Askarou v The King

1. [1]

   BEECH-JONES CJ at CL: The background to this appeal is set out in the comprehensive judgment of Weinstein J. Subject to what follows, I agree with his Honour in relation to grounds 1 and 2. The Crown case principally depended on the evidence of Mr Warda. Weinstein J has canvassed the relevant issues concerning the evidence of Mr Warda, all of which were ventilated before the jury. The defence called two alibi witnesses. Those witnesses were apparently credible although the Crown raised various matters that undermined their evidence. Neither their evidence nor the issues raised concerning Mr Warda’s evidence amount to “inconsistencies, discrepancies, or other inadequacy; or …. other evidence” as to lead to the conclusion that “the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]).

2. [2]

   My review of the record of the trial including the evidence of Mr Warda and the two alibi witnesses is capable of giving rise to a doubt about the guilt of the applicant. However, this is case where the “jury's advantage in seeing and hearing the evidence is capable of resolving [that] doubt” (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494). It follows that in this respect no miscarriage of justice occurred (M supra).

Ground 3: Transcription Error

1. [3]

   Ground 3 of the appeal contends that the trial miscarried because critical evidence which was audible but not transcribed and was not appreciated by the parties or by the trial judge resulted in the trial being conducted as though it had not been adduced.

2. [4]

   As noted, in his evidence in chief, Mr Warda gave evidence that, in the hours before the shooting, the applicant came to his house wearing a balaclava and made gestures with his fingers in the form of a gun, pointing in the direction of the victim’s house. Mr Warda also said that the applicant attended his house the following day. Mr Warda said that they were talking in his backyard and the applicant became “paranoid” about what Mr Warda had told the police.

3. [5]

   The transcript of the next part of his evidence reads as follows:

4. [6]

   While this appeal was pending, the Crown had cause to review the recording of this part of Mr Warda’s evidence. It was common ground on the appeal that the part of Mr Warda’s evidence that was not transcribed is the emphasised part of the following passage:

5. [7]

   I have listened to the tape of this portion of the evidence and agree that this accords with what Mr Warda stated. The additional part of the transcript records evidence of Mr Warda that, if accepted, amounts to a direct admission by the applicant that he shot Mr Kryo.

6. [8]

   Mr Warda was cross-examined on the following day of the trial about his evidence of this conversation:

7. [9]

   Earlier during cross-examination, in a non-responsive answer, Mr Warda stated that he asked the applicant “[h]ow did you do it?" and said that the applicant “told me very clearly how he did it and where he parked”.

8. [10]

   Otherwise, the cross-examination of Mr Warda involved a concerted attack on his credit. For example, it was suggested to him that he had “no regard for the truth and [that he] will lie through [his] teeth… to try and make [life] difficult for [the applicant]” and that his evidence was “not a conscientious and honest account of the events surrounding the shooting of Mr Kryo but a campaign to attack [the applicant]”.

9. [11]

   Not surprisingly, substantial parts of the final addresses focused on the credibility of Mr Warda. The Crown Prosecutor submitted that Mr Warda’s behaviour in ultimately going to the police and incriminating the applicant was the “behaviour of a decent person”. In relation to the evidence given by Mr Warda about the conversation set out at [5], it was submitted:

10. [12]

    This submission contends that the credibility of Mr Warda’s evidence of the conversation on the day after the shooting is enhanced by the fact that Mr Warda (apparently) did not assert that the applicant explicitly told him he shot Mr Kryo. According to this submission, if Mr Warda was motivated to implicate the applicant by concocting false evidence, he would have included a direct admission in his evidence. In the context of this trial the submission suffers from the obvious defect that Mr Warda did in fact assert that the applicant made a direct admission, although it was not recorded in the transcript which appears to have been the basis for this submission.

11. [13]

    In his address to the jury, the applicant’s counsel savaged Mr Warda’s credibility. Hence, he commenced that part of his address which concerned Mr Warda by announcing that “I’m going to take you through [Mr Warda’s] evidence and reveal him … to be the liar, the sort of liar whose evidence could never be relied on to found findings of guilty of serious criminal charges such as this”.

12. [14]

    In relation to that part of Mr Warda’s evidence which asserted that there were admissions by the applicant, counsel characterised the Crown Prosecutor’s principal contention as being that “[i]f [Mr Warda] really wanted to do a job on him [i.e. the applicant] he could have really laboured the point”. In response to that, counsel then contrasted the Crown Prosecutor’s opening about Mr Warda’s evidence with the evidence that was adduced from him, in an effort to show that the Crown Prosecutor’s submission was simply taking advantage of the fact that Mr Warda did not come up to proof in some respects. In reference to all of the conversations with the applicant recounted by Mr Warda, counsel submitted:

13. [15]

    Counsel then addressed in detail on each relevant aspect of Mr Warda’s evidence. In relation to the conversation between Mr Warda and the applicant the day after the shooting, counsel addressed by reference to the transcript. He did not refer to any evidence of Mr Warda said to contain a direct admission to the killing by the applicant.

14. [16]

    In that part of the trial judge’s summing up which summarised the Crown case, the trial judge noted that if “[t]he Crown argued that if indeed Mr Warda had intended to set up the accused, then he could have given a great deal more detail”, an argument that was said to extend the “events of the next day”, that is the day after the shooting.

15. [17]

    During their deliberations, the jury were provided with a transcript of the evidence of the witnesses, including Mr Warda. The transcript of Mr Warda did not include the non-transcribed evidence.

16. [18]

    At the hearing of this application affidavits from both of the counsel who appeared for the applicant at his trial were read. Their unchallenged evidence was that they did not hear Mr Warda give the evidence of an admission by the applicant that was not transcribed. The applicant’s solicitor, Ms Bannister, swore an affidavit annexing her note of Mr Warda’s evidence at the trial. She recorded Mr Warda as having stated that the applicant said he was “waiting for him and he was going to run and shoot him and he did so” which is not materially different to what Mr Warda actually stated. However, it was not contended that Ms Banister’s note was provided to counsel who appeared for the applicant at the trial.

17. [19]

    These affidavits are consistent with what is otherwise apparent from the transcript namely that all counsel at the trial worked from the transcript including when framing their respective addresses. Those addresses proceeded on the premise that Mr Warda did not give evidence of any direct admission by the applicant to shooting Mr Kryo, even though he did give such evidence.

18. [20]

    I do not accept that, of itself, the incorrect transcription of the evidence of a witness in a criminal trial constitutes an error or irregularity in the trial or otherwise constitutes a miscarriage of justice. However, when taken with the circumstances of the trial it could nevertheless be productive of a miscarriage of justice in that the ultimate question is not whether there was some error but whether “something occurred or did not occur” at the trial that resulted in such a miscarriage (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [30]‑[31] per Gaudron J).

19. [21]

    Part of the applicant’s submissions appeared to contend that the trial was rendered unfair simply because counsel did not address on the actual evidence given by Mr Warda as opposed to what the transcript recorded. I am doubtful of that contention. Its resolution might require a deeper inquiry into whether, given that counsel was present when the evidence was given and Ms Bannister recorded the accurate evidence, the applicant was truly denied a reasonable opportunity to address the evidence and put his case. In any event, the Crown’s emphatic response to that contention was to emphasise the fulsome attack that was made on the credit of Mr Warda by the applicant’s counsel such that the jury could not have any misunderstanding that each and every incriminating aspect of his evidence was in contest. Thus, it was contended that if the jury considered that it was reasonably possible that Mr Warda concocted any of the incriminating statements he attributed to the applicant that was recorded in the transcript, then it was inevitable that the jury would reject an incriminating statement that was not so recorded.

20. [22]

    However, in his oral submissions Senior Counsel for the applicant, Mr Game SC, focussed on the competing submissions of the Crown Prosecutor and the applicant’s counsel concerning Mr Warda’s credit, as set out above. As noted, the Crown Prosecutor contended that the veracity of Mr Warda’s evidence of the applicant’s admissions was enhanced because he did not purport to attribute any direction admission to the applicant. Hence, it was submitted that Mr Warda did not say "I met up with him the next day and he said, 'I shot him. I thought I'd killed him, but apparently he's alive". There is no reason to doubt that this submission was made in good faith based on the transcript. However, that was not Mr Warda’s evidence at the trial. Mr Warda did say that the applicant said, “I shot him”. The applicant’s counsel addressed the jury based on the same mistaken premise. As a result the jury were misled about a potentially crucial admission by the combination of the Crown’s address, the defence address and the provision to them of an incorrect transcript. The jury were invited to assess the credibility of Mr Warda on a false basis.

21. [23]

    The Crown submitted that the effect of the cross-examination set out at [8] to [9] above was to extract from Mr Warda’s evidence that the applicant did admit to the shooting. In effect it was contended that the cross-examination remedied the failure to transcribe the evidence noted in [6]. However, the evidence given by Mr Warda in cross-examination was explicable on the basis that his answers reflect Mr Warda’s surmise as to the effect of what the applicant said, rather than a direct admission that the applicant shot Mr Kryo. Ordinarily, such distinctions would not matter but in this case the Crown Prosecutor’s address made them matter. The Crown Prosecutor’s address treated Mr Warda’s evidence as not attributing any direct admission to the applicant and sought to rely on that as a matter enhancing Mr Warda’s credit. The applicant’s counsel treated Mr Warda’s evidence in the same way. As noted, his evidence was to the contrary.

22. [24]

    The Crown’s submissions in relation to ground 1 contended that it is reasonable to conclude that the non-transcribed evidence “was heard by one or more members [of] the jury”. This can be accepted. However, implicit in that submission is the reasonable likelihood that one or more members of the jury did not hear the evidence (in the same way that counsel did not). Those jurors were invited to address Mr Warda’s credit on the false basis that his credibility was enhanced because he did not purport to attribute a direct admission to the applicant when he did so. For those jurors who did hear that evidence and attributed significance to it then it means they could justifiably have been confused by reason of the submissions that were made and the transcript that was provided.

23. [25]

    While analogous mistakes undoubtedly occur in criminal trials, it follows from the analysis in relation to ground 1, that an assessment of Mr Warda’s credit was crucial to an assessment of the Crown case. The events that transpired at the trial caused the jury to be misled about a matter that the Crown contended was significant to an assessment of Mr Warda’s credit. Given the significance of an assessment of Mr Warda’s credit to the Crown case, the misleading of the jury in this respect was prejudicial in the sense that there was a “real chance” that it affected the jury’s verdict (Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J) or “realistically [could] have affected the verdict of guilt” (at [123] per Gageler J) or had “the capacity for practical injustice” or was “capable of affecting the result of the trial” (Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ).

24. [26]

    I would grant leave to raise ground 3 and uphold the ground.

25. [27]

    Section 6(2) of the Criminal Appeal Act 1912 (NSW) provides that “[s]ubject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered". One of the “special provisions” to which s 6(1) refers is s 8(1). This section provides:

26. [28]

    A retrial can only be exercised if the evidence presented at trial was sufficiently cogent to justify a conviction (Gilham v R [2012] NSWCCA 131 at [648]). Otherwise, unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]).

27. [29]

    The applicant contended that, in the event that ground 1 failed but either of grounds 2 or 3 succeeded, a retrial should not be ordered because the Crown case was relatively weak depending as it did on the evidence of Mr Warda who was “demonstrated to be unreliable” (citing R v Anderson (1991) 53 A Crim R 421 at 450). This submission fails because it has not been demonstrated that Mr Warda is unreliable. It is appropriately a matter for a jury whether to accept his evidence or not.

28. [30]

    Lastly, I note that it was also asserted that “the trial miscarried because of errors in the large part from the conduct of the Crown including inappropriate and unfair attempts to persuade the jury to draw inferences of fact that were not properly open given the conduct of the case”. As I have explained, ground 3 arose from a transcription error in circumstances where all counsel were working from was the transcript. Ground 2 attempted to raise an allegation about the possible misconduct of the Crown Prosecutor, however, the Crown Prosecutor’s submission rose no higher than contending that a witness’s evidence should be “jettisoned”. There was no demonstrated misconduct by the Crown Prosecutor.

29. [31]

    I propose that a retrial be ordered.

Proposed Orders

1. [32]

   I propose the following orders:

   1. (1)

      The Applicant be granted leave to appeal against his conviction;

   2. (2)

      The Appeal be allowed;

   3. (3)

      The Applicant’s conviction be set aside and a new trial be ordered; and

   4. (4)

      List the matter in the Arraignments List in the District Court at Parramatta on 27 October 2023 at 9.30am.

2. [33]

   CAVANAGH J: I have had the advantage of reviewing the draft judgments of both Beech-Jones CJ at CL and Weinstein J.

3. [34]

   I have carried out my own independent assessment of the record of the trial. Whilst there are matters arising in the evidence which may have given rise to doubt on the part of the jury, I am not satisfied that the jury ought to have had a doubt: Pell v The Queen (2022) 268 CLR 123; [2022] HCA 12 at [39]. The jury was charged with assessing the evidence and considering what parts of the conflicting evidence they should accept or reject. The evidence of Mr Warda was critical and it was open to the jury to accept or reject his evidence or parts of his evidence.

4. [35]

   In a case such as this, the jury’s advantage in seeing and hearing the evidence of the witnesses and the issues arising as a result of the differing evidence should not be overlooked. I am satisfied that the verdict was open to the jury. I would dismiss ground 1.

5. [36]

   I also agree with Weinstein J in respect of ground 2.

6. [37]

   In respect of ground 3, the point raised by the applicant is that the credibility of Mr Warda must be viewed as critical to the outcome of the trial. The omission in the transcript, although limited, was significant because of the emphasis placed by the Crown Prosecutor on what was believed to be the absence of any statement by Mr Warda that the applicant had told him that he had shot Mr Kryo. The Crown Prosecutor used what he thought to be the absence of this statement to bolster the credit of Mr Warda, highlighting that if Mr Warda wanted to set up the applicant, he could have provided more false details, including “that he told me that he had shot [Mr Kryo]”.

7. [38]

   The Crown Prosecutor highlighted that Mr Warda did not say this, when it is apparent from the recording that Mr Warda did, in fact, suggest that the applicant had used these words.

8. [39]

   In the summing-up, the trial Judge reminded the jury what the Crown Prosecutor had said about the absence of any statement from Mr Warda about this.

9. [40]

   In my view, the jury’s assessment of the credit of Mr Warda must have been critical to the outcome and the inadvertent misleading of the jury on a matter affecting his credit had the capacity to affect the outcome or lead to practical injustice (Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ).

10. [41]

    For the reasons set out more fully by Beech Jones CJ at CL, a new trial should be ordered.

11. [42]

    WEINSTEIN J: On 23 July 2019, the applicant Naramsin Askarou was arraigned before Bourke SC DCJ and a jury in the District Court at Parramatta on an indictment that charged that Mr Askarou on 28 July 2016 did shoot with intent to murder (count 1), and in the alternative, discharged a firearm with intent to cause grievous bodily harm (count 2). Mr Askarou pleaded not guilty to both counts. On 21 August 2019, the jury returned a guilty verdict to count 1 for which he was convicted and sentenced. The applicant now appeals that conviction.

12. [43]

    The applicant relies on three grounds of appeal:-

    1. (1)

       The verdict is unreasonable and cannot be supported having regard to the evidence;

    2. (2)

       The trial miscarried by reason of the Crown Prosecutor’s closing address; and

    3. (3)

       The trial miscarried on account of critical evidence which was audible but not transcribed and not appreciated by the parties or by the trial judge which resulted in the trial being conducted as if it had not been adduced.

13. [44]

    The applicant requires leave to appeal on all grounds pursuant to s 5(1) of the Criminal Appeal Act 1912, as each ground raises questions of mixed law and fact. With respect to ground 2, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 is also arguably engaged, as no complaint or objection about the Crown Prosecutor’s closing address was taken by the applicant’s counsel at trial. For the following reasons, I would grant leave to appeal and dismiss grounds 1 and 2. I agree with the reasons of Beech-Jones CJ at CL that ground 3 should be upheld, and with the orders proposed by his Honour.

Brief Overview of the Trial

1. [45]

   The trial commenced on 23 July 2019 and lasted for 19 days, concluding on 16 August 2019.

2. [46]

   The brief uncontested facts of the matter are as follows. At about 10:20 pm on 28 July 2016, the victim arrived at his home at Nugent Place, Prairiewood in his car. As he approached the front door minutes later, the victim observed a person approach him who shot at him three times before running away. That person was dressed in dark clothing and had his head covered. Only his eyes were visible. The victim was struck by one bullet which punctured his lung and severed his spinal cord rendering him a paraplegic. The victim’s mother was in the garage and heard the shots. She ran out to him. The victim rang 000 from his mobile phone. He was taken to hospital where he remained for some months, the first three weeks of which he was in a coma. The victim could not initially identify the shooter. On 1 September 2016 he identified the applicant as the shooter.

3. [47]

   At trial, it was the Crown case that the applicant was the person wearing dark clothing with his face covered who shot the victim. It was the Crown case that he then ran to a getaway car parked on a nearby street. The Crown case was that the applicant had a motive to commit the offence, arising from a historical grievance between him and the victim.

4. [48]

   The Crown case relied primarily on the following evidence:-

   1. (1)

      The evidence of Labib Warda of various admissions made by the applicant on the day of and the day after the shooting;

   2. (2)

      The motive of the applicant;

   3. (3)

      Evidence from the victim that the shooter had physical attributes consistent with the applicant; and

   4. (4)

      Evidence of the applicant’s whereabouts on the evening of the shooting.

5. [49]

   The sole issue in the trial was whether or not the applicant was the person who shot the victim.

6. [50]

   The defence case relied on:-

   1. (1)

      Two alibi witnesses;

   2. (2)

      Inconsistencies between Crown witnesses concerning the victim’s movements before he was shot;

   3. (3)

      The victim’s association with feuding local drug gangs, and two persons in particular, as a possible explanation for the shooting; and

   4. (4)

      Evidence from Mr Audisho that Mr Warda had told him in 2018 that he intended to “set up” Mr Askarou because of a drug debt that Mr Warda owed him.

7. [51]

   The defence led evidence of the applicant’s good character in a particular respect about which the trial judge gave a direction, and which neither the applicant nor the Crown cavil with on appeal.

Ground 1: Unreasonable verdict

1. [52]

   Ground 1 requires this court to conduct a review of the evidence led at trial. I have conducted an independent review of all of the evidence at trial.

2. [53]

   In evidence in chief, the victim Mr Zio Kryo said that he knew the applicant from school. They were friends up until about 2012. On 28 July 2016, the applicant was living on Nugent Place in Prairiewood. He had lived there for about 12 years. The applicant had been to his home on many occasions.

3. [54]

   In February 2012, the applicant's home was robbed. The only item that was stolen was the applicant’s safe. On the day of the robbery, the applicant asked the victim if he had robbed his house. Mr Kryo denied doing so. After this conversation the two drifted apart, but on many occasions thereafter, the applicant asked the victim if he had been involved in the robbery of his house.

4. [55]

   During the winter of 2014, the applicant came to the victim’s home. He said words to the effect of “You ripped me off. You broke into my house and you stole it.” He demanded $20,000 from the victim. The applicant said “Look I know you ripped me off. Give me $20,000 or I’ll fucking kill you”. The victim told him to “fuck off”. At that time, the applicant's mother was standing behind the door listening to the conversation. She said to the applicant “What did you say? If anything happens to my son I'll know it's you.” The applicant said “Oh I'm sorry. I didn’t mean to say that. I was just angry.”

5. [56]

   In July 2016, the victim was working as a machine operator excavator. He was driving a black Toyota Hilux Ute. He said that he returned home from work at about 5 or 5:30 pm. He showered, ate and then went to Andy Andrews’ house in Bonnyrigg at about 6 pm. They worked on his car together to install new headlights. At about 9:45 pm, Mr Kryo said that he drove home arriving at about 10 pm. He reversed his car into the driveway. He let the engine run while he collected his belongings. He turned the engine off and got out of the car. He locked the car and started walking to the front door to his house. As soon as he approached the front door of the house to unlock it, he said that the applicant ran out of his front yard and shot him.

6. [57]

   Mr Kryo said that he in fact saw two people. The first was his neighbour, Roni Audisho, who lived next door in the same duplex. As soon as Mr Kryo started walking towards the front door, Mr Audisho left his house and walked in the direction of his friend Labib Warda’s house, which was just down the street. Mr Kryo said that Roni’s appearance was a “set up”, i.e. a signal to the applicant that he was home. Mr Kryo next saw a person who was wearing black clothing and had something covering his head. Only his eyes were visible. He was of short medium build, or about 6 feet tall, and was holding a gun. He started shooting from about four metres away. Mr Kryo said that the shooter was of a build and height consistent with the applicant. Three shots were fired. One of the bullets struck Mr Kryo, who immediately fell to the ground. The shooter turned around and ran. Mr Kryo’s mother came out of the house. The victim rang 000 to call an ambulance. He was in a coma for three weeks.

7. [58]

   Mr Kryo was in hospital for a long time and spoke to police on several occasions, which he could not recall as he was taking a lot of medication. He made his first statement to police on 22 September 2016.

8. [59]

   At the time of the shooting, Mr Kryo had a very casual relationship with Mr Warda, although they had been friends when they were younger. Mr Warda was the applicant’s best friend at the time of the shooting. In January 2018, Mr Warda made contact with a police officer, after which the applicant was charged with the shooting of Mr Kryo.

9. [60]

   Mr Kryo was cross-examined extensively by Mr Hughes, who appeared for the applicant with Mr Karim, in particular about the events that took place after his return home from work on 28 July 2016. Mr Kryo said that he stopped at his uncle Youseff Ibrahim’s house briefly on the way to Mr Andrews’ house. He said that his uncle arrived at Mr Andrews’ home shortly thereafter. At about 9.45 pm, he said that he left Mr Andrews’ house but did not go home right away. He scrolled through Facebook and had a cigarette. It was put to him that on 17 August 2016, he had told a police officer that prior to returning home on the night of the shooting he purchased cigarettes from a corner store, and then drove to Mr Andrews’ home, where he stayed for about half an hour before returning home. It was suggested that this was a different version than that which he had given in court. It was suggested to him that police had obtained CCTV footage which recorded that his car returned to his house at about 10 pm, after which he left and returned about 10:20 pm. Mr Kryo denied that this occurred.

10. [61]

    In the defence case, a document was tendered as exhibit “F”, which it was agreed recorded police observations about CCTV footage taken close to the victim’s home on the night of the shooting. It was agreed that the footage was corrupted and could not be shown to the jury. That document recorded the following:-

11. [62]

    Mr Kryo denied that he stayed at Mr Andrews’ home until about 8 pm and then left to go back to his uncle's home. He said that he did not recall leaving Mr Andrews’ house and coming home. He denied that he came home at 8 pm and denied that his mother then insisted that he go out and buy her cigarettes. He insisted that he was at Andy Andrews’ house from about 6 pm until he left at 9 pm, and that he never left his house. He denied arriving back home at about 10 pm, leaving shortly thereafter and returning there at about 10:20 pm.

12. [63]

    With the benefit of a s 128 certificate, Mr Kryo was extensively cross-examined about running drugs for a criminal gang. He said that he had stopped this activity at the time of his arrest. His Honour made an order pursuant to s 8 of the Courts Suppression and Non-publication Orders Act 2010 that the court be closed for the duration of the cross-examination on this topic.

13. [64]

    Mr Kryo denied that any person associated with a criminal gang was responsible for the shooting. He agreed that he was selling cannabis in or about 2012. He agreed that he gave evidence at the NSW Crime Commission with respect to a Greenfield Park shooting in January 2012. He agreed that he lied to the Crime Commission but said that he lied because he feared for his safety. He agreed that he was charged with offences of knowingly giving false or misleading evidence at the Crime Commission, and that he was charged with five counts of supply prohibited drugs in January 2014. It was suggested that there were two persons in particular who had a vendetta against him who might be responsible for the shooting, which Mr Kryo adamantly rejected.

14. [65]

    Mr Kryo agreed that he first told police that he was unable to nominate any person who would want to cause him harm. He also agreed that he first told police at the hospital that the person who had shot him was wearing all black clothing and only their eyes were visible.

15. [66]

    Mr Kryo said that at the time of the shooting, he got out of his car, locked it and started walking from his car to his front door. As soon as he started walking to the door, Roni Audisho came out of his house and started walking in the direction of Mr Warda’s house. He disagreed that there was about one or two seconds between the time that he first saw Mr Audisho leave his house and when he reached his front door, which was a distance of about one and a half metres. He said that he was shot just as he started to unlock the flyscreen door, and that it would have been about three or four seconds after he saw Mr Audisho. He saw the shooter about a metre from where he first saw Roni, next to a tyre in his front yard. After he was shot, he heard the shooter run. He could not account for Roni's movements after the first time he saw him. He believed that Roni was rushing. Mr Kryo said:-

16. [67]

    Mr Kryo agreed that in March 2017, he was advised by police that there was not enough evidence to charge Mr Askarou. He insisted that Mr Askarou had threatened him in 2014.

17. [68]

    The victim’s mother, Mrs Jinan Kryo gave evidence through an interpreter. She said that her son returned home after work at about 5 pm. After a rest, he went to Mr Andrews’ house. He returned home and took some stuff from the garage and went out to his friend’s house again. She said that he returned at the time when he was shot at about 10 pm. She was sitting in the garage with her computer at the time and she heard the sound of the engine when her son arrived. When the engine stopped, he got out of the car and she heard Mr Audisho say “Hi”. She heard her son answer him and Mr Audisho then left. In a few seconds, she heard three gunshots. She went to her son straight away from the garage. He had called 000 but fainted afterwards. She then saw Roni coming with his father. Roni picked up the victim’s mobile and dialled 000 from his own mobile. Ambulances and paramedics then arrived.

18. [69]

    As to the applicant, Mrs Kryo said that he was her son’s friend. The last time she saw him was in 2014 when he came to their house. He came and said, “I want to talk to your son”, and she overheard their conversation behind a door to the room where they were talking. She did not hear the beginning of the conversation but she heard Mr Askarou say, “if you don't bring the money I will kill you”. She was very upset and angry, so she opened the door straight away and said to him “you are threatening my son I will call the police”. Mr Askarou said that he was sorry and that he had said it because he was upset.

19. [70]

    In cross-examination, Mrs Kryo agreed that she had made a statement on 1 August 2016. In that statement, she said that her son came home at 4 pm, that he ate some food and that he then spoke to his uncle on his mobile phone. She said that he had told his uncle that he would take the lights to Andy Andrew's home and that he would fix them. She did not agree that she had a cigarette with her son in the backyard after that conversation. She agreed that she told the police that at about 8 pm, her son had taken the headlights from the garage and that he went out at about this time. She did not agree that she had told police that when he came home at 8 pm, he said that he had been to the petrol station and that they had a conversation about buying cigarettes. She agreed that her son got home at about 10 pm and that she heard his car door close. She heard the keys rattling and the front fly screen door about to be unlocked when suddenly she heard three gunshots. Mrs Kryo said that it was very quiet, but she heard her son say “Hi” to Roni, and she heard Roni’s footsteps moving away before the shots. She agreed that she turned on the light at the front door (because it was off) before seeing her son on the ground. She denied that her son said to her that “it's dark I couldn't see anyone”. She denied that she suggested to police that Mr Audisho and Mr Warda might have been involved in the shooting. She said that the last time she saw the applicant was in 2014, but she occasionally saw him outside in the street with Mr Audisho.

20. [71]

    In further cross-examination, Mrs Kryo agreed that in her statement of 1 August 2016, she had told police that her son had come home at about 8 pm and that he reverse parked his Ute. She could not remember telling police that her son said that he was at the petrol station and had to pump air into his tyres. She could not remember him saying that he would have a shower and then go buy cigarettes. It was suggested to her that she had changed her original version of events, which she denied.

21. [72]

    In re-examination it was established that on 3 August 2016, Mrs Kryo had told police about the conversation in 2014 when the applicant had threatened her son.

22. [73]

    Mr Warda’s evidence was the most significant evidence given at the trial.

23. [74]

    In examination in chief, Mr Warda said that he had known Mr Kryo since they were about 10 or 11 years of age. They used to play soccer together and they became neighbours years later when they were in high school. At the time of the shooting, Mr Warda lived seven houses away in the same complex on Nugent Place. Mr Kryo had also been friends with Mr Askarou.

24. [75]

    About seven years prior to the trial, Mr Warda became aware of a robbery concerning Mr Askarou. Mr Askarou became suspicious that Mr Kryo was involved in that robbery. He said that he had between 50 to 100 conversations about this robbery with the applicant. In the first conversation that he had with Mr Askarou, he talked about why he had suspicions that Mr Kryo robbed his house. Then there were conversations where he told Mr Warda about how he wanted to get Mr Kryo back for the pain that he had put him through, and he would seek Mr Warda’s opinion as to what he should do and what he should not do. For example, he did not know whether or not he wanted to shoot Mr Kryo, or if he wanted to hit or torture him. A conversation occurred about a year before the shooting when the applicant told Mr Warda that he was going to shoot the victim. Mr Warda recalled Mr Askarou saying, “I wanted to get Zio back by shooting him or stabbing him or hiding behind the mailbox”. Mr Warda said that he recalled Mr Askarou saying that he wanted to use some sort of special revolver. Mr Warda told him not to take things to such extremes, that it was not worth it, and that a simple beating would be ok. He recalled telling Mr Askarou that trying to kill or shoot Mr Kryo was not right.

25. [76]

    At about the time of the shooting, Mr Warda would see Mr Askarou almost every day because they were very close friends. He was not very close with Mr Kryo. On the day before the shooting, Mr Askarou gave Mr Warda a lift home in his gold-brown Toyota Corolla hatchback. Mr Warda left his keys in the applicant’s car, which he did not realise until the next day.

26. [77]

    On the day of the shooting, Mr Warda called the applicant and asked him to bring the keys over to him. Sometime between 7 and 9 pm, Mr Askarou went to Mr Warda’s house and Mr Warda met him outside. He could not recall whether he had been sent a message to meet the applicant outside his house, or whether there was a knock on the door. Mr Warda did not see Mr Askarou in his car, but Mr Askarou was on the front porch of his house and standing next to him as he returned the house keys. The applicant was wearing Adidas tracksuit pants, with a hoodie and dark clothes. Mr Warda thought that Mr Askarou had a beanie on his head but Mr Askarou told him that it was a balaclava. He then made gun gestures with his hands pointing to Mr Kryo’s house. As Mr Warda left, he heard the applicant close a door, which he assumed was a car door.

27. [78]

    Just before the shooting that night, Mr Audisho visited Mr Warda. He said that at about 10:20 pm, he received a call from Mr Audisho who asked him to come outside for a cigarette. He agreed that his phone number ended in 9692. He assumed that Mr Audisho was at his house on Nugent Place when they were in telephone contact. Mr Warda could not recall how long after the applicant had visited that Mr Audisho had come over, although he estimated that it was an hour or an hour and a half after the applicant’s visit. Mr Warda said that Roni came to his place, and as soon as he opened the door to the front porch, he heard gunshots and Roni ran back outside. He heard three shots. Roni said, “I think that was gunshots”. Mr Warda told Roni that he did not think it was gunshots. Roni ran off immediately. Mr Warda left his house a couple of minutes later, and as he was walking in the direction of where the gunshots had come from, he heard screams from Mr Kryo’s mother.

28. [79]

    Mr Warda went to the scene of the shooting and saw Mr Kryo on Roni’s lap. Roni was trying to keep him awake. Mr Kryo’s mother was on the ground crying. Neighbours, the police and an ambulance came to the scene. Police established a crime scene and took statements. Mr Warda gave a statement about a couple of hours after the event, after he had returned to his house with Mr Audisho.

29. [80]

    Mr Warda saw the applicant the next day. He believed that Mr Askarou came past his place between 4 and 5 pm. Mr Askarou drove to his house in a different car, an older 4-wheel drive. Mr Askarou came to Mr Warda’s house and walked into his backyard. He asked Mr Warda what had happened, what Mr Warda had seen and whether or not Mr Warda had made a statement. Mr Warda told Mr Askarou that he had made a statement. Mr Askarou appeared paranoid. They left their mobile phones inside and they talked outdoors. They had many conversations after this. The applicant appeared very paranoid that detectives were onto him. He believed that he was being followed and that the detectives knew that he was the shooter.

30. [81]

    Mr Warda said that on the day after the shooting, he asked Mr Askarou what had happened. He said that Mr Askarou said something “about hiding the money in the mailbox or the hill, behind the car, waiting for the victim to come up and then he was going to run and shoot him... then he did it sir.” The italicised potion of this passage is the passage that was described as “(not transcribable)” in the transcript. I have listened to the recording of the evidence, and I too am confident that the words that were not transcribed are those that are set out in para [6] of the judgment of Beech-Jones CJ at CL.

31. [82]

    Mr Warda said that Mr Askarou told him that his cousin was driving his car the night before and that they had parked down the road from the complex next to the “T-way”, which is a road for buses and which cars are not permitted to use. Mr Askarou’s exact words were that he parked next to a place that they used to call the “rock spot”. This was a place where they used to hang out when they were younger in high school before anyone had a driver’s licence. It was called the “rock spot” because there was a little creek and they used to sit on the rocks. This spot was marked on exhibit “2”.

32. [83]

    Mr Warda said that he remained friends with Mr Askarou after the shooting.

33. [84]

    Mr Warda was cross-examined at great length by trial Counsel for the applicant. He was reminded by Mr Hughes of the evidence that he gave at a committal hearing in September 2018. Mr Warda agreed that he gave evidence at the committal that the walk from Mr Kryo’s house to his would take about 30 seconds. He agreed that the distance was about 95 metres. He said that the rock spot was probably a couple of hundred metres away from his house.

34. [85]

    Mr Warda agreed with Mr Hughes that he had not given a truthful version of events to police on the night of the shooting. Mr Warda agreed that the version of events he was giving in the trial was that on the night of the shooting, Mr Askarou was trying to communicate to him that it was his intention to shoot Mr Kryo. Mr Warda said that he had not reported that threat to police earlier because if he had done so, he would have been in the same position that Mr Kryo was in, i.e. he was afraid of retribution. He said that he did not know that he could make an anonymous tip to the police.

35. [86]

    Mr Warda said that his previous conversations with Mr Askarou (prior to July 2016) had always indicated to him that Mr Askarou was going to do something to Mr Kryo, but it took four or five years to do so. Mr Warda said that he did not think that the applicant was going to shoot the victim until he heard the gunshots.

36. [87]

    Mr Warda agreed that he had told police that he had received telephone calls from Mr Audisho at 10:20 pm and then at 10:22 pm. He said that the second call would have been Mr Audisho telling him that he was outside the door. When he opened the door, Roni was already on his porch. He opened the door because he believed that Roni would be at the porch already. Mr Warda said that he could not remember whether or not he stepped outside because it happened so quickly. He agreed that he told police on the night that he had stepped outside.

37. [88]

    Mr Warda said that his conversation with Roni was very short, perhaps 30 seconds, before they heard the gunshots. He could not give an exact time because he could not recall how many seconds it was, but he recalled that it was seconds and not minutes. After they heard gunshots and Mr Audisho ran off, Mr Warda tried to call out to Mr Audisho because he noticed that his keys were still outside on his table. Mr Warda said that he went back inside for a couple of minutes, got changed and then went to Mr Kryo’s place. Mr Warda said that he believed that he tried to call Roni again because he did not really want to go to the crime scene.

38. [89]

    Mr Warda could not remember what he had been doing when he received the call from Roni before he arrived at his house in the moments before the shooting. He had no recollection if Roni was puffing when he arrived at his house, as if he had been running.

39. [90]

    Mr Warda recalled receiving a media release left at his house by a police officer on 27 October 2016. He could not recall if he had read it. That media release became exhibit “C” and states the following:

40. [91]

    Mr Warda agreed that at the committal hearing he said that on the night of the shooting, Mr Askarou had jumped into a car that he had seen towards the left of his place at the driveway. In his evidence at the trial, he insisted that it was not something he saw but was rather something he heard. He also agreed that the first account that he had given of the clothing Mr Askarou was wearing was when he gave an account to police on 9 January 2018, 18 months after the event. He recalled that he was wearing Adidas tracksuit pants.

41. [92]

    In his evidence at the committal, he was asked questions about being out with Mr Askarou a couple of days before the shooting and why his keys were left in his car. Mr Warda said that he could not remember the precise time he had been in Mr Askarou’s car, but it was sometime that afternoon after going to grab something to eat. He was pretty sure that it was after lunch, at about 3 or 4 pm. He could not recall where they had eaten or what they had eaten.

42. [93]

    Mr Warda conceded that the first time he had ever given any evidence implicating Mr Askarou in the shooting was in January 2018. That was the first time, for example, that he had mentioned where the getaway car was parked. However it was during the trial when Mr Warda said that the getaway car was driven by Mr Askarou’s cousin. He agreed that he had never told police that Mr Askarou’s cousin was driving, but he denied that he had made it up during his evidence. He said that he did not remember that fact at the committal hearing. He told Mr Hughes that the applicant told him the name of his cousin the day after the shooting. During cross-examination, Mr Warda said that Mr Askarou’s cousin's name was “Matthew”, but he could not recall his surname.

43. [94]

    Mr Warda accepted that in 2017, he had a rifle and pistol hidden under his bed. On 10 January 2018, he signed a statement referring to that pistol and a rifle being hidden under his bed in 2017. In that statement, he also said that “Nara (the applicant) asked me to go see his cousin Simon Askarou and pick up something from it and store it at my house”. Mr Warda also said that in February 2017, the applicant had asked him to see his cousin Simon and pick up something from him and store it at his house. He conceded that the cousin's name was not Simon, but “Matthew”. Mr Warda said that Mr Askarou told him to meet up with his cousin, pick up the rifle and keep it at his place until Mr Askarou sold it, which was the extent of that conversation. He was sent an address but Mr Warda could not recall where he went. Mr Warda said that he brought the gun back to his house and put it under his bed straight away until New Year's Eve 2017/2018, and that he never touched the gun again.

44. [95]

    Mr Hughes suggested that nowhere in his evidence given at the committal did he ever say that he had been told by Mr Askarou that it was his cousin who was the driver on the night of the shooting. Mr Warda said that he must have been confused at the committal. He agreed that he first mentioned the name “Matthew” at trial during his evidence. Mr Warda made a statement on 3 September 2018. He agreed that there was nothing about “Matthew” in that statement.

45. [96]

    Mr Warda conceded that he took a photograph of the gun that was under his bed and said that the more he talked about it, the more he remembered. He said that he had picked up the gun from “Matthew” and he recalled him telling Mr Warda to take a photo. He could not remember when he took the photo. He accepted that this was not in his statement. He said that he believed that he took the photo in February 2017, but he later accepted that he took the photo in March 2018.

46. [97]

    Mr Warda denied that he lied about being asked by Mr Askarou to pick up a gun from his cousin. He denied that it was his own gun. He said that Mr Askarou wanted to find a buyer for it. He said that it would “possibly be false” to suggest that he took the photograph of the gun before he put it under the bed, although he conceded that the photograph was taken when it was on top of his bed. He could not recall in which suburb he met up with Mr Askarou’s cousin to pick up the gun, as he had put the address in a navigator.

47. [98]

    After being given this gun, the applicant brought over two more guns and took back one. He said that he would pick one up a week later. This occurred after February 2017. Nowhere in his statement of 10 January 2018 did Mr Warda provide an account of the applicant arriving at his house with two guns and taking one back, and he agreed that it was not until cross-examination that it was mentioned. Mr Warda said that Mr Askarou was going to pick one up later and sell it, and that he came back a few weeks later to take one of them. Mr Warda denied that he was making up stories about the guns. He said that the guns were stolen from his house on New Year's Eve 2017/2018.

48. [99]

    Mr Warda agreed that his evidence now was that Mr Askarou disclosed to him that he had been the shooter, and how the shooting had happened. He agreed that he knew all of this but that he never went to police. He understood that the guns he was holding were unlicensed, unregistered and illegal to hold. He agreed that he had touched the guns. He said that it had never occurred to him that the person who broke into his house and stole two guns might use those guns for nefarious purposes. It was suggested to him that he had a dilemma at that point, and that if he did not go to the police with a story about those guns and something did happen - for example, if they were used in violent crime - they would be linked back to him. Mr Warda denied that he went to the police and told them that they were stolen because he did not want something bad to happen to him.

49. [100]

    Mr Warda had a falling out with Mr Askarou when he accused Mr Warda of stealing the guns. He said that Mr Askarou kidnapped him on about 7 January 2018 before he went to the police station on 8 or 9 January 2018. He said that he went to the police only because he felt that his life was in danger.

50. [101]

    One of Mr Warda’s statements of January 2018 said that in about June or July 2017, the applicant randomly came over to his house and asked him to keep a black coloured pistol wrapped in cloth for about a month or two, which Mr Warda stored under his bed with the rifle. He agreed that this was a very different account to the one he had just given to the jury. He could not remember the circumstances of Mr Askarou picking up the gun. He agreed that the third gun was introduced in evidence at trial for the first time and that had never told any police officer about this third gun.

51. [102]

    Mr Warda accepted that he was using cocaine in 2017 and in 2018. It was put to him that he was not in a very good financial position in 2017, but Mr Warda said that he was stable. He agreed that his girlfriend at the time had taken out a loan in her name for $40,000 for his benefit. Mr Warda said he was trying to start a business. He agreed that in late 2017, he was late with loan repayments. He denied that Mr Askarou had loaned him $8,000 and had provided him with two ounces of cocaine for him to sell to remedy his financial situation. It was suggested to him that before New Year's Eve 2017/2018 and prior to the robbery at his house, he was having conversations with Roni Audisho about how he had “fucked up” with the 2 ounces that had been given to him by Mr Askarou, which he denied. He denied asking the applicant toward the end of December 2017 if he could borrow money from him. He denied telling the applicant that the robbery at his house included the 2 ounces of cocaine that Mr Askarou had given him.

52. [103]

    Mr Warda agreed that Mr Askarou first confronted him on 8 January 2018, which was the day on which Mr Warda alleged that he was kidnapped. Mr Warda said that he was scared that Mr Askarou was going to do something to him, so he apologised and promised to find a way to pay him back for the stolen guns. He said that he did not want the applicant to do to him what he had done to Mr Kryo.

53. [104]

    It was suggested to Mr Warda that the guns stolen from his house were his own guns, which Mr Warda denied. Mr Hughes suggested that Mr Warda told Mr Audisho in December 2017 that he was deeply in debt. He agreed that this was true.

54. [105]

    Mr Warda said that the kidnapping occurred on 8 January 2018. He denied that on 5 January 2018, he asked Mr Askarou for a gram of cocaine. Mr Warda agreed that the kidnapping allegation was still an allegation to be tested in a court. Mr Warda denied that he willingly got into a car with Mr Askarou and a Mr Yaghoupour at the time that he says he was kidnapped. He agreed that in the course of that event, they first went to his uncle's house but no one was there. Mr Warda said that his phone was not with him and that the kidnappers had a knife and a spider with which they threatened him. He denied that a man named Kevin Gewargis was with them. He said that there were only three people in the car, but he agreed that by the time he was dropped off at home, Mr Askarou had left in another car. Mr Warda denied that there was any conversation in the car. He denied that he was very anxious about his girlfriend at the time knowing about his involvement with cocaine.

55. [106]

    Mr Warda agreed that in September 2018 he raised, for the first time, the existence of a fourth person who was in the car during the kidnapping. He said that he was detained against his will from about 8:30 pm through to when he was dropped off at his home. He agreed that at some point during that kidnapping, they stopped at some apartments where there was a male, a female and a dog. Mr Warda said that his mobile phone was taken away from him and that it was only given to him when he got home.

56. [107]

    Mr Hughes suggested to Mr Warda that his knowledge of the getaway driver on the night of the shooting was a fabrication, which Mr Warda denied. He agreed that he had never named the shooter in spite of many opportunities to do so.

57. [108]

    Mr Warda agreed that when he went to the police after the kidnapping he was insistent that before he gave any account of anything he be given immunity for prosecution in relation to the guns. In fact, Mr Warda provided an induced statement on 10 January 2018, which meant that he would not be prosecuted for his involvement with the guns so long as he told the truth in the statement.

58. [109]

    It was suggested to Mr Warda that he was dealing cocaine and that he was struggling to repay the $40,000 loan taken out in his girlfriend’s name, which he denied. He denied that he had any debts to Mr Askarou. It was suggested that he had told a story and falsely implicated Mr Askarou in relation to the guns, which he also denied. It was suggested to him that he thought it would be clever to get immunity and then falsely implicate Mr Askarou with the guns, which he denied. It was suggested that the accounts of Mr Askarou attending on the evening of the shooting and the next day were fabrications, which he denied.

59. [110]

    Mr Hughes suggested to Mr Warda that he did not leave his keys in Mr Askarou’s car, that Mr Askarou did not return to deliver the keys on the night of the shooting and that he had created the story to provide a reason why Mr Askarou would be there, all of which Mr Warda denied.

60. [111]

    In re-examination, it was confirmed that no inducement was provided with respect to Mr Warda’s statement of 9 January 2018. An inducement was provided to him only with respect to the statement of 10 January 2018, the inducement being that if Mr Warda told the truth, he would not be prosecuted with respect to holding the guns.

61. [112]

    I observe that no warning pursuant to s 165 of the Evidence Act 1995 (the Evidence Act) was sought with respect to the evidence of Mr Warda, and no such complaint is made in these proceedings. I assume that a considered forensic decision was made by very experienced counsel not to seek such a warning, and I therefore leave this to one side.

62. [113]

    In evidence in chief, Mr Andrews said that on 28 July 2016 he contacted Mr Kryo on several occasions. He said that he believed that Mr Kryo spent some time with him and then left his house to see his uncle to have a tyre repaired, and then came back to his house for a short while. He believed that Mr Kryo left his house somewhere between 9.30 and 10 pm.

63. [114]

    In cross-examination, Mr Andrews said that he did not think that Mr Kryo’s uncle Yousef had been at his house in the evening of 28 July 2016. He agreed that the statement he had made on 3 August 2026 was likely to be more accurate. In that statement, Mr Andrews said that Mr Kryo had left his house at about 8 pm and came back sometime later. He agreed that he received a phone call from Mr Kryo at about 8:52 pm and that was probably the time that Mr Kryo was returning to his house from his uncle’s where he was getting his tyre fixed.

64. [115]

    Mr Andrews was cross-examined about his alleged association with criminal gangs in his area, and about a time when he had been shot and another when he was with someone who was shot.

65. [116]

    Mr Greco was a property management director at Strathfield Partners Real Estate. He confirmed that Mr Askarou and his then girlfriend had entered into a lease for a unit in Liverpool commencing on 12 August 2016. He confirmed that Mr Askarou’s girlfriend’s phone number ended in 736. Mr Askarou listed Daniel George, who was one of the alibi witnesses, as a reference.

66. [117]

    Mr Ibrahim is the younger brother of Mrs Kryo and the uncle of Mr Kryo. He is three years older than his nephew. He gave a statement on 3 August 2016 concerning the events of 28 July 2016.

67. [118]

    Mr Ibrahim believed that he had seen Mr Kryo at about 8 to 8:30 pm on 28 July 2016 when Mr Kryo dropped over to his house so that they could fix a tyre on Mr Kryo’s car. His telephone number ended in 245.

68. [119]

    Mr Ibrahim said that after fixing the tyre he followed his nephew to a petrol station to put air in the tyre.

69. [120]

    In cross-examination, Mr Ibrahim said that he had spoken to Mr Kryo on 28 July 2016, and he agreed that called him at about 8 pm, following which Mr Kryo pulled up in front of his house. They fixed his tyre. He agreed that he followed him to a petrol station thereafter. He agreed that he would have last seen him at about 8:30 to 8:40 pm. He said that he then went for a short drive and went home. He told Mr Hughes that he may have mixed up dates about when he had seen Mr Kryo at Mr Andrews’ house because they always went to Mr Andrews’ house to work on their cars. However, he was certain that he was not at Mr Andrews’ house on this night.

70. [121]

    Sergeant Poole gave evidence that he was satisfied that one of the two persons nominated by Mr Hughes as a person who may have had a vendetta against Mr Kryo at the time of the shooting was not in the vicinity of Prairiewood at the time of the incident. He based his opinion on a review of tracking devices that were in place on 28 July 2016 and Sergeant Poole’s attendance at that person’s home at 2 am on 28 July 2016.

71. [122]

    Mr Radu was the property manager for an apartment block at Wolli Creek. His evidence established that Mr Askarou lived there with his girlfriend at the relevant time. Two swipe cards were associated with Mr Askarou’s apartment. Records confirmed that one of those cards were used to enter the car park at 11:34 pm on 28 July 2016, and that it was used to exit the carpark at about 1:03 am on 29 July 2016. It was used to return to the carpark at about 2:04 am on 29 July 2016.

72. [123]

    Ms Samon was an enforcement specialist with Transurban Limited. Her evidence was that Mr Askarou’s e-tag passed through a toll on the M5 at Henry Lawson Drive going east at 11.13 pm on 26 July 2016. At 12.42 am on 29 July 2016, there was an entry that his tag went west at Fairfield Road.

73. [124]

    Detective Gunn arrived at the scene on 28 July 2016 at about 10.35 pm. He took a statement from Mrs Kryo on 3 August 2016, at which time she told him that about a year and a half before, she had overheard a conversation with her son and Mr Askarou during which Mr Askarou had threatened him, and she told Mr Askarou that if anything happened to her son she would know it was him because he had just threatened him.

74. [125]

    In his evidence in chief, Mr Audisho gave his occupation as property developer. He confirmed that he lived at Nugent Place in Prairiewood in July 2016. At that date he had been living there for 18 or 20 years. On 28 July 2016 he said that he arrived there to visit his father, travelling from Edensor Park or Smithfield in his Toyota Corolla. He believed that he arrived somewhere at about 8 or 9 pm. His immediate next door neighbour was Mr Kryo. They had been friends since high school. Living further down Nugent Place was his friend Mr Warda whom he knew very well. They were very good friends. He had also known Mr Askarou for a long time.

75. [126]

    Mr Audisho said that on 28 July 2016, he arrived at his father's place. His father opened the door when he was on the phone to Mr Warda. He told his father that he was going to Mr Warda’s house to have a cigarette with him and would come back. He jogged across his neighbour’s (Mr Kryo’s) driveway, at which time Mr Kryo was reversing his Ute, and he said hello to him. He continued jogging to Mr Warda’s place to have a cigarette. He said that he was on the phone to Mr Warda whilst he was driving and when he told him he was coming over.

76. [127]

    When asked why he was jogging, Mr Audisho said that he was on the phone to Mr Warda who told him to come over, and so there was no real reason why he was jogging or running - he just jogged to Mr Warda’s house. He saw no person on Nugent Place or around the street at that time. He could not recall whether he was on the telephone with Mr Warda when he was jogging towards his house.

77. [128]

    When Mr Audisho arrived at Mr Warda's house, Mr Warda came outside and they went to spark up a cigarette. They then heard three loud bangs. At that point they were outside on Mr Warda's front porch. Mr Warda was in front of Mr Audisho. He recalled saying to Mr Warda something like “that must be fireworks”. He became worried and ran back to where he had come from, because the shots came from the direction of his father's house. He ran fast.

78. [129]

    As he approached his father's house, Mr Audisho saw Mr Kryo on the ground. He was on the phone to the ambulance. It looked like he had been shot. Mr Audisho grabbed the phone off Mr Kryo and spoke to the operator. The audio of that call was played to the jury and tendered as exhibit “12”. The transcript of that conversation is as follows, and became exhibit “13”:-

79. [130]

    It was established that Mr Audisho may have given a wrong phone number to the operator, which was in fact 0449 595 182. Mr Audisho said that he was told by police to leave, as it was a crime scene, and so he returned to Mr Warda’s house. He walked there with Mr Warda, who had arrived at the scene sometime after Mr Audisho. At Mr Warda’s house, they both gave statements to the police. Mr Warda was hesitant to do so. He told Mr Audisho not to give one. It was not in dispute that Mr Audisho had made three phone calls to Mr Warda that night, at 9.27 pm, 10.20 pm and 10.22 pm. He had made 5 phone calls to a number ending in 890 (linked to Mr Askarou by IMEI) at 9.15 pm, 9:16 pm, 9:26 pm, and two at 9:27 pm. Mr Audisho said that he could not remember to whom those 5 phone calls were made.

80. [131]

    At this point the Crown Prosecutor made an application pursuant to s 38 of the Evidence Act to cross-examine Mr Audisho on four topics. The first concerned Mr Audisho’s running or jogging, the second concerned whether Mr Audisho had given the defence a statement used to cross-examine Mr Warda, the third was about who was using the phone ending with 890 and the fourth was whether or not the alibi witness Daniel George had requested Mr Audisho to provide his phone to be downloaded for the defence. The evidence was first taken on a voir dire.

81. [132]

    Mr Audisho confirmed that he had spoken to Ms Bannister, solicitor for Mr Askarou, somewhere in the city sometime in 2019. He could not remember speaking to Mr Karim, junior counsel for Mr Askarou. He confirmed that Daniel George was his friend. He could not remember being asked to provide his phone and denied ever speaking to Mr George about the matter. He said that Ms Bannister went through his statement with him, and he confirmed that Mr Warda was in debt for drugs. He could not recall signing anything with Ms Bannister. He said that he could not recall how many phone calls he had with Mr Warda before he left to jog to his house.

82. [133]

    At that point, his Honour raised the possibility that Mr Audisho might need the protection of a s 128 certificate, as he believed that there might be a suggestion in the evidence that Mr Audisho had a connection with the very offence before the court. Mr Audisho (after having received legal advice) said that he did not wish to take any objection about events on the night of 28 July 2016, or with respect to the shooting of Mr Kryo. The voir dire continued.

83. [134]

    Mr Audisho could not recall whether not the 890 number which he had called was a number used by Mr Askarou on 26 July 2016. He said that he called Mr Askarou frequently as they were close friends. He denied that he met up with Mr Askarou or Daniel George on 28 July 2016. The Crown Prosecutor suggested to Mr Audisho that he ran away from his father’s place to Mr Warda’s house because he wanted to be as far away as he could when Mr Kryo was going to be shot, which Mr Audisho denied.

84. [135]

    Sergeant Matthew Stratten, the officer in charge, was called on the voir dire. He attributed four phone numbers to Mr Askarou. They ended in 112, 899, 890 and 363.

85. [136]

    Mr Audisho’s examination in chief continued. He agreed that in 2019 he had spoken to the accused’s solicitor in an office and talked about his statement. He agreed that he was asked about Mr Warda. He agreed that there was nothing about Mr Warda’s drug use in his statement, but he said that Mr Warda was on drugs every day of his life.

86. [137]

    Mr Audisho said that by January 2018 his relationship with Mr Warda was not good, and neither was it good in October, November and December 2017.

87. [138]

    Mr Audisho agreed that on 28 July 2016 he had made five short calls to a number ending in 890 after which he made contact with Mr Warda at 9.27 pm. It was suggested to him that he was in Nugent Place for an hour and 20 minutes prior to the shooting. Mr Audisho denied this. It was suggested by the Crown Prosecutor that the telephone records indicated that if he had made the first call to Mr Warda, and that if he was at Nugent Place at that time, that he had been in Nugent Place about an hour and 20 minutes prior to the shooting. Mr Audisho denied this. He said he could not say whether the number ending in 890 belonged to Mr Askarou. He then said that he recalled calling Mr Askarou on the night of the shooting because they were friends.

88. [139]

    During a break, his Honour confirmed that he had granted leave to the Crown Prosecutor to cross-examine Mr Audisho in front of the jury. His Honour then told the jury that there was nothing untoward about the defence speaking to any witness, including Mr Audisho.

89. [140]

    The Crown Prosecutor suggested to Mr Audisho that he jogged down to Mr Warda’s place because he wanted to be as far away as possible when Mr Kryo was going to be shot, which Mr Audisho denied. Mr Audisho said that he could not recall if Daniel George had asked him to give his phone to Mr Askarou’s solicitor. He said that he could not recall any specific conversation he had had with Mr Askarou’s solicitor.

90. [141]

    Mr Audisho was then cross-examined by Mr Hughes. Mr Audisho said that he had also had conversations with junior counsel Mr Karim who asked him questions about Mr Warda's personal and financial situation at the end of 2017. He said that he had a conversation with Mr Warda towards the end of 2017 on the subject of two ounces of cocaine and $8000. At that time he was a very good friend of Mr Warda. Mr Audisho said that at the end of 2017, Mr Warda’s drug habit was getting out of hand and he owed a lot of people money.

91. [142]

    Mr Audisho said that Mr Warda had taken out a loan in his girlfriend’s name and that he was stressing about it because she was going to default on the loan and he had not made any payments on it. He had four or five loans that he had taken out with different people. Mr Audisho recalled one very specific conversation about cocaine that lasted about 5 minutes. He and Mr Warda were in Mr Warda’s house and Mr Warda mentioned something about setting up Mr Askarou, because he owed money to him. This is when their relationship deteriorated because Mr Audisho told Mr Warda not to do that.

92. [143]

    Mr Audisho believed that he had a conversation with Mr Askarou about two ounces of cocaine which took place toward the end of 2017. Mr Askarou told him that Mr Warda owed him for an ounce of cocaine which he was going to sell to pay his debts. It began with one ounce, but Mr Warda snorted it and gambled everything and so he got another one. Mr Audisho said that it was because of Mr Warda’s inability to pay back Mr Askarou that he was going to set him up. He had conversations with Mr Warda at his home on several occasions. On more than one occasion Mr Warda had asked him for money. There were many conversations with Mr Warda about his debt situation.

93. [144]

    Mr Audisho said that on one occasion in early January 2018, Mr Warda told him that he needed to get Mr Askarou off his back.

94. [145]

    When Mr Audisho went back to Mr Warda's house on the night after the shooting, they were there for some time. They had discussions about the shooting and who might have done it but Mr Warda did not indicate anything or express a view about who might have done it. Mr Warda encouraged Mr Audisho not to give a statement to police. Mr Warda did not tell Mr Audisho about Mr Askarou visiting him that afternoon. Mr Audisho did not recall leaving a set of keys at Mr Warda's house before he went back to the scene of the shooting.

95. [146]

    With respect to the events of New Year's Eve 2017/2018, Mr Warda called Mr Audisho the day after and told him about a break in at his home. Mr Audisho had never seen Mr Warda with a firearm. Mr Audisho denied that he had a plan to communicate to Mr Askarou when to shoot Mr Kryo.

96. [147]

    So far as the telephone calls to Mr Warda on 28 July 2016 were concerned, Mr Audisho said that he was not speaking to anyone else at that stage. He could not answer a question about why he needed to talk to Mr Warda twice about the subject of going over for a cigarette. He could not explain why he had told police (recorded in a police notebook) that he had spoken to a girl on the phone before seeing Mr Kryo get out of his car. He agreed that he had probably spoken to somebody else as well, and that there was nothing in his police statement about that.

97. [148]

    Mr Audisho said that at the time that he waved to Mr Kryo, he was jogging to Mr Warda’s house, which he agreed was approximately 95 metres away. He agreed that he had told police that after speaking to Mr Warda on the phone, he began walking down the street towards his house. He confirmed that he spoke to Mr Askarou that day, but said that he did not see him on Nugent Place on 28 July 2016 and neither did he signal to him in any way.

98. [149]

    Mr Audisho confirmed that when he left Mr Warda’s house to go to the scene of the shooting, Mr Warda remained at his home. He believed that Mr Warda was wearing a hoodie and track pants at that time and he had no recollection of him wearing shorts when he saw him at the porch.

99. [150]

    In brief further cross-examination, the Crown Prosecutor confirmed that on 28 July 2016, Mr Audisho had two phones, one of which he used for work. In further cross-examination, Mr Hughes established that Mr Audisho believed that he had the two phones with him on the night.

100. [151]

     In re-examination, Mr Audisho confirmed that he had in fact met junior counsel for Mr Askarou, contrary to his answer to the Crown Prosecutor on the voir dire. The Crown Prosecutor suggested that Mr Audisho had told lies, which Mr Audisho denied.

101. [152]

     Detective Sergeant Stratten was recalled. He confirmed that on the day of the shooting Mr Audisho was using a phone ending in 182, and that charge records had been obtained. He also confirmed that police had spoken to the alibi witnesses Ms Rahal and Mr George. He gave evidence, not in dispute, that in the early hours of the morning on 29 July 2016, a Toyota Corolla vehicle was stopped in the Bexley area. The accused and his girlfriend were occupants of that vehicle. The car was searched but nothing was found. The owner of the vehicle was the accused’s father.

102. [153]

     In cross-examination, Mr Hughes established that media releases (to which see above) were delivered to the homes of both Mr Warda and Mr Audisho in the weeks after the robbery.

103. [154]

     CCTV from 62 Greenfield Road was played. I have reviewed that CCTV footage. It is grainy and difficult to make anything out with certainty. It appears to show someone running at about 10.30 pm on 28 July 2016 into O’Meally Street which is a few blocks from the shooting. That figure goes into O’Meally Street past a truck, and headlights are illuminated. It was alleged that this was the getaway vehicle. I observe that exhibit 2 demonstrates that O’Meally Street is proximate to what was identified as the “rock spot”. By proximate I mean that it is perhaps two or three blocks away.

104. [155]

     Documents were tendered which linked certain telephone numbers with certain persons.

105. [156]

     It was established that the second of the two persons suggested to have a vendetta against Mr Kryo at the date of the shooting was in custody on 28 July 2016 (it having been established that the other was subject to police tracking devices at that date).

106. [157]

     Detective Sergeant Stretton accepted that neither alibi witness had a criminal record and that Ms Rahal was a justice of the peace. It was also established that the accused had no convictions in relation to the possession or use of firearms. He also confirmed that he had told My Kryo in about March 2017 that there was insufficient evidence to charge Mr Askarou. That position changed on 9 January 2018 when Mr Warda gave his statement to police.

107. [158]

     In examination in chief, Mr Gewargis said that he spoke to police in about June 2018 but made no statement. He spoke to Mr Askarou’s lawyers and made a statement to them a few weeks before the conversation with police.

108. [159]

     He said that there was an incident which took place on 8 January 2018, when he and his cousin Joseph were to go out to eat. He recalled being called up to meet with Joseph at dusk. He drove to Bossley Park, as they had arranged. Mr Gewargis waited for Joe in his car. Joe soon arrived with another person who he did not know. He learned that his name was Labib because that is what he was called by others. Labib arrived with Joseph in a car together. They came out of the car together. Joseph said that they waited for Naramsin (Mr Askarou), who arrived about 5 minutes later. Joseph told Mr Gewargis that he, Naramsin, and Labib were going to go somewhere before they went to dinner. Mr Gewargis and Joe travelled in Joe’s car, and Naramsin and Labib went in Naramsin’s car. Joseph followed Naramsin’s car all the way to Homebush.

109. [160]

     At Homebush they parked their cars. Joseph, Naramsin and Labib were talking to one another. Mr Gewargis kept his distance. They met a man and his girlfriend who had a German Shepherd dog with her. She kept her distance from the men. The conversation soon ended. It was arranged that Naramsin would drive back by himself, and that Joseph would drop off Labib at his house. Mr Gewargis was to travel with Joseph. He travelled in the passenger seat of Joe’s car and Labib sat in the back. There was some discussion between Joseph and Labib about the fastest way to get to Greenfield Park. During that drive, Labib was typing on his phone. When they arrived at Labib’s home, he got out of the car, said goodbye to Joseph and walked to what Mr Gewargis assumed was his house.

110. [161]

     Mr Gewargis said that he never spoke a word to Labib that night, who appeared “neutral”, i.e. neither happy nor sad. Joseph apologised for not going out to dinner with Mr Gewargis.

111. [162]

     His Honour granted the Crown Prosecutor leave pursuant to s 38 of the Evidence Act to cross-examine Mr Gewargis about whether or not there was a conversation during the car trip and whether or not Mr Warda had his phone. The Crown Prosecutor suggested to Mr Gewargis that a woman and a man did not come out at Homebush, that there was no talking at all in the car and that Labib was only given back his phone when he left the car, all of which Mr Gewargis denied.

112. [163]

     In cross-examination by Mr Hughes, Mr Gewargis said that he had no criminal convictions, and that at the time of this event he was 19 years old and that Joseph was 24 years old.

113. [164]

     In re-examination, Mr Gewargis could not say whether or not the car in which he travelled to Greenfield Park had a child lock system.

114. [165]

     Mr Timpano was an expert called by the defence. His expertise in forensic computing was embraced by the Crown. He produced two documents which were created after he had downloaded data from the mobile phones of the alibi witnesses. The data from Ms Rahal’s phone became exhibit “M”. The data from Mr George’s phone became exhibit “N”. Reverse call records of Mr George’s phone was exhibit “27”. Reverse call records of Mr Askarou’s phone was exhibit “28”. Three methods were adopted to determine the authenticity of text messages found on their phones. In Mr Timpano’s view, the text messages were authentic. He agreed that there was likely some data in the form of text messages that had been deleted or corrupted (in particular on Mr George’s phone), and which he could not access or replicate. It was noted that all times on the messages had to add 10 hours to be accurate, as Sydney was Greenwich Mean Time +10.

115. [166]

     Ms Rahal gave evidence in the defence case. She married Daniel George in 2018. In 2016, she was his fiancée. She completed a Bachelor of Social Science at the University of Western Sydney in 2014. Between 2015 to 2019, she was employed as a caseworker for Catholic Care in the adoption and foster care program. At the date of trial she was employed at Barnardos Australia as an adoption applications facilitator.

116. [167]

     Ms Rahal has known Mr Askarou since primary school. In July 2016, she was living with her parents at an address in Greenfield Park in a house owned by them. She had lived there since 2005 with her mother and step-father. She lived out the back in a granny flat which had her bedroom and bathroom. Next to it was a lounge room. Each of the bedroom and lounge room had glass sliding doors that faced out onto the back garden.

117. [168]

     On 28 July 2016, Mr Askarou’s girlfriend contacted Ms Rahal and came by the house at about 4 pm to have a coffee to discuss relationship issues she was having with Mr Askarou. Her husband allowed them to speak privately.

118. [169]

     In the evening, Ms Rahal and Mr George were watching television in her bedroom when Mr Askarou arrived. They were expecting him, and he came straight back to the granny flat. The time was approximately 8:30 pm to 9 pm. Ms Rahal stayed in bed watching television, and Mr George and Mr Askarou moved into the lounge room. At some point – no more than a half hour later – they moved onto the grassed garden area where there was a table and chairs. The glass sliding door was closed but her curtains were open. She heard loud laughter. They did not leave the grassed area.

119. [170]

     At some point Ms Rahal texted her husband asking him to turn the heater and light off when he came back in. She recalled that the night was cold, that she had pyjamas on in bed and that the heater was on. The men were perhaps 12-15 metres away from her. She said that it was not out of the ordinary to send a text in those circumstances. Some minutes later she sent a text to Mr Askarou asking him to tell Mr George to check his phone. She sent this message because she had not received a response from Mr George and she was frustrated. At this time, the men were still on the lawn. Very soon thereafter, they walked inside and Mr George acknowledged the message. Mr Askarou stayed for sometime thereafter. When he was ready to leave, he said goodbye and told Ms Rahal that he was going to see his girlfriend. Mr George turned off the heater when Mr Askarou left and he returned inside.

120. [171]

     Ms Rahal was shown a video taken in 2019 depicting the granny flat and the grassed area. A second video, taken on 28 July 2016 was also shown. It depicted Mr George “pranking” Ms Rahal, and it shows the table and chairs on the grassed area. A third video taken on 1 August 2016 of a toy poodle puppy shows a “bar” heater in the granny flat. I have looked at each of those videos, and the descriptions in the evidence matches my own observations of them.

121. [172]

     Photographs were also shown to Ms Rahal. The first was one taken in 2019 showing a bed with a pinkish pillow. The second photograph, taken by Mr George, was taken on 31 July 2016 and depicts the bedroom and the chairs and table on the grassed area. The third photograph was a screenshot of the “prank” video in which the table and chairs on the grassed area are visible. Another photograph taken on 10 July 2016 showed Mr George with his arm in a sling after having shoulder surgery.

122. [173]

     The first text to Mr George was sent at 10:17 pm. The second text to Mr Askarou was sent at 10:28 pm. During the time between the texts, Ms Rahal said that she was frequently glancing at Mr George and Mr Askarou on the grassed area. Ms Rahal also confirmed that she had texted Mr Askarou’s girlfriend at about 3:24 pm asking her to come over for a coffee. There were other texts to and from Mr Askarou’s girlfriend after she came over for the coffee.

123. [174]

     In cross-examination, Ms Rahal said that she first considered the matter after Mr Askarou was arrested. She said that she could recall events because her husband was in a sling at the time and it was not often that your partner is in a sling after having big surgery. Her husband had first remembered that it was the day that Mr Askarou’s girlfriend came over separately, and that Mr Askarou came over later. It was out of the ordinary for them to have come over separately. Having text messages solidified her memory.

124. [175]

     Ms Rahal said that after they met with Mr Askarou’s solicitors, she searched through her messages and found the message that she had sent to Mr Askarou on her phone.

125. [176]

     Ms Rahal was cross-examined on the layout of her granny flat and in particular her bedroom. She said that the television was mounted on the wall which meant that she would be looking outside toward the grassed area. She said that the lights were off when she was watching television in her room and all of the lights out the back were on. She said that when you are in darkness watching television, you could easily see the outside. She said that she could hear the men outside when they were at the table in the grassed area, carrying on.

126. [177]

     Ms Rahal said that she texted her husband because she didn't want to yell out when he and Mr Askarou were having a conversation. She did not think that he got the text because she had not received a response, and she could see that they were continuing to carry on. She remembered being a bit frustrated at her husband because they were laughing at times and she thought that he had either ignored her message or that he had not got it. At that point she had a three month old puppy, and she did not want a situation where the heater was left on with his soft toys around. That led her to message Mr Askarou. She knew that Mr Askarou would have his phone on him, and so she knew that by messaging him, her message would get across to her husband.

127. [178]

     The Crown Prosecutor directed the witness’s attention to a message to Mr Askarou’s phone at 10:40 pm. She said that she had no recollection of that message which was not produced in the download.

128. [179]

     In July 2016, Ms Rahal said that her net income was roughly $1,000 per week. She confirmed that her husband had his arm in a sling since an operation about 8 weeks prior to 28 July 2016. She confirmed that because of the operation and during his recovery he was unable to work. He was previously involved in construction as a labourer. The Crown Prosecutor took the witness to a series of messages about money going into it an account and in particular to a message from Mr George where he said that he was going to put $3200 into an account “making it up to $31,000”. Ms Rahal explained that this was just after their engagement. They had had a very big engagement party and in their culture, money is the usual gift, and they had received a lot of money which they were saving for their wedding. Their engagement occurred on 28 April 2016. She said that Mr George had lived off some of the money that came from the engagement when he was recovering, and he would likely have been replacing some of that money.

129. [180]

     Ms Rahal denied that she deleted any message that she sent to Mr Askarou. She said that she had willingly provided her phone to the expert so that everything could be extracted and that she had nothing to hide. She was taken to the photographs and it was suggested to her that the photographs were not taken by chance, which she denied. It was suggested that the videos and photographs were taken to present a picture and provide support for a false alibi that she was giving the accused, which she denied. It was suggested that the agreement to provide that alibi arose prior to the night of 28 July 2016, which she denied.

130. [181]

     In re-examination, Ms Rahal said that the lounge room was beside her granny flat and that she regarded the lounge room as part of it. She further said that because she had a young puppy in July 2016, they were taking a lot of photos and videos.

131. [182]

     Mr George married Ms Rahal in April 2018. He had known Mr Askarou since high school. At the time of the trial, he was working as a truck driver for Toll.

132. [183]

     Mr George recalled Thursday 28 July 2016. About 8 weeks before that date, he had surgery on his left shoulder and he was in a sling. He was not working. His doctor had told him that he was going to be in a sling for 12 weeks. On 28 July 2016 he had been in the sling for approximately 8 weeks. He was taking some medication for the pain because it was a big surgery. On 28 July 2016, Mr George contacted Mr Askarou by phone call and messages asking him for marijuana to help him get his mind off the pain. He said that he had deleted all those messages because keeping them made him paranoid. Mr George did not have a criminal record.

133. [184]

     On 28 July 2016, Mr Askarou called and told Mr George that he had found him some marijuana. He told him that he would come and bring it over later. Mr George said that Mr Askarou arrived sometime between 8:30 pm and 9 pm and brought him the “weed” as promised. At the time of Mr Askarou’s arrival, he was in bed with Samantha watching television. Mr Askarou came in and had a chat with Samantha about her conversation with his girlfriend. Mr George got some stuff from the drawer to roll a “joint” with, and some scissors and walked out. Mr Askarou walked out after him. After a little while they sat in the lounge room area. They rolled a joint and were talking. They then moved outside on the grass area to smoke the joint there. He estimated that this took approximately 20 minutes. They then went to where there were plastic chairs and a table. This is where they smoked the joint. They stayed there for over an hour, mucking around. They were talking about Mr Askarou’s relationship issues, and Mr George was trying to cheer up Mr Askarou.

134. [185]

     Mr George was aware that a text message was sent by Samantha at 10:17 pm, but he did not have his phone with him when he was talking to Mr Askarou. He had accidentally left his phone on the couches in the lounge room where they had been sitting. Mr Askarou then got a message from Samantha. After that they walked inside. Mr George looked at his phone and he saw the text from Samantha. He went to Samantha's room and told her not to worry about it, that he would turn off both the heater and the light. At that point Mr Askarou was with him. Mr George believed that Mr Askarou stayed perhaps about half an hour longer. Mr Askarou told Mr George that he was going to pick up his girlfriend from her mum’s house and then go back to where he lived which was somewhere at Wolli Creek. His girlfriend’s mother lived somewhere in Fairfield Heights.

135. [186]

     Mr George was asked about Mr Kryo. Mr George said that he was born in Iraq and that his family then moved to Jordan. In Jordan, Mr Kryo was his next door neighbour. They went to school together. He has known him for a long time. Mr George said that he became aware that Mr Kryo had been shot a few days after the event. They did not maintain a close friendship in Sydney in the years 2011 to 2016, because he had heard from others that at one point Mr Kryo had a loaded gun.

136. [187]

     Mr George was asked about his engagement party, which he confirmed was big. He also confirmed that in his culture people put money into a wishing well as a present. He said that the $3200 he put in the account to “make it $31,000” was money that had been generated from the engagement.

137. [188]

     Mr George was shown the videos and photographs shown to Ms Rahal. His answers were consistent with that of his wife.

138. [189]

     Mr George conceded that he had deleted the messages he received from Mr Askarou on 28 July 2016. He said that the reason was because Mr Askarou was talking about weed and he was uncomfortable having those messages on his phone because it was illegal.

139. [190]

     Mr George said that although the smell of weed being smoked was strong, he felt comfortable smoking it outside at a time when his mother-in-law was asleep. In response to a suggestion by the Crown Prosecutor that he could have gone to a park or somewhere, Mr George said that he was more comfortable smoking it inside a backyard than smoking it in a park in the street which would be more “red hot” and more scary.

140. [191]

     Mr George was taken to a screenshot identified by name in his contacts as “Roni”. He confirmed that Roni was Roni Audisho and that he had been a friend of his since high school.

141. [192]

     Mr George denied that the photos which showed the outdoor furniture and the heater were taken to assist in providing Mr Askarou with an alibi. He denied that he had agreed in advance to provide the accused with an alibi for that night. He denied that the deleted messages were about providing an alibi to Mr Askarou.

142. [193]

     In re-examination, Mr George said that in July 2016 he was spending most of his time at home because he was in a sling. They had a new puppy which he was very excited about. He often pranked his wife, and often took videos of her.

143. [194]

     Mr Gora was a private investigator. He confirmed that when you lay on the bed in the granny flat in the same configuration as it was in 2016, and with the lighting as it was in the evidence of Ms Rahal, you could see outside onto the grassed area without any difficulty.

144. [195]

     Gemma Ridley, a solicitor employed by the firm of solicitors who were representing the applicant, measured the distance between Mr Audisho’s father’s house and the boundary of the house where Mr Warda was living. The distance was 85 metres.

145. [196]

     In written submissions, Mr Game submitted that the jury’s verdict was unreasonable having regard to all of the evidence. He submitted that evidence adduced by the Crown did not negate the possibility of others being involved in the shooting, including people with whom the victim was with on the night.

146. [197]

     Mr Game submitted that putting to one side the unreliability of Mr Warda’s various allegations against the applicant, the evidence demonstrated acrimony between the two by the time that Mr Warda implicated the applicant in the shooting more than a year and a half after the event.

147. [198]

     Mr Game further submitted that the evidence of Mr Warda’s account of the applicant’s alleged admissions appeared to be so tailored with the police media release that little weight could be placed on his evidence generally. He submitted that Mr Warda’s evidence of the applicant’s admission that he had parked his car at the rock spot and hid behind the victim’s car before the shooting was not supported by CCTV footage or the victim’s account of evidence leading up to the shooting, and that the victim’s versions about his whereabouts before the shooting were irreconcilable.

148. [199]

     The applicant relied heavily on what he said was the unsatisfactory evidence of Mr Warda and Mr Audisho to submit that the jury ought to have had a reasonable doubt as to guilt. Specifically, it was submitted that Mr Warda’s and Mr Audisho’s evidence as to their association on the evening of the shooting raised a real question as to where they were on the night. Neither claimed that they knew that the applicant was the shooter. It was submitted that their evidence did not exclude the possibility that they were both present at the crime scene. Combined with the alibi evidence, the applicant submitted that the evidence raised a reasonable possibility that he was not at the crime scene and that he was not the shooter.

149. [200]

     The Crown submitted that there was ample and cogent evidence at trial to prove the applicant’s guilt beyond reasonable doubt. This included the applicant’s motive and threats to kill the victim in 2014, Warda’s evidence that the applicant had discussed many times carrying out the 2014 threat in the period leading up to the shooting, Warda’s evidence that in the hours before the shooting the applicant attended his home wearing dark clothing and a balaclava and the day after the shooting, the applicant told Warda that he had shot the victim.

150. [201]

     The Crown acknowledged that the case at trial relied heavily on the evidence of Warda, but he submitted that this was a case where the jury’s advantage in seeing and hearing all of the evidence was of significance. The Crown submitted that Warda’s evidence (which was given over two days) was capable of being supported by other evidence including the motive of the applicant, the identification of the applicant as the shooter by the victim (notwithstanding that the Crown Prosecutor placed no great weight on this) and CCTV footage from a nearby house that captured the shooter running from the crime scene to a car at a location consistent with that nominated by the applicant when telling Warda about the shooting after the event.

151. [202]

     As to the alibi evidence, the Crown submitted that it was open to the jury to reject it as unsatisfactory, as the jury had the advantage of observing Ms Rahal and Mr George give evidence. The Crown Prosecutor had submitted that they were lying because of the great detail both could recall, despite being first asked to recall the evening of the shooting 18 months later. The Crown also relied on the fact that they were close with the applicant. Further, the alibi put the applicant in close proximity to the victim’s home, as Ms Rahal’s and Mr George’s house was in the same suburb as that of the victim.

152. [203]

     The Crown submitted that upon an independent assessment of the evidence, it was open to the jury (as it is to this court) to find the applicant guilty.

153. [204]

     The function of this Court when determining a ground of appeal that a verdict is unreasonable and cannot be supported by the evidence is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 (Dansie) at [7] applying M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M). Referring to M the High Court in Dansie observed at [8]:

154. [205]

     In answering this question, an appellate court must not disregard or discount that the jury is the body entrusted with determining guilt or that the jury also had the advantage of having seen and heard the evidence: see M; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell). This advantage includes (but is not limited to) being able to assess whether or not a witness has given reliable and credible evidence, and as explained by the High Court in Pell at [39], the role of an appellate court:

155. [206]

     The Court should give weight to the ability of the trier of fact to make assessments in the context of a trial where evidence is adduced orally, as opposed to merely reading the record: see Jaghbir v R [2023] NSWCCA 175 at [136] per Button J citing The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].

156. [207]

     In this case, the Crown case principally depended on the evidence of Mr Warda. I have set out in some detail his evidence at paras [65] – [104]. That his credibility and reliability were in issue at trial is somewhat of an understatement. Likewise, the credibility and reliability of Mr Audisho was very much a live issue. The credibility of the alibi witnesses was also very much in issue.

157. [208]

     Mr Warda’s evidence was troubling in several important respects, all of which were pointed out to the jury in Mr Hughes’s closing address. Mr Warda lied to the police when he gave his first statement. He gave the statement implicating Mr Askarou about 18 months after the shooting and after he was either kidnapped or significantly indebted to Mr Askarou. He gave an induced statement implicating Mr Askarou in the trade of firearms. His statements and evidence at trial were different to his evidence at the committal in material respects. Many of his answers were non-responsive and/or contradictory.

158. [209]

     Notwithstanding those comments, Mr Warda’s evidence, if accepted by the jury in material respects, in combination with Mr Askarou’s apparent motive, his alleged threats, his presence in the area of the night of the shooting, and the consistency of his height and built with that of the shooter was capable of proving his guilt beyond a reasonable doubt.

159. [210]

     These matters do not amount to “inconsistencies, discrepancies or other inadequacy” which would satisfy this court that “the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”: see Pell at [39].

160. [211]

     I have conducted a thorough assessment of the evidence and the trial record. In my opinion, the evidence of, in particular, Mr Warda, Mr Audisho, Ms Rahal and Mr George is capable of giving rise to some doubt about the guilt of the applicant. However in my view, this is a case where “the jury’s advantage in seeing and hearing the evidence [was] capable of resolving a doubt”: see M at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

161. [212]

     I would dismiss ground 1.

Ground 2: trial miscarried after Crown’s closing address

1. [213]

   In written submissions, the applicant submitted that the Crown Prosecutor erroneously addressed the jury to the effect that, because they could not rely on Mr Audisho’s evidence about his whereabouts on the night of the shooting, this could be used to infer that he was an associate of the applicant in the crime, and that this suspicion could be used to implicate the applicant in the shooting. The Crown Prosecutor relevantly addressed the jury as follows:

2. [214]

   The applicant submitted in writing that the Crown Prosecutor’s closing address went so far as to suggest that the evidence established that Mr Audisho was in collusion with the applicant and invited the jury to reason as follows: because Mr Audisho tried to contact the applicant before the shooting, he knew it was going to happen and was not willing to tell the truth, and this attacked the veracity of the applicant’s alibi. Put another way, the applicant submitted that the Crown invited the jury to reason that Mr Audisho’s suspicious conduct could be used as proof of the applicant’s guilt.

3. [215]

   It was submitted that despite this, the Crown Prosecutor did not put to Mr Audisho in cross-examination that he was complicit with the applicant or was an accessory before or after the fact. It was submitted that the Crown Prosecutor’s address invited speculation that he was, in a manner which implicated the applicant. This, on the applicant’s case, unfairly obscured the likelihood that an unidentified person was the shooter, a theory the applicant relied upon as raising a doubt.

4. [216]

   It was submitted that the Crown adduced only some evidence in chief from Mr Audisho and relied on issues which it refrained from asking him to implicate the applicant, and that the Crown used its s 38 application to cross-examine Mr Audisho as a forensic device to obscure an inherent problem with its case, namely Mr Audisho’s evidence, the telephone records and contradictory evidence with Mr Warda, all of which ought to have raised a reasonable doubt.

5. [217]

   Further, Mr Game submitted that impugning a witness’s credit without affording them an opportunity to respond is conduct that has been held to justify the censure of this Court: see R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487. This, in Mr Game’s submission amounted to inappropriate conduct of a Crown Prosecutor of the kind described in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 and Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 which would amount to a miscarriage of justice.

6. [218]

   As to the applicant’s trial counsel not asking for a direction, Mr Game submitted that proper directions would have reinforced the defence arguments, namely that the involvement of Mr Audisho and Mr Warda ought to have raised a reasonable doubt, but that given how trial counsel addressed the jury in their closing on this topic, there was no tactical benefit in inviting trial judge to direct the jury that it was not open to them to use Mr Audisho’s conduct as proof of the applicant’s guilt. Trial counsel addressed the jury relevantly as follows:

7. [219]

   The Crown submitted that the Crown Prosecutor was entitled and obliged to attack the credibility of Mr Audisho. It was submitted that the Crown Prosecutor invited the jury to wholly reject the evidence of Mr Audisho. He did not tell the jury that they could use doubts about his credibility as some evidence of the applicant’s guilt. On this point, the Crown submitted that the applicant was in fact on notice of all matters that would be put to Mr Audisho (given the issues that were ventilated on the voir dire), and that Mr Audisho was asked directly about his involvement with the applicant to which he gave a detailed response. Further, the Crown submitted that the applicant’s submission on this point disregards the fact that the applicant’s trial counsel raised for the first time at trial, evidence that the Crown was required to meet such that the applicant’s submission that the Crown case had fundamentally shifted when the trial Crown attacked Mr Audisho’s credibility ought to be rejected. Furthermore, at trial, the applicant made no objection to the Crown’s cross-examination of Mr Audisho, pursuant to s 38 of the Evidence Act.

8. [220]

   In my opinion, ground 2 can be dealt with in short order.

9. [221]

   I observe that there is no complaint about the manner in which the Crown Prosecutor ran the trial. Neither could there be. He called relevant witnesses who were adverse to the Crown case and ran the case with perfect propriety.

10. [222]

    Here the applicant essentially complains that the Crown told the jury that they could “jettison” one of the Crown witnesses (Mr Warda), who was adverse to the Crown case. That he was adverse must have been obvious to the jury, as the Crown cross-examined him pursuant to leave granted by the trial judge, not opposed by the applicant. It was specifically put by the Crown Prosecutor, taking into account the telephone records which demonstrated Mr Audisho’s contact with Mr Askarou, that “you jogged down there because you wanted to be as far away from where Mr Zia Kryo was when he was going to be shot”. Given the opportunity to respond, Mr Audisho denied the proposition put squarely to him.

11. [223]

    As the trial judge rightly pointed out in his summing up, the Crown is not precluded from criticising witnesses in its own case.

12. [224]

    In Kanaan & Ors v R [2006] NSWCCA 109, the Court (Hunt AJA, Buddin and Hoeben JJ) said at [80]:

13. [225]

    Here the Crown Prosecutor did no more than submit to the jury that one of the witnesses they were called upon to assess was unreliable, and that the jury should look to other evidence in their deliberations. There was nothing improper about doing so, and it was in keeping with the entirely fair manner in which a difficult trial was conducted.

14. [226]

    No complaint was made by trial counsel about the Crown Prosecutor’s address at trial. The Crown in this Court suggests that r 4.15 of the Criminal Appeal Rules is engaged.

15. [227]

    The Crown accepts that the authorities conflict as to whether the rule applies: see Armstrong v R [2013] NSWCCA 113 at [50] and Lyndon v R [2014] NSWCCA 112 at [28] – [29]. In the present case it is unnecessary to reconcile those authorities, as in my opinion the ground of appeal entirely lacks merit.

16. [228]

    In order to ensure finality, to the extent necessary, I would grant leave to rely on ground 2. However, I would dismiss ground 2. As noted I agree with the orders proposed by Beech-Jones CJ at CL.