He was aware that the applicant’s brothers were involved in car re-birthing and that the “hottie” may have had something to do with that.

Armani Derbas, a friend of the deceased, gave evidence. She said:

She agreed in cross-examination that the Dib family were very supportive of the deceased.

Professor Starmer gave evidence as to the possible effect on [AB] of the drugs administered to him while he was in hospital. Professor Starmer had forty years experience in research on the effects of drugs and alcohol. He had been a professor of pharmacology at the University of Sydney for in excess of 25 years.

Professor Starmer identified the following substances which were administered to [AB] during his first 24 hours in hospital: morphine, 10 milligrams. Metocloprimide, 10 milligrams. Midazolam, which was a short acting Benzodiazepine. Professor Starmer said that [AB] was operated on as soon as he arrived at hospital and was transferred to the Intensive Care Unit at approximately 3am on 24 November 2000. From his reading of the notes, it was Professor Starmer’s understanding that [AB] was being treated with morphine throughout 24 November 2000, but he was not able to say how many 10 mg doses he would have received during that time. He regarded 10 mgs of morphine as being “a reasonably hefty dose”.

Professor Starmer described the effects of Morphine as follows:

When asked about the medication [AB] would have been taking at 12pm on 24 November, Professor Starmer said:

Because [AB] was also receiving Panadeine Forte, Professor Starmer was asked to explain the effect of that preparation on him.

Professor Starmer said that one of the effects of morphine was to cause drowsiness. It could also cause changes in mood and could cause what is referred to as “mental clouding”. Professor Starmer pointed out that once [AB] was started on Panadeine Forte, the administration of morphine would probably have ceased. Professor Starmer thought that if mental clouding was occurring in relation to [AB], it would be due to morphine. Professor Starmer also explained that hallucinations as a result of morphine were reasonably common.

In relation to those issues, the following answers were given by Professor Starmer:

Under cross-examination, it was suggested to Professor Starmer that the administration of certain general anaesthetics could cause a temporary loss of memory. He said:

The following proposition was put to Professor Starmer in cross-examination:

In re-examination the following proposition was put to Professor Starmer by the Crown:

In addition to the evidence of what [AB] was reported to have said when first spoken to by the police after the shooting, there was other evidence concerning the crime scene. All of the police who attended gave evidence that Al Zahab, El Husseini and [AB] were behaving aggressively towards the police at the scene. There was evidence that between 10 and 20 males of Middle Eastern appearance had come from nearby residences and were standing about the crime scene. There was also a small number of onlookers observed near the parked vehicles. Neither Al Zahab nor El Husseini when interviewed could provide any information about the identity of the shooter or the other persons in his car. Despite the directions of the police, onlookers were ducking under the crime scene tape and walking about the area. Police witnesses agreed that it was very difficult to control the crime scene.

Senior Sergeant Palywoda, in company with Constable Broadhurst and Detective Lowry, saw a baseball cap on the roadway. Sergeant Palywoda agreed in cross-examination that her statement contained no reference to the baseball cap. She explained that at the time she made her statement, the baseball cap was not thought to be relevant.

Constable Broadhurst also saw the baseball cap in the middle of the road in front of number 6 Kathleen Street. He also found one Winchester .38 auto round in the middle of Kathleen Street, in front of house number 8. These items were referred to in his notebook entry for the night.

The jury conducted a view of the crime scene on the evening of 19 June 2012. They viewed the relevant roads, i.e. Melrose Avenue, Kathleen Street and The Boulevarde, when it was dark. They observed the suspected location of the shooting outside houses 6 and 8 in Kathleen Street. The jury saw the intersection of The Boulevarde and Ernest Street and the location where the two vehicles stopped in The Boulevarde. Reference was made to a sketch plan drawn by one of the detectives at the scene.

Detective Sergeant Horn gave evidence concerning gunshot residue. He agreed in cross-examination that the decision to look for gunshot residue could be critical because there were time limits for such testing. Such residue was generally propelled 1 – 1.5 metres from a pistol, although a longer barrelled firearm would propel it further. He agreed that although various items were tested for such residue, the baseball cap was not. He agreed that had the baseball cap been worn by the shooter, one would have expected “some” residue on it. Detective Sergeant Horn was surprised that the cap had not been tested for gunshot residue.

Constable Edgar was another police officer who attended the crime scene. She observed the words “Omar 6A” written on the peak of the baseball cap. Presumptive tests were conducted on several stained areas on the cap, but no result was obtained. It was common ground that the applicant’s younger brother, Omar Dib, was born in 1988 and was in class 6A at the Greenacre Public School in 2000.

The baseball cap was tested for DNA. DNA samples were taken from both the applicant and his brother, Mohammed Dib. Michelle Franco, the forensic biologist who carried out the testing, concluded that one of the areas on the cap contained a complex mixture from at least three individual contributors preventing the determination of the individual profile. The effect of that and other testing was that while the applicant’s brother, Mohammed Dib, could be excluded as a wearer of the cap, the applicant could not.

Detective Constable Cini was a forensic ballistician who examined the lead projectiles recovered from [AB]’s car. He was able to establish that the unfired cartridge recovered from the roadway came from a different cartridge case to the bullets taken from the car and from the deceased and that it could not be fired from the same weapon. In relation to gunshot residue, he said that it would depend on the ammunition in each case whether the propellant or primer particles would “carry a distance of up to one and a half metres”.

Detective Sergeant Grima was also a forensic ballistician. He examined the bullets found in [AB]’s car. He was satisfied that a total of four shots had been fired into the car. Of the bullets recovered, he was able to say that two had been discharged from the same weapon but was not able to express an opinion in relation to the other two bullets. He thought that the shots would have had to have been fired from some distance in front of the windscreen and downward in quite an angle, i.e. 20 degrees or more and that the shooter would have been firing downwards, or from a vehicle higher than that of [AB]. In the alternative, he thought that the hand and arm of the shooter could account for the angle of the shot. He also agreed that the unfired .38 cartridge retrieved from the roadway was of a totally different calibre to the bullets taken from the car and could not be fired from the same weapon. He would expect to find gunshot residue on the peak of the cap, depending on the proximity of the cap to the weapon.

Mr Molina made a statement to the police on 24 November 2000. He was then aged 47. At about 10.15pm on 23 November 2000 he was in Kathleen Street having come home from work. When he got out of his car, he heard engines revving and saw two cars drive past him in Kathleen Street very quickly. They were heading towards The Boulevarde. Mr Molina was standing at the front of his house at the time. He described one car as being white or light in colour and the other as either red/brown or darkish in colour. He described the white car as being just slightly ahead of the other car, but that they were almost abreast of each other. After a few seconds, he thought he heard noises that sounded like gunshots.

He observed that the white car was on the correct side of the road and the darker car was on the wrong side of the road. Otherwise he did not take any particular notice of the vehicles as they went past because it was dark. He described the conditions in Kathleen Street at the time as follows:

In cross-examination Mr Molina agreed that it was very dark and that there was “absolutely no way you could tell how many people were in that car”. From his side of the street, the red car was closer to him than the white car. He thought that there were five shots in total and that it took barely a second for the shots to be fired.

Police had been unable to locate [AB]’s brother, MB. During his evidence, AB offered to contact his brother and get him to court which duly occurred. MB denied that he had ever been left alone with his brother in the hospital. He said that when he was taken to the St George Hospital by Detectives Karras and Apolony to see his brother, he asked [AB] what had happened. [AB] first gestured by raising his hands to each side of his head and pulling them down. He said that later [AB] wrote on a piece of paper “balaclava”.

MB was cross-examined by the Crown, pursuant to s 38 of the Evidence Act 1995. He agreed that [AB] had written down the three names Basher, Dib and “Fairy” on a piece of paper. He said that the word “balaclava” was “maybe on another piece of paper, I don’t know … the first thing he said was – made an action like this (indicated) balaclava and then he wrote the three names after I asked him who did this”. (T.880.36) He agreed that he had given evidence on two previous occasions when he made no mention of balaclavas but denied that his evidence on this occasion was false.

Included in the exhibits was a photo of a revolver being fired, showing the flash thereby created (Ex 1). While the purpose of that exhibit was to demonstrate the blow-back of gunshot residue, it was also effective to demonstrate the flash effect associated with the discharge of any firearm, including a pistol.

I propose to deal first with Ground 8. A consideration of this ground requires a close analysis of the evidence. Once that analysis has been carried out, it can, if necessary, be used and relied upon when considering the other grounds which are more narrowly focused. Moreover, if the applicant is successful on this ground, he is entitled to an acquittal whereas success on any of the other grounds would, at best, entitle him to a re-trial. It follows that this Court will have to consider this ground in any event. When considering this ground, I have accepted that all the evidence before the jury was properly admitted.

Subs 6(1) of the Criminal Appeal Act 1912 provides, inter alia, that:

The correct approach to determining a ground of appeal which asserts that verdicts are unreasonable or cannot be supported was considered by the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400. The plurality (French CJ, Gummow and Kiefel JJ) summarised the relevant principles as follows:

There are other caveats. As McHugh, Gummow and Kirby JJ observed in MFA v R [2002] HCA 53; 213 CLR 606 at [59] the determination by an appellate court of the reasonableness of a jury’s verdict “involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials”. Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in (R v Micallef [2002] NSWCCA 480; 136 A Crim A 127 and Burrell v R [2009] NSWCCA 193 at [55]). Finally, the burden of persuasion that appellate interference is required rests with the party who impugns the verdict (MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at [370]).

The key issue in this trial was the identification of the shooter. There was no issue that all of the other ingredients for the offences with which the applicant was charged, had been made out. Because of the importance of identification, I am troubled by the part played by the DNA evidence. As his Honour made clear in his summing up, and as was conceded by the Crown, the DNA evidence from the baseball cap could not be used by the jury as part of the identification process of the applicant. The trial was run on the basis that the jury had to be otherwise satisfied beyond reasonable doubt of the identification of the applicant as the shooter before they could use the DNA evidence. In other words, while the DNA evidence was relevant to issues in the trial, in the sense that it and the finding of the baseball cap formed part of the background and context, the DNA evidence was irrelevant to the identification issue.

What troubles me is that a considerable amount of time in the trial generally and in the summing up was spent on the DNA issue when it was peripheral insofar as the fundamental question of identification was concerned. Although that point was made in the summing up, there was a real risk that the DNA evidence would have been misused by some members of the jury as strengthening the Crown’s case on identification.

Although that is a different issue to that which is raised in this Ground of Appeal, it does feed into it to some extent. It needs to be understood that when considering the Crown case on identification of the applicant as the shooter, no weight can be given to the DNA evidence. It is irrelevant to that issue.

The applicant submitted that the Crown case against him on identification comprised two strands:

He submitted that the most important strand of the Crown case required the jury to be satisfied beyond reasonable doubt that [AB] had truthfully and reliably identified him as the shooter. He submitted that the evidence of motive was of marginal relevance. He submitted that even if one accepted that the evidence of John Lee was credible and reliable (which he did not) it went no further than establishing that he [the applicant] was one of a number of people in [AB]’s milieu who had a possible motive to harm [AB].

The applicant developed his submissions as follows. [AB] gave persistent and unwavering evidence in the face of protracted cross-examination by the Crown that he was unable to identify the shooter. [AB] gave evidence that the assailants were wearing balaclavas. This was consistent with the nature of the crime which involved other acts of concealment, e.g. the use of a stolen car and the incineration of the car immediately after the shooting. That evidence was corroborated by the evidence of what [AB] said in the immediate aftermath of the shooting when he said that he was unable to identify the assailant. The two other witnesses to the shooting, Al Zahab and El Husseini, gave evidence that they heard [AB] say that the shooter was wearing a balaclava.

There was an inherent contradiction in the Crown case. On the one hand, the Crown submitted that [AB] was untruthful in what he said at the scene of the accident and subsequent to leaving hospital, yet on the other hand what he wrote while in hospital was to be accepted as true. The Crown had not demonstrated why what was written in the hospital should be accepted as identifying beyond reasonable doubt that the applicant was the shooter, in preference to what [AB] said at the scene of the accident and in court. No motive was established for why [AB], Al Zahab and El Husseini should wish to exculpate the applicant. It was clear from their evidence that they had not colluded with one another in preparing their evidence.

It was clear why [AB] may have created an unfavourable impression on the jury. It was accepted that he had lost his temper on a number of occasions under cross-examination and made unresponsive outbursts. This was understandable in circumstances where he was giving evidence more than 12 years after the incident. He had been a victim of the crime and had suffered the loss of his wife. Although he denied on oath that he could identify the assailants, the authorities did not accept that denial and he was charged with perverting the course of justice. He had been arrested overseas and held in a Syrian prison for 7 months and tortured. He was extradited to Australia and was then accused of lying about the circumstances that caused the death of his wife and from which he barely survived (T.475.34).

It was against this background that what [AB] wrote in hospital was to be evaluated. If the Crown successfully established that [AB] was a witness completely lacking in credibility, then as a matter of logic, this impacted adversely on the weight which could be given to what he wrote in hospital.

Even if what [AB] said at the scene of the accident and in evidence was to be disregarded, there were other matters that cast serious doubt on the reliability of the identification evidence given in hospital.

In relation to motive, there was no evidence that the applicant knew that [AB] had given a statement to the Crime Commission on 13 July 2000 about the Edward Lee killing. The evidence went no higher than that the applicant was aware that [AB] could give evidence against him in relation to that matter. There was evidence that many other persons in the criminal milieu, with which [AB] was associated, had a motive to kill him.

There were serious problems with the evidence of John Lee. He was a convicted drug dealer, who received a substantial sentence discount (60 percent) for assisting the authorities. He was in a desperate state after his arrest and undergoing withdrawal at the time when he made a statement. He was heavily addicted and consuming drugs at the time of the events covered by his evidence so as to adversely affect its reliability. John Lee appeared to be suffering from memory problems when he gave his evidence. Despite having refreshed his recollection by reading his statement before giving evidence, he was unable to give evidence without being led in detail by the Crown through his statement.

Under cross-examination the effect of John Lee’s evidence in chief was seriously undermined. The applicant had never admitted to John Lee that he was involved in the shooting in any way. John Lee never believed from his conversations with the applicant that the applicant was implicated in the shooting. John Lee gave evidence that the course of the conversations was triggered by the reading of a newspaper which referred to the shooting. The fact that [AB] was referred to by the applicant and others as a “dog” did not advance the motive issue very far since other named persons were also referred to as a “dog” and John Lee was not told what [AB] was said to have informed the police about. The reference by the applicant to a “hottie” (stolen car) was of only limited relevance since both his brothers were actively involved in car re-birthing activities.

The effect of the conversations referred to by John Lee after cross-examination was that, if they occurred, they were of a far more general character than was alleged by the Crown. The effect of John Lee’s evidence was that the conversations were in the nature of loose talk amongst members of a criminal milieu. It would be inherently unsafe to draw specific incriminating inferences from this type of evidence, given its general nature and its source.

In oral submissions in the appeal, the applicant’s case was put somewhat differently.

The applicant submitted that insofar as what was written at the hospital was concerned, the jury was in no better position than this Court to assess it. Whereas the jury may have been in a position of advantage in relation to the evidence given by [AB] at trial, they did not have that advantage in relation to what was written in the hospital. The applicant submitted that it was likely that the defence case became somehow bound up with the credit of the main prosecution witness, [AB]. The jury may well have thought that if they disbelieved [AB] when he gave evidence about the assailants wearing balaclavas and accepted the truthfulness and reliability of the evidence from the two policemen, it followed that the identification of the applicant at the hospital must be correct. The applicant submitted that this reasoning was defective. What the jury needed to do if they rejected [AB]’s evidence at trial and accepted that of the police was to still critically analyse what happened in the hospital to see whether it was capable of establishing beyond reasonable doubt that he was the shooter. The applicant submitted that the evidence was not capable of doing so.

The applicant pointed out that there was another difficulty in relation to the Crown case. Normally one would be able to cross examine a witness such as [AB] in order to test how he was able to identify the shooter by reference to darkness, the discharge of the pistol and the position of the cars. This testing process could not be carried out because [AB]’s position at trial was that he did not see who the shooter was.

The Crown submitted that the jury had clearly rejected [AB]’s evidence about the assailants wearing balaclavas and that they were entitled to do so because there had been no mention of a balaclava to the police at the time of the shooting, nor had there been any mention of a balaclava at the hospital. The evidence concerning the assailant’s wearing balaclavas had only emerged after [AB]’s discharge from hospital and in the case of the other two witnesses, much later.

The Crown submitted that once that evidence was rejected, it was necessary to consider the evidence of what [AB] wrote in hospital. The Crown relied upon the fact that the very first response made by [AB] to the questions asked of him was to write “fairy”. The Crown submitted that this was a clear and unqualified identification of the applicant which the jury were entitled to accept. That identification was confirmed subsequently by the statement written in Detective Apolony’s notebook and signed by [AB]. The Crown submitted that there was ample time and opportunity available to [AB] to identify the shooter, given that the car in which the shooter was travelling had for a period of time driven behind [AB]’s car, then been level with it before the shots were fired. When one added to that the facts that [AB] knew the applicant well and would have been positioned no more than 2 metres from him when the cars were level, it was open to the jury to be satisfied beyond reasonable doubt that [AB] was able to identify the applicant.

The Crown submitted that on those issues the jury was in a better position than this Court because it saw [AB] give evidence and be cross-examined for a protracted period and was able to form an opinion as to his demeanour which was an advantage not available to this Court. This was of particular importance when the jury had to assess the reliability and honesty of [AB]’s “retraction” of what he had written in the hospital. Although the effect of demeanour was subtle, it should not be underestimated.

The Crown submitted that it was open to the jury to be satisfied that the applicant had a motive to kill [AB]. It was not in dispute that the applicant knew that [AB] was in a position to give evidence against him in relation to the death of Edward Lee. It was open to the jury to accept the evidence of John Lee that the applicant believed [AB] to be a “dog” and that the applicant seemed to have a particular interest in the shooting. The Crown submitted that this evidence was sufficient to allow the jury to draw an inference as to motive adverse to the applicant.

The Crown submitted that the crucial finding, which the jury was entitled to act upon, was whether they were satisfied beyond reasonable doubt that the applicant was the shooter. It did not matter who else was in the car and where they were seated. The Crown accepted that those matters may be relevant to reliability and credit but they did not directly impact on the fundamental question.

The Crown submitted that there were other indicia in what [AB] wrote in hospital which indicated that he was endeavouring to tell the truth at that time. The Crown referred specifically to the identification of the car in which the assailants were travelling as a maroon Pulsar. This evidence was verified when the car was subsequently found and linked to the incident. The Crown relied upon the diagram which showed that Monzer’s car was in front of his car, approximately 15 metres away. The Crown submitted that this diagram was likely to be correct as it was consistent with other evidence on that issue (Ex BB). The Crown also relied upon the internal consistency of what [AB] wrote at the hospital. The Crown submitted that the contradictory evidence concerning Basher was readily explainable in that [AB] wanted to exact his own retribution on that person.

The Crown submitted that because of [AB]’s familiarity with the applicant, it would not have required much time for him to recognise him. The Crown submitted that on the assumption that the shooter was not wearing a balaclava or some other facial covering, and that the shooter was the applicant, recognition of him by [AB] would have been almost immediate. The Crown submitted that such recognition could have taken place immediately before the shots were fired. The Crown submitted that due weight had to be given to the evidence of Detective Apolony that what was written by [AB] in hospital was “maybe funny” rather than “maybe Fairy”.

The Crown submitted that looked at as a whole, particularly the early exchanges between Officers Karras and Apolony on 24 November 2000, there is a clarity of thought in the responses of [AB] which is not consistent with the suggestion that his mind was clouded either by the residual effects of anaesthesia or by the dosage of morphine which he was receiving. The Crown relied upon the evidence of Professor Starmer to the effect that [AB]’s capacity to respond to “open” questions, i.e. non leading questions, was consistent with his mind being clear and not affected by medication.

The Crown submitted that the exchanges on 25 November between [AB] and the two police officers concerning witness protection also showed clarity of thought. This was particularly so in that [AB] was in effect making demands as a condition of providing information.

There is a major problem for the Crown arising from what happened and what was said when police first arrived at the scene of the shooting. As was obvious and not disputed, there was considerable initial confusion. The police were not sure what had happened and when they ascertained that [AB] had been shot, they were not sure who had done the shooting. They were clearly concerned that it may have been either or both Al Zahab and El Husseini. It was in this context that three of the attending police officers gave evidence of what they heard. The evidence is set out at [36] – [40] hereof.

The evidence of Constable Campbell was that he said to El Husseini “Where’s the gun? Who shot him? Who has a gun?” His recollection was that it was [AB] who responded by saying “Don’t fucking say shit, there was no fucking gun, you don’t know who fucking did it”. The Crown submitted that this exchange should be interpreted as a warning by [AB] to El Husseini not to say anything to the police. I find that interpretation somewhat strained. This is particularly so in circumstances when [AB] knew that he had been shot and was seriously hurt (he was lying on the ground covering the wound in his neck at the time) and he knew at this stage that, at the very least, his wife had been seriously hurt. If Constable Campbell’s evidence was the only evidence on the subject, it would be equally open to the interpretation suggested by the defence, i.e. that what [AB] said was directed at Constable Campbell and not at El Husseini and that [AB] was angry with the police for misinterpreting the situation and that he was rather bluntly trying to explain what had happened.

The latter interpretation is supported by the concession by Constable Campbell that the comments could have been directed to him and that the concluding sentence was “we don’t know who fucking did it”. Further support for that interpretation came from the evidence of Constable Callahan and Detective Inspector Hallinan. Both agreed that the concluding sentence was “We don’t know who fucking did it”. There was no doubt in Detective Inspector Hallinan’s mind that [AB]’s comments were directed to the police, not to El Husseini.

It may have been that [AB]’s distrust of the police was so deep seated that even in circumstances where he believed that he had been seriously wounded and was possibly in danger of death, he would still be unwilling to co-operate with them. It is equally open to infer from what he said that in such circumstances he was being truthful, i.e. they did not have a gun and they did not know who did the shooting. In that regard, it needs to be kept in mind that [AB] had co-operated with the police in the Edward Lee killing.

The important consideration is that [AB]’s first comment in relation to the matter was a denial of any knowledge of who the shooter was. This was at a time immediately following the incident when his recollection would have been at its best and before it had been affected by other extraneous influences.

In referring to the evidence, I have entirely disregarded that of [AB], Al Zahab and El Husseini at trial concerning [AB] mentioning the word “balaclava”, [AB] saying the Ashad and any attendance by a Muslim cleric. They were matters which depended upon the jury’s assessment of what those witnesses said at trial. That evidence was clearly rejected by the jury and they were entitled to do so.

The importance of the evidence of the attending police officers is that it did not depend upon the credit of [AB] and was consistent. The kicking out by [AB] towards Detective Inspector Hallinan was consistent with him being frustrated and angry at the interpretation of the attending police of what had happened being so completely wrong. It is difficult to see what other motivation there could have been. It also seems difficult to argue against the proposition that at the time [AB] must have realised he was seriously hurt.

The jury were in no better position than is this Court to interpret what [AB] said as recorded by the attending police officers.

An important part of the Crown case was that when asked by Detective Karras “Can you tell me who did this to you?”, without hesitation [AB] wrote in the notebook “fairy”. The Crown submission is that this response was made without qualification or prevarication and was an immediate and responsive answer to the question.

While that submission is certainly available, it does not exclude two scenarios which are also equally available. These are that [AB] was reconstructing what he thought might have happened or that he was simply not telling the truth and deliberately named an enemy.

In support of the first of those alternatives, i.e. that [AB] was making a genuine attempt to reconstruct events so as to identify the shooter, is that immediately following “fairy” are the words “Did you show them statements?” Given that this interview took place at approximately 1pm on 24 November 2000 and [AB] left the operating theatre at about 2.30am, he had approximately ten and a half hours within which to think about what had happened. This undermines the spontaneity of the response upon which the Crown placed such reliance. In further support of that alternative is the proximity in the notebook of what [AB] wrote in relation to the “statements”. It was accepted, of course, that the “statements” to which reference was made were the statements by [AB] to the police concerning the applicant’s responsibility for the death of Edward Lee.

The fact that [AB] queried whether the “statements” had been shown to the applicant and did so on the same page and immediately after the entry “fairy” is strongly suggestive that he had been thinking of a motive for “fairy” being involved in the shooting before the two police officers spoke to him. While such an approach is still consistent with [AB] having actually identified “fairy” as the shooter, it is also equally consistent with him trying to work out who in fact was the shooter by reference to who might have had a motive.

Since these words were written in a notebook, which was simply placed before the jury, and which the police officers verified as accurate, the jury were in no better position than this Court to determine the meaning and inferences to be drawn from those entries in the notebook. I can see no logical basis for how it was open to the jury to find beyond reasonable doubt that one interpretation was correct and that the other was not.

If anything, the third entry on that notebook page “Why did this happen?” is consistent with both interpretations since the response of Detective Karras is contrary to [AB]’s belief as to motive at that time. This is either because he actually recognised “fairy” or because this motive formed part of the process of reconstruction which led him to conclude that “fairy” was the shooter. The written response to the question about the car does not take the issue further.

The subsequent entry on Ex AK is difficult to place in time. It was written by [AB] on the same occasion as the earlier entries and on the same notebook but as Detective Karras pointed out (T.641.18) the process of putting questions to [AB] and him writing his responses was interrupted during the whole of the time by nursing staff providing treatment. That fact and the final written response “I want to sleep” gives rise to the issues raised by the evidence of Professor Starmer, i.e. not only that [AB] had been seriously injured but that he was emerging from the effects of a general anaesthetic and had received a high dosage of morphine. Not only does that impact on what interpretation should be given to what [AB] wrote but it impacts on the reliability of the whole exchange generally. In that regard, it should be kept in mind the third scenario is that [AB] may have been simply lying with a view to implicating the applicant.

The next exchange which took place at 2.35pm was quite different to the first. [AB] was not co-operative and his answer to at least one question was not particularly responsive. Was this the effect of medication? Had [AB] simply changed his mind? Did he change his mind because of what he was told by Detective Karras in the first interview? In any event, the content of this second exchange between [AB] and the detectives in hospital does not provide a strong basis for regarding [AB]’s responses as reliable.

That unco-operative approach continued in the third exchange at 3.22pm. Even at that early stage, [AB] was endeavouring to negotiate with the police, albeit unsuccessfully. Again, this exchange impacts adversely on the reliability of what [AB] wrote in hospital.

Ex AN is controversial. The Crown relies upon the evidence of the detectives that what [AB] wrote was “Maybe funny”. Of course their evidence on that issue is of no probative value. They did not hear [AB] say anything. All that happened was that they were present when he wrote a response to a question. This Court is in as good a position as the detectives and the jury to interpret what was written. The second word is scrawled. I found it equally consistent with being interpreted as “fairy” as “funny”. As already indicated, I find the answer “Maybe funny” to be completely unresponsive to the question asked. The answer “Maybe fairy” while also not completely responsive, certainly makes more sense than that suggested by the Crown. Importantly and persuasively, it is in line with the truculent attitude displayed by [AB] in the two earlier meetings at 2.35pm and 3.22pm.

The further response, spontaneously written by [AB] in the course of 3.38pm meeting, is difficult to understand. It is not clear what assistance [AB] was asking for, nor is it clear what assistance Monzer could give to the police. That, of course, assumes that during the course of this meeting [AB] was lucid and unaffected by medication.

There is no doubt that at the end of that meeting, [AB] signed a statement to the effect that “fairy” shot him and his wife the previous night. His change of mind and apparent co-operation with the detectives in contrast to his approach earlier in the day is unexplained. Moreover, there remains this issue. If, as clearly happened, the jury disbelieved what [AB] said in court and accepted the Crown’s interpretation of what he said at the crime scene, on what basis were they able to find beyond reasonable doubt that his identification of “fairy” as the shooter in hospital was truthful and reliable.

That problem is highlighted when consideration is given to the result of the discussion between [AB] and his brother, MB, which took place at 9.15pm that night. As a result of that discussion, MB produced to the two detectives the names of three persons whom he said were in the car. That, of course, contradicts what [AB] said in the first meeting about “fairy” being in front and not knowing who was in the back (and also by implication, who was the driver). It also is inconsistent with the circumstances of how the shooting occurred.

This highlights a further problem with what was written by [AB] in the hospital. Does one accept as truthful and reliable what [AB] wrote at 1pm or what he wrote at 9.15pm on 24 November 2000 and on what basis does one choose between what appear to be two incompatible statements. This is despite the fact that there is a consistency in the identification of the applicant. My difficulty is in identifying a logical basis available to the jury for preferring one part of [AB]’s evidence and rejecting all the rest.

There are a number of other difficulties which emerge when one looks at what [AB] wrote while in hospital. For example, the written responses to the questions asked of [AB] set out in Exs AU, AV and the early part of AW, are simply not responsive to the questions asked. In the first exchange, it is clear that [AB] was still convinced that the police had shown the statements which he had made concerning Edward Lee, to the applicant. In any event, [AB] in his responses on that day was essentially unco-operative and in Ex AX was attempting to negotiate a witness protection arrangement. The exchanges in those exhibits do not demonstrate a clarity of mind such as one would expect in somebody who was unaffected by medication. On the contrary, except towards the end of Ex AX, the answers written by [AB] to the questions asked were at best only marginally responsive. It is against that background that the second statement (Ex AZ) was written and signed.

The subsequent exchanges between the detectives and [AB] in hospital focused essentially on whether Basher was in the car and what part, if any, was played in the shooting by Marrickville Sam. A fair reading of the exchanges shows that [AB] was prepared to provide conflicting information as to the presence of Basher in the car, depending upon his particular whim at the time.

Taking into account the whole of the exchanges between Detectives Karras and Apolony and [AB] at the hospital, I am unable to be satisfied beyond reasonable doubt that what he said there is to be taken as reliable and honest as distinct from what the attending police officers recorded at the scene of the shooting when they attended. In reaching that conclusion, I accept that it was open to the jury to reject the evidence of [AB] at trial containing as it did so much additional detail which was not mentioned at the times and places one would have expected such matters to have been referred to.

The jury clearly accepted what [AB] wrote at the hospital as reliable. As indicated, I have difficulty in identifying a logical and acceptable basis to underpin that finding. What may well have happened, as the applicant submitted, was that the jury’s acceptance of this evidence was a product of the way in which the trial was run.

Detectives Karras and Apolony were cross-examined at length and it was submitted on behalf of the defence that their evidence was not honest and accurate and that they had suggested to [AB] that the applicant was the shooter. This challenge to their evidence was also clearly rejected by the jury. In doing so, however, the jury may well have thought that once the challenge to the detectives’ evidence was rejected, it followed that what [AB] had written in the hospital was reliable and truthful.

As a matter of logic that conclusion does not necessarily follow. What had to be done was to assess what [AB] wrote in the hospital on its merits and to determine quite separately from the police evidence whether it was truthful and reliable. In carrying out that process, the jury were in no better position than this Court. Their advantage of having seen and heard [AB] give evidence in the trial would not have assisted them in performing that function. On the contrary, the assessment they must have made of that evidence at trial was that [AB] was untruthful or unreliable or both.

For the reasons set out above, I have real doubts as to the reliability of what [AB] wrote in the hospital, in particular, his identification of the applicant as the shooter. Had the jury carried out the same critical analysis of that evidence they should have had the same doubt.

The evidence as to the applicant’s motive is thin. In that regard, the submissions of the applicant at [132] – [135] have considerable force. There was no evidence that the applicant was aware of the statement made by [AB] to the police. The evidence of John Lee went no further than to establish that [AB] (like some others who were named) was thought to be a police informer and that the subject of his wounding and his wife’s murder was actively discussed by persons within the criminal milieu, including the applicant after its occurrence.

There is another consideration which has to be taken into account. Even if one completely disregards (as the jury must have done) the defence case that the shooter and others in the car with him were wearing balaclavas, the circumstances of the shooting were such that there were otherwise inherent difficulties in [AB] being able to identify the shooter.

[AB]’s evidence of the events leading up to the shooting was not challenged by the Crown. On the evening of 23 November 2000, having returned home from a visit to the Lakemba Mosque with his friend, Al Zahab, he and his wife decided to take their son, go for a drive and have something to eat. They were joined by his friends, Al Zahab and El Husseini, who were driving ahead of them in another car. At a point in Kathleen Street, [AB] brought his car to a halt when a car behind flashed its lights. When [AB] failed to recognise the car, he commenced driving forward again. The other car then drew level and shots were fired when it was slightly in front of [AB]’s car.

The Crown submitted that it would have been possible for [AB] to identify the persons in the other car when it was positioned behind his car and when it drew level and drove past. There is no evidence to support that submission. On the contrary, to the extent that there is evidence, it is to the opposite effect.

The unchallenged evidence of [AB] was that having initially stopped when the lights flashed from the car behind, he commenced driving again because he did not recognise the car. Implicit in that evidence is that he did not recognise anyone in the car. That is not surprising given the time of night and the poor lighting which was prevalent in Kathleen Street at the time, as described by Mr Molina.

The jury had the advantage of participating in a view of Kathleen Street at night. We do not know what observations they made. Some idea of what they saw can be extracted from the following part of the trial judge’s summing up:

Accordingly, I do not accept that it would have been possible for [AB] to have identified anyone in the assailant’s car until it drew level with his car and even then, for the reasons given by his Honour, identification would have been very difficult.

The only two factors favouring an ability to identify the assailant was that [AB] did know the applicant and that the distance between him and the shooter at the time the shots were fired would have been approximately two metres. All the other factors are against identification being possible in the circumstances prevailing on that night. Even such identification assumes that before the shots were fired, [AB] must have turned and looked towards the front seat passenger in the other vehicle.

There are other matters which tend strongly against [AB]’s ability to identify the shooter. The muzzle flash (as shown in Ex 1) produced by the first shot would have had the effect of destroying [AB]’s night vision and preventing him from making any further useful observations.

The only evidence is that the shots were fired very quickly. Consistent with that evidence, it can be inferred that an assailant driving up alongside a target vehicle and firing into it, would do so as quickly as possible. Accordingly, the time available for any identification would have been very short and would only encompass the period up until the first shot was fired.

There is no evidence as to which of the fusillade of shots struck [AB]. From that point onwards it can be safely inferred that [AB]’s ability to make any identification must have been destroyed. The evidence of Mr Molina as to the speed of the cars, the rapidity of the shots and lighting conditions generally provides further support for the applicant’s submission that it was not open to the jury to find beyond reasonable doubt that in the circumstances of this shooting, [AB] was capable of identifying his assailant.

Even if that proposition were not accepted, what does seem clear is that in the circumstances prevailing on the night of 23 November 2000, it would not have been possible for [AB] to identify the persons in the car other than the shooter. That factor must place very considerable doubt on the reliability of what [AB] wrote in the hospital when on two occasions he purported to identify the other persons, apart from the shooter who were in the shooter’s car.

Even though the jury was entrusted with the primary responsibility of determining guilt or innocence in this matter, my analysis of the evidence has led me to conclude that it was not open for the jury to be satisfied beyond reasonable doubt that the applicant was the person who shot [AB] and the deceased. The evidence has left me with a reasonable doubt on that issue and that is a doubt which the jury should also have had. It is not a doubt which could have been resolved by the position of advantage of the jury in seeing and hearing the witnesses. In relation to the crucial evidence on which the identification of the applicant turned, i.e. what [AB] wrote in the hospital and what the police who attended the scene of the shooting saw and heard, this Court is in as good a position as the jury to make an assessment.

This ground of appeal has been made out.

In view of the applicant’s success on this ground which entitles him to an acquittal, there is no need to decide the other issues raised on the appeal which primarily concern the admissibility of evidence. I have reached the conclusion which I have on the basis that the evidence before the jury was properly admitted. Any success which the applicant may have enjoyed in relation to the other grounds would only confirm that result. In those circumstances, the proper order is for a verdict of acquittal to be entered.

The orders which I propose are as follows:

ADAMS J: I agree with Hoeben CJ at CL.

McCALLUM J: I agree with the orders proposed by the Chief Judge, for substantially the reasons his Honour has stated. I would respectfully not share his Honour's view that [AB] could not have identified the shooter. On my assessment of the evidence, it is possible that he had the opportunity to identify the applicant and to do so reliably. The critical problem for the Crown is the impossibility, in the circumstances, of excluding the reasonable possibility that he did not in fact identify the applicant but only nominated him as the person he believed must have been the shooter. On that issue, I would respectfully adopt the Chief Judge's careful analysis of the reasons the jury ought to have entertained a reasonable doubt as to the applicant's guilt.