Tiriaki v R

1. [1]

   PRICE J: In the early hours of the morning on 31 December 2011, Matthew Hedges (the deceased) was hit in the chest by a single gunshot fired through a loungeroom window of his home at Chester Hill. The deceased had been near the window when the shot was fired at close range, inflicting a fatal wound. The murder weapon was a .357 Smith & Wesson Magnum revolver.

2. [2]

   Wassim Tiriaki (‘the applicant’) and Salim Tabbah stood trial before Schmidt J and a jury. They pleaded not guilty. Both accused gave evidence in the trial denying involvement in the murder.

3. [3]

   On 9 May 2014, the jury found the applicant guilty of murder and Salim Tabbah guilty of manslaughter.

4. [4]

   During the proceedings on sentence, there was no issue between the parties that, given the evidence and the two verdicts reached, the jury was satisfied that it was the applicant who fired the fatal shot. Schmidt J, in sentencing the applicant, found that he shot the deceased intending to either kill him or to inflict grievous bodily harm. Her Honour also found:

5. [5]

   Her Honour later said:

6. [6]

   The applicant was sentenced to a term of imprisonment with a non-parole period of 20 years, commencing on 5 June 2012 and expiring on 4 June 2032, with a balance of term of 8 years, commencing on 5 June 2032 and expiring on 4 June 2040. The earliest date that he is eligible for release on parole is 4 June 2032.

7. [7]

   Mr Tabbah was sentenced to a term of imprisonment with a non-parole period of 10 years, commencing on 6 March 2012 and expiring on 5 March 2022, with a balance of term of 4 years, commencing on 6 March 2022 and expiring on 5 March 2026. The earliest date that Mr Tabbah was eligible for release on parole was 5 March 2022.

The appeal against conviction

1. [8]

   The applicant appeals his conviction on the following ground;

   1. (1)

      There has been a miscarriage of justice by reason of the absence at the trial of the fresh evidence of Salim Tabbah.

2. [9]

   In an affidavit dated 10 December 2021, which annexes a letter dated 26 May 2021 to Catherine Hunter, a solicitor, Mr Tabbah deposes that he went to the deceased’s home with the applicant and it was he, not the applicant, who discharged the gun fatally killing the deceased. He maintains that the applicant did not know that he was armed.

3. [10]

   Mr Tabbah gave evidence in this Court, during which he stated that what he had written in his affidavit was true.

4. [11]

   Mr Tabbah’s evidence stands in stark contrast with his sworn testimony in the trial, during which he said that he had never been to the deceased’s home, he did not kill the deceased, and was not part of a plan to kill or rob him.

5. [12]

   The applicant submits that Mr Tabbah’s evidence in this Court is fresh evidence which was not available at the time of the trial. He seeks that his conviction be quashed and a new trial be ordered. As this ground of appeal does not raise a question of law alone, a grant of leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

The appeal against sentence

1. [13]

   The applicant also seeks leave to appeal against sentence on the following grounds:

   1. (1)

      Her Honour erred in finding that the offence was aggravated on the basis that it was part of a planned criminal activity.

   2. (2)

      Her Honour erred in finding that the offence was aggravated on the basis that it was committed in the presence of a child under 18 years of age.

2. [14]

   It will only be necessary to deal with these grounds of appeal if the applicant is unsuccessful in obtaining a new trial.

3. [15]

   I now turn to the evidence in the applicant’s trial. Should Mr Tabbah’s new evidence be found to be fresh evidence, the impact that this evidence may have had on the jury is to be considered in that context.

The Crown case at trial

1. [16]

   The Crown contended that it was one of the two accused who murdered the deceased, that if it was not the particular accused (the applicant or Mr Tabbah) who murdered him, that accused aided and abetted his co-accused who committed that murder, and if that was not established beyond reasonable doubt, the jury would be satisfied that the two accused were involved in an extended joint criminal enterprise during which one of them murdered the deceased, with the result that both were responsible for the murder.

A summary of the evidence called by the Crown in the trial

1. [17]

   In the trial there was a great deal of evidence, some of which related to the personal circumstances of the deceased, mobile phone and transmission tower records, which are not of particular significance to the issues in this appeal. Accordingly, this evidence has not been summarised.

2. [18]

   The first witness called by the Crown was police officer Eames, who was stationed at Bankstown Police Station on 30 December 2011. At about 1:40am, he received a call that there had been a shooting at Chester Hill. When he arrived at the property, he saw the deceased lying motionless on his back on the loungeroom floor and a standard size steak knife on the table in the dining room.

3. [19]

   Ronnie Cuthbert gave evidence that he was watching TV when he saw a shadow approach the window of the house, as if someone was coming into the yard from the front entrance. He stood up and walked towards the window, which was smashed as he approached it. He then turned around and ran to the deceased’s room to wake him up and alert him that something had “gone down”. The deceased went into the lounge room to investigate, while Ronnie went into the kitchen to grab a knife, thinking they were being robbed. When he had almost returned to the loungeroom, he heard a gunshot. Upon hearing this, Ronnie ran to lock the back door and call the police. He then went back to the lounge room to find the deceased lying on his back, having been shot in the upper chest. He believed the deceased was dead by this time.

4. [20]

   Manaia Cuthbert gave evidence that as he and Ronnie were watching a movie, they heard a rustle outside the window, but didn’t think much of it. Then they heard what sounded like the fly screen being taken off the window. Manaia heard a voice saying something like “let me in”, followed by the window being smashed. He followed Ronnie into the hallway, and went to his cousins’ (the deceased’s daughters) room to see if they were okay. Manaia saw Ronnie grab a knife from the kitchen, then heard a single gunshot. Prior to the shot, Manaia heard the deceased say something like, “oi, hey, hey, hey”. Manaia entered the lounge room to find the deceased lying on his back, with a single gunshot wound to his chest.

5. [21]

   Jessica Moffatt gave evidence that she was in bed with the deceased, not yet asleep, when Ronnie came in to wake him up saying someone was at the loungeroom window. The deceased jumped out of bed and went into the lounge room, while Jessica followed behind. The deceased said, “Who the F is there?”, immediately before the window was smashed and then someone shot through the window. She said that there was less than a second between the window being smashed and the shot being fired. She felt the heat of the bullet go past her arm, narrowly missing her. She gave evidence that she thought Ronnie and Manaia were on the lounge when the deceased was shot.

6. [22]

   Jodie Bush gave evidence that she was awoken by a loud bang sometime between 1:30am and 2am on 31 December 2011. She then heard running, followed by a lot of crying and screaming. She could not say for sure how many people she heard running, nor in any specific direction.

7. [23]

   Fatmi Al-Naboulsi gave evidence that she heard a loud bang at around 1:40am on 31 December 2011. She was awake with her newborn baby, trying to get her settled. After the bang, she heard what sounded like fast breathing and fast footsteps, like two people running on the road outside her house, towards the cul-de-sac (in a westward direction). In cross-examination she conceded that it could have been one person, but she had assumed it was two people because the footsteps and breathing were loud and quick.

8. [24]

   Mostafa Alameddine gave evidence that he saw a white Honda Civic driving down his street towards the cul-de-sac at around 11:30pm on 30 December 2011. He said that he had seen the car once before, a couple of weeks earlier. The car had red P plates and was occupied by one person. He believed the car drove up and down his street four or five times that night, between approximately 11:30pm and 12:10am. Around the time of the shooting, he had been woken up by his son, who had heard what sounded like firecrackers. He told him to go back to bed, having not heard any loud bangs personally.

9. [25]

   Jennifer Hedges gave evidence that she was living with the deceased at the time of the shooting and had gone to sleep at around 11pm on 30 December 2011. She was woken up sometime later in the night by everybody yelling and running around. She jumped up and, as she did so, heard a loud bang. She then ran out to the lounge room to see Matthew Hedges lying on the floor with a bullet through his chest.

10. [26]

    SC Lloyd attended the deceased’s home at 2:40am and took photos which included a flyscreen on the driveway and a broken window. The photos became Exhibit 11.

11. [27]

    She later went with Detective Sergeant Snow to the applicant’s brother’s house in Chester Hill, arriving at about 10:15am. A red Colorbond fence ran along the western side of the property, and next to that fence were three bins with yellow, green, and red lids respectively. She was told there were items of interest in the middle bin with the green lid, which was open when she arrived. The two rolls of duct tape positioned on the middle bin were in that position when she got there. Before she started taking things out of the bin, she was able to see a revolver. The items removed from the bin included an empty Ansell glove packet and a revolver. The revolver was a .357 Magnum Smith & Wesson. The serial number was partially obliterated but sufficiently visible to record the numbers N21101 and MOD.28-22, which were present inside the cylinder yoke recess. Inside the cylinder chamber were six cartridges in total; only one of the six had been fired. The fired cartridge case was located in the “12 o’clock position” inside the cylinder chamber. The barrel of the weapon had propellant particles, which indicated it had been fired. The revolver became Exhibit 13. Four live rounds and a spent cartridge case and projectile from the revolver became Exhibit 14. The spent cartridge case removed from the revolver, and the damaged bullet recovered from the loungeroom floor in the deceased’s home, became Exhibit 15.

12. [28]

    Other items found in the bin included the following:

    1. (1)

       A light blue hooded long-sleeved ‘Lonsdale’ zip jacket, size small with two front pockets, which became Exhibit 18. A cotton bud was found in the left front pocket.

    2. (2)

       A dark blue hooded long-sleeved ‘Champion’ jacket, size large, which became Exhibit 19. At the time, the sleeves were on the inside of the jacket.

    3. (3)

       Two face masks, comprising a full-face black Neoprene mask and a half-face black Neoprene mask , which became Exhibits 16 and 17.

    4. (4)

       A white cotton glove with a blue glove tucked inside it, and a grey T-shirt.

    5. (5)

       A pair of black fabric gloves, and three blue disposable gloves.

13. [29]

    SC Lloyd also saw a black knife, which was in a folded position on the grass nature strip at the front of a house a couple of doors down from the applicant’s brother’s house in Chester Hill.

14. [30]

    CSO Weldon had examined some of the exhibits, including the revolver. No fingerprints were detected on the gun. He took trace DNA swabs from the gun – namely one swab from the grip (on both sides); one swab from the trigger and trigger guard; and one swab of the hammer, sights, and cylinder release.

15. [31]

    He also examined the five live rounds recovered from the gun for fingerprints, and took a single DNA swab of them. No fingerprints were detected. He arranged for the swabs to be sent for testing.

16. [32]

    In cross-examination, he was asked by the applicant’s counsel:

17. [33]

    CSO Raymond examined and photographed a number of exhibits that were provided to her in January 2012. A bundle of relevant photos became Exhibit 20. She gave evidence about measures taken to avoid contamination of exhibits.

18. [34]

    Her evidence included developing a fingerprint on the duct tape roll found in the bin and developing two fingerprints on the Ansell glove packet. She also swabbed various items for DNA. Those items included the Ansell glove packet, the ‘Lonsdale’ jacket, the white cotton glove, the half-face mask, the black folding knife, and the Champion jacket. CSO Raymond gave evidence of sending examined items for fingerprint analysis and DNA testing.

19. [35]

    Melanie Lecompte was a Forensic Senior Technician who had examined some of the exhibits.

20. [36]

    She examined the Lonsdale jacket for DNA. Tape lifts were done, as were tests for blood stains. No blood stains were found. The same process occurred with the Champion jacket. It was examined and a tape lift was taken from the cuffs.

21. [37]

    She examined the two black gloves. DNA samples were taken from inside the right glove. A cutting was taken from the index finger (she thought from the tip), and also from the dorsal wrist area (the back part of the glove). The left glove was similarly examined and samples taken from it. Two tape lifts of the black full-face mask were taken. Further tape lifts were taken from the black half-face mask and from the grey t-shirt. All of the samples were sent to the Division of Analytical Laboratories for testing.

22. [38]

    Mahmoud Tiriaki gave evidence that in December 2011, he lived by himself in Chester Hill.

23. [39]

    At about 10pm on Friday 30 December 2011, he took some rubbish out from his house to the garbage bin and deposited it in the bin with the red lid. He went back inside and left shortly afterwards, leaving the house locked.

24. [40]

    The next morning, while still at his parents’ home, he saw a broadcast about a shooting that occurred in Chester Hill. He drove back to his house, arriving at about 9:40am. He entered through the pedestrian gate, checked his mail in the letter box, and put some pamphlets into the red bin. When he opened the red bin he saw some black duct tape which hadn’t been there the night before. He placed the tape on top of the red bin. He also noticed the green bin lid was not fully closed. He opened the green bin lid and saw some clothing, including two jumpers. He investigated further by removing one jumper, then he started removing the second jumper, which felt heavier, and as he unravelled it he noticed the butt of a gun. Once he saw the butt of the gun, he dropped it and walked over to his car, rang Bankstown Police Station, and waited for police to arrive. He did not touch the contents of the bin again.

25. [41]

    Before this, the last time he had seen the applicant was the previous day (30 December) at his parents’ home, between midday and 3pm, at which time the applicant was on his own. A key for his house was kept at his parents’ house, and the applicant would often take that key.

26. [42]

    In cross-examination, he said that the applicant was in a car accident on about 25 December 2011. The applicant had been taken to hospital. He saw him at home after he was discharged. The applicant couldn’t walk – he was on pain killers and in bed. The applicant had been in another car accident some years earlier, in about 2003 or 2004, following which he had issues with his lower back and had been attending hospitals and doctors ever since.

27. [43]

    Mr Tiriaki saw the applicant on 29 December 2011. He observed that the applicant “wasn’t mobile much at all”. The applicant had been “pretty much bed ridden” since the car accident.

28. [44]

    CSO Noble was a crime scene officer qualified in fingerprinting. On 8 March 2012, she received the applicant’s finger and palm prints which were taken on 6 March 2012, which she then compared with photos of items collected from the applicant’s brother’s house. The applicant’s left middle fingerprint was found on the Ansell glove packet, and his right index fingerprint was identified twice on the interior of the top roll of black duct tape. A palm print belonging to Mahmoud Tiriaki (the applicant’s brother) was found on the lid of the green bin. She explained the process of fingerprint comparison, and a demonstration chart became Exhibit 21.

29. [45]

    SC Dusting explained how the Smith & Wesson revolver works. To fire the gun there are two options – you can pull the trigger which cocks the hammer then fires the cartridge, or you can cock the gun manually and then pull the trigger to discharge it. The gun did not have an external safety catch. He test fired it using six cartridges. On the second time that he did so, he had difficulty discharging it – the release lever did not reset itself properly and had to be manually pushed to the rear to allow discharge – if it was not in the correct position it would not fire. He did not conduct any tests to determine whether or not it was subject to accidental discharge. As to the degree of pressure to pull the trigger – if the hammer was cocked by the operator, the trigger pull required was 1.52 kilograms. For a “double action” (where the hammer is not manually cocked by the operator but is cocked by the trigger), the trigger pull required 5.86 kilograms. He also examined the fired cartridge case. It was a Winchester .357 calibre cartridge. He examined the impact damaged fired bullet recovered from the lounge room floor.

30. [46]

    Mhorag Campbell was a forensic biologist with DAL. She explained the process of DNA testing. She received buccal samples from the applicant, Salim Tabbah, Mahmoud Tiriaki, Omar Alameddine, and Imran Chahal.

31. [47]

    Ms Campbell gave evidence that numerous items were forensically examined for fingerprints and DNA. Many did not return any positive fingerprint matches or contain enough sample DNA to provide any forensic value. Ms Campbell’s evidence of the items that held forensic value is summarised as follows:

32. [48]

    Almost all items tested either did not contain any fingerprints to be analysed, or only contained a partial print that could not be determinative of any one individual. Only three exhibits returned positive matches:

    1. (1)

       The duct tape roll found in the bin – fingerprint matched to the applicant.

    2. (2)

       The empty Ansell glove packet found in the bin – fingerprint matched to the applicant.

    3. (3)

       The Green bin itself where the items were found – fingerprint matched to the applicant’s brother, Mahmoud Tiriaki.

33. [49]

    Of the items tested for DNA, many returned positive matches for both the applicant and Mr Tabbah. While a DNA match cannot be confirmed with 100% certainty (because the entire population has not had their DNA logged and recorded), results were given with a confidence level based on how likely it would be that another individual may be able to provide the same matching profile.

    1. (1)

       Duct tape roll – DNA on the top and bottom of the roll was matched to the applicant – profile expected to occur in 1 in 10 billion members of the general population.

    2. (2)

       Smith & Wesson Revolver – DNA from the grip, and the trigger/trigger guard was matched to the applicant – profile expected to occur in 1 in 10 billion members of the general population.

    3. (3)

       Lonsdale jacket – DNA from the zipper and tag was matched to the applicant – profile expected to occur in 1 in 10 billion members of the general population. DNA from the inside cuffs could not exclude the applicant or Mr Tabbah from having contributed, with a combination of their DNA being the most likely to lead to the specific mixture found.

    4. (4)

       Cotton bud from pocket of Lonsdale jacket – DNA was matched to the applicant – profile expected to occur in 1 in 10 billion members of the general population.

    5. (5)

       Black gloves – DNA was sampled from four distinct sites on each glove, with eight samples in total being taken. All eight samples were matched to the applicant, with the profile expected to occur in 1 in 10 billion members of the general population.

    6. (6)

       Folding knife – DNA was sampled from the blade edge/join area, and the handle of the knife. Both were matched to the applicant. The profile from the blade edge/join area is expected to occur in 1 in 10 billion members of the general population. The profile from the handle was expected to occur in 1 in 3.4 million members of the general population.

    7. (7)

       Full-face mask – DNA was sampled from the inside mouth area, and the outside mouth area. The inside sample was matched to the applicant, with a profile expected to occur in 1 in 10 billion members of the general population. The outside sample was a mixture of two individuals. The applicant could not be excluded as a contributor. Assuming the applicant was a contributor, the second contributor was narrowed to Mr Tabbah, with a profile expected to occur in 1 in 10 billion members of the general population.

    8. (8)

       White cotton glove (found with blue glove inside) – DNA sampled could not exclude the applicant or Mr Tabbah as contributors.

    9. (9)

       Blue glove (found inside white cotton glove) – DNA from two samples taken from the index finger were matched to Mr Tabbah – profile expected to occur in 1 in 10 billion members of the general population.

    10. (10)

        Champion jumper – DNA from the cuffs, a stain on the front left, and a stain on the front right were all matched to Mr Tabbah – profile expected to occur in 1 in 10 billion members of the general population.

    11. (11)

        Half-face mask – DNA sampled from the inside mouth area was matched to Mr Tabbah – profile expected to occur in 1 in 10 billion members of the general population.

34. [50]

    Joanne Pryke gave evidence that of the 11 glass fragments found in the debris from the blue Lonsdale jumper, 9 were consistent with the sample of glass from the deceased’s home.

35. [51]

    The National Archives of Australia building is positioned to the immediate north-west of the street in which the deceased’s house was located. CCTV footage time stamped at around 2am, shortly after the estimated time of the shooting, captured two men running north along Miller Road.

Salim Tabbah’s case

1. [52]

   Salim Tabbah’s case was that he knew nothing about the murder of the deceased and played no part in it; that the technical and scientific evidence in the Crown case was incapable of establishing his presence at the shooting; and the DNA evidence was unreliable.

2. [53]

   Mr Tabbah gave evidence that he did not kill the deceased, nor was he part of a plan to kill or rob the deceased. Prior to being charged with the offence, he did not know the deceased and had never heard of him. He had never been to the deceased’s home and had never heard of the deceased’s address.

3. [54]

   He was asked about the following exhibits found in the bin at the applicant’s brother’s house:

   1. (1)

      He was shown Exhibit 19 (the ‘Champion’ jumper). He recognised the jumper as his. He wasn’t “really sure” when he bought it. He had nothing to do with it ending up in the bin and he didn’t know how it got there. He used to use the jumper at boxing training or at the gym. He didn’t know the jumper had gone missing until he was arrested and he saw it in the brief: “…out of all the other items that they said that belong to me, it had my DNA, that’s the only item that I recognised to be mine”. It was an old jumper and was “pretty worn out”.

   2. (2)

      He was shown Exhibit 17 (the half-face mask). He did not recognise the mask and had never worn it. He had nothing to do with it ending up in the bin.

   3. (3)

      He was shown Exhibit 16 (the full-face mask). He did not recognise the mask and had never touched or worn it. He had nothing to do with it ending up in the bin.

   4. (4)

      He was shown Exhibit 18 (the ‘Lonsdale’ jumper). He did not recognise the jumper and had never worn it. He had nothing to do with it ending up in the bin.

   5. (5)

      To his knowledge, he had never worn the blue gloves found in the bin.

4. [55]

   Cross-examination by the Crown Prosecutor included the following:

The applicant’s case

1. [56]

   Prior to the trial, the applicant served an alibi notice indicating that at the time of the shooting he was not present at or in the vicinity of the deceased’s home. It was his case that he was, at that time, at his brother’s house; that his physical condition was inconsistent with the CCTV footage taken outside the National Archive shortly after the shooting which showed two people running from the direction of the deceased’s home; and that the presence of his DNA found on the items in the garbage bin was explained by his evidence of Mr Chahal’s involvement.

2. [57]

   The applicant gave evidence that on 31 December 2011 he was living at Bankstown with his mother, father, and three sisters, plus his brother who sometimes lived there.

3. [58]

   Following a car accident in 2002, he was admitted to hospital for several hours. He subsequently saw numerous physiotherapists for his back pain. He had “medical attention throughout pretty much my whole teenage life”. As at the latter half of 2011, he was in pain when he walked, and was not able to run.

4. [59]

   In 2011 he was seeing a chiropractor and had treatment for twelve weeks until 20 October 2011, which helped his mobility. By early December 2011 he was working and was able to jog and power walk, but not fully run.

5. [60]

   The applicant gave evidence of a motor vehicle accident on 25 December 2011, following which he was taken by ambulance to hospital and discharged after four or five hours.

6. [61]

   Prior to this accident he had not been working “as like a full-time job”, as every boss he had would have to excuse him during the daytime as his back would be hurting. He would have trouble sleeping. He wasn’t taking medication, but he would smoke pot which would help his back pain and help him sleep. The places he smoked pot included at his brother’s house. Following this accident, he was stiff throughout his back for two weeks and he self-medicated.

7. [62]

   He met Mr Chahal in 2011, who he saw from time to time. They were in contact by phone. Mr Chahal bought and sold cars, which the applicant started working on.

8. [63]

   He had never met or heard of the deceased, and had never been to the street in which the deceased lived. He had seen Salim Tabbah around the Bankstown area but they had never spoken.

9. [64]

   On the morning of 30 December 2011, the applicant was at home. He woke up at midday, had breakfast, and “…went down to the garage at mum’s house and I was in pain so I was relaxing, playing PlayStation throughout the afternoon”. The applicant wasn’t able to work, and he had two customers’ cars in the backyard of his parent’s place which needed to be repaired. He was trying all day to call his panel beater friend to come over and finish the work on the cars, as the customers were waiting for them. He arranged for his cousin Hilal to pick him up from his brother’s house at about 2:30am, where he intended to “kick back, get stoned”.

10. [65]

    His sister Sarah dropped him at his brother’s house after 10pm. He didn’t have any keys to the house so he went to the garage where there were couches. He had taken a laptop and his “special medication” with him. He was on YouTube and surfing the internet all night. The applicant said:

11. [66]

    He got off the phone and went outside and was walking up the driveway when a dark car, which was either a Commodore or a Falcon, pulled up two houses down from his brother’s house. The applicant then described what happened when the dark car pulled up:

12. [67]

    He started walking back towards the garage with the items and he realised the clothing was heavy. He dropped them and looked through one of them and found the butt of a gun. He wrapped it back into the jumper. The applicant was “stoned” and his heart was pumping with adrenaline because of the gun. He then put the items into the bin and closed it and went straight into the garage. He didn’t notice what items there were at the time other than the gun. He had placed the items in the middle bin.

13. [68]

    An hour later he called his cousin to find out where he was and gave instructions on the quickest way to get to his brother’s house. His cousin came and the applicant went back to his mum’s house in Bankstown, getting there at about 3 or 3:30am. Defence counsel asked:

14. [69]

    In the days and weeks after 30 December, he spent time either at home or at his mate’s shop to see how the cars were going, and with Mr Chahal. He did not become aware that the material he put in the bin at Mr Chahal’s request had been linked with the murder of the deceased. He still saw Mr Chahal on a daily basis from 31 December onwards. The applicant kept his “mouth shut” as Mr Chahal had told him to do, and “just went on”. The applicant was arrested on 6 March 2012 at home.

15. [70]

    He said he had told the jury everything. He never went near the vicinity of the deceased’s house. He was not one of the two people running north in the CCTV footage.

16. [71]

    He was asked about the knife on which his DNA was found. He had not seen the knife before and was unable to account for his DNA being on it, but he explained that when he saw the brief he realised the knife was located where the car Mr Chahal was in had pulled up, so he assumed he may have dropped the knife when walking back, but he could not recall. When he went back to his parents’ place on the 31st he went to sleep after first speaking to his girlfriend in Greece. He spent the rest of that day in Bankstown.

17. [72]

    Cross-examination by the Crown Prosecutor included the following:

18. [73]

    He was cross-examined in detail about how he collected the items from the back of the car, the moments that followed, and how he then placed them into the bins. He was asked about how he searched through the items before discovering there was a gun amongst the items. He said he had picked up the gun in one hand. He denied that he was making up his evidence to explain why his DNA was on the items.

19. [74]

    He confirmed his evidence that Mr Chahal had instructed him to keep the items and that Mr Chahal had said he would be back shortly to collect them. He agreed that by putting them in the garbage bin he was effectively getting rid of them and therefore would not have been able to return them to Mr Chahal.

20. [75]

    Sarah Tiriaki, the applicant’s sister, gave evidence of the car accident in about 2002/2003, when the applicant suffered neck and back injuries. She said that he went to the Back Clinic and to General Practitioners. She would drive him around, as he did not have a licence. She described the applicant’s car accident on Christmas day 2011, following which she observed his mobility to be “limited”.

21. [76]

    On 30 December 2011 the applicant had wanted to go to his brother’s house after 10pm, so she drove him there. She saw him again the next morning at home.

22. [77]

    In cross-examination, she said that the applicant’s mobility was limited – he would not be able to kneel on both knees because it would be too painful. She had never seen him running. She could not remember what he was wearing when she dropped him at his brother’s house.

23. [78]

    Ms Hooper gave evidence of her relationship with the deceased and his dealings with prohibited drugs.

How the Crown case was left to the jury

1. [79]

   In respect of each accused, Schmidt J instructed the jury on murder and on an alternative verdict of manslaughter by an unlawful and dangerous act on three bases:

   1. (1)

      The accused’s own act

   2. (2)

      Aid and abet

   3. (3)

      Extended joint criminal enterprise.

2. [80]

   In her summing up, Schmidt J told the jury that the Crown case was circumstantial, that the Crown contended that one of the accused shot the deceased, and the other aided and abetted in that shooting. Schmidt J said:

3. [81]

   On extended joint criminal enterprise manslaughter, the jury was instructed that an essential element of the offence the Crown was required to prove was:

4. [82]

   As to aid and abet manslaughter, the jury was instructed that an essential element of the offence the Crown was required to prove was:

The hearing of the applicant’s appeal against conviction

1. [83]

   In this Court, Mr M Thangaraj SC with Mr S Parasingham appeared for the applicant and Mr E Balodis appeared for the Crown.

2. [84]

   Mr Tabbah’s affidavit was read and he gave oral evidence, which included cross-examination by Mr Balodis. The applicant also read the following affidavits:

   1. (1)

      An affidavit of Sara Black, solicitor, dated 14 March 2022;

   2. (2)

      An affidavit of Carmen Huynh, forensic psychologist, dated 19 October 2022;

   3. (3)

      An affidavit of Ahmed Kilani, chaplain, dated 19 October 2022;

   4. (4)

      An affidavit of Sara Black, solicitor, dated 4 November 2022.

3. [85]

   None of these deponents were required for cross-examination by the Crown.

4. [86]

   The Crown read an affidavit of Michael Jones, solicitor, dated 14 November 2022.

5. [87]

   In his affidavit, Mr Tabbah noted that on 26 May 2021, he sent a handwritten letter to the applicant at Lithgow Correctional Centre, which was annexed and marked “ST1”.

6. [88]

   Attached to this letter was a document typed by Mr Tabbah’s Legal Aid solicitor, Ms Catherine Hunter, which was then signed by Mr Tabbah and witnessed by a Justice of the Peace at Long Bay Correctional Centre.

7. [89]

   At the beginning of the letter, Mr Tabbah stated that it was being written as an “account of what really happened the night when Matthew Hedges was innocently killed”.

8. [90]

   He listed his reasons for writing the letter as follows:

9. [91]

   Mr Tabbah stated that he met the applicant through a friend, who he would not disclose the name of “as I feel if I do my life and the life of those I care for will or could be harmed”. A debt was owed to this friend by Mr Hedges.

10. [92]

    The arrangement was that Mr Tabbah “would go to Matthew’s house and no one was supposed to be home but there could have been a possibility they would be there or come home while we went there and Wassim would come with me and he would break into the house, get the drugs and money and we would leave.” Mr Tabbah stated that he was supposed to go and ensure that the applicant was protected if Mr Hedges or any other occupants returned home.

11. [93]

    The night of the offending Mr Tabbah met with the applicant and another friend at the applicant’s brother’s house. He was taken to the house where he saw the applicant. Upon arriving at the home, Mr Tabbah saw face masks and gloves on the table for him.

12. [94]

    In describing how he came into possession of the firearm, Mr Tabbah stated that as he went to grab his mask, he saw a gun and “instantly I was triggered by paranoia. I don’t know what happened to me, all sorts of paranoid thoughts were coming to my mind. The main ones were this guy i.e. Matthew is a drug dealer, he might have a gun or someone there might have one so I panicked and grabbed the gun just to feel safe.”

13. [95]

    Mr Tabbah continued:

14. [96]

    Mr Tabbah described that he and the applicant then drove to the home of Mr Hedges. As they approached the home, the applicant said “Let me go and you just wait outside”, to which Mr Tabbah agreed.

15. [97]

    Whilst waiting shortly after, Mr Tabbah heard:

16. [98]

    Mr Tabbah described that he then “froze for a couple of seconds and then ran back to the car. Wassim was panicking going off saying “What did you do? Why did you bring a gun?” I told him to shut up and drive. I didn’t know what to say.”

17. [99]

    Mr Tabbah stated that he and the applicant then drove back to the applicant’s brother’s house. Mr Tabbah stated that “I took off my jumper, face mask and put it on the floor and the gun on top. Then I chucked the gloves on the floor next to them. I then told Wassim to chuck everything out and I walked off outside.”

18. [100]

    Shortly after, the applicant came out and was in shock. Mr Tabbah said, “Don’t talk to me and just drop me back in my area”, which the applicant did. Mr Tabbah noted he exited the car and did not see the applicant again until he was arrested.

19. [101]

    Mr Tabbah stated that “from day one I wanted to tell the truth but my lawyer at the time advised me that the truth would not be believed i.e. it was an accident, and I have a better chance at fighting the charge so I took his advice”.

20. [102]

    He went on to say:

21. [103]

    Mr Tabbah then concluded:

22. [104]

    Mr Tabbah clarified that his fingerprints were not found on the gun as he was wearing gloves. He also noted that no glass was found on his jumper as he was further away from the applicant keeping a look out when the glass was smashed.

23. [105]

    Mr Tabbah also noted that the applicant had made attempts for him to come forward prior to the trial to tell them this account. Mr Tabbah noted that he did “somewhat threaten Wassim pre-court to keep his mouth shut at the time”.

24. [106]

    Mr Tabbah confirmed in his affidavit that he had obtained independent legal advice and acknowledged the potential legal consequences of writing the letter to the applicant and its use in any appeal proceedings. Mr Tabbah noted “I want to make it clear that the legal consequences of writing the letter are irrelevant to me, and the only important thing is that I tell the truth.”

25. [107]

    Mr Tabbah also acknowledged that he may be required to give evidence in relation to his affidavit and the letter provided to the applicant. He indicated his willingness both to give evidence and to submit to cross-examination.

26. [108]

    In addition to informing Ms Hunter, Mr Tabbah stated in his affidavit that over the years he had also told his previous Legal Aid Solicitor, Janet Witmer, as well as his psychologist at Long Bay Correctional Centre, Carmen Huynh, of this account of events. He recalled that he had told Ms Witmer this account and her advice was to “tell the truth and say what happened”.

27. [109]

    In the affidavit, Mr Tabbah also supplemented and clarified a number of statements that had been made in the letter.

28. [110]

    He confirmed that when he first entered the home, he did not see the applicant. He noted he entered the front section of the home with a friend and saw the items waiting there.

29. [111]

    He noted that he put the gun in the waist of his pants and at this time he did not know where the applicant was. He added that he did not tell the applicant about the gun at that time, or any time before the deceased was shot.

30. [112]

    In relation to paragraph [97] above, Mr Tabbah added that he pulled the gun from the waist of his pants. He stated that it had been strapped there. He was wearing a shirt and jumper over it. The gun could not be seen. He stated that the time between pulling out the gun and discharging it took only a matter of seconds.

31. [113]

    In relation to paragraph [98] above, he added that after firing the gun he ran back to the car and put it on the side of his hip, but was not exactly sure where.

32. [114]

    In relation to paragraph [99] above, he added that when he told the applicant to chuck everything out, he could not remember whether the applicant was wearing gloves. It was dark and he just told him to chuck it out. He did not remember the applicant putting the gloves on and did not see him throwing the jumper, face mask, and gun in the bin.

33. [115]

    In relation to paragraph [105] above, Mr Tabbah described that while being housed together following their arrest, he told the applicant “if you go against me, it won’t be good for you” and to “just fight the charge and see what happens”.

34. [116]

    An affidavit was sworn by Ms Janet Witmer on 4 November 2021. Ms Witmer is a solicitor employed by Legal Aid NSW.

35. [117]

    Ms Witmer stated that in 2016, Mr Tabbah applied for Legal Aid to appeal against both his conviction and sentence. Ms Witmer was allocated the file and assumed carriage of the matter.

36. [118]

    On 22 June 2016, Ms Witmer attended a video link conference with Mr Tabbah to discuss the progress of his application. Ms Witmer noted that during this conversation, Mr Tabbah became increasingly upset and agitated, then disclosed that he had been the one who had shot the victim, not the applicant. He advised Ms Witmer that he “wanted to set this right”.

37. [119]

    Ms Witmer’s handwritten notes, which were later typed up, were annexure “A” to the affidavit. In these notes, Ms Witmer stated “He wants to clear his conscience. He also thinks it is wrong that the family don’t know who actually killed their son – and don’t understand why – that he [sic] was an accident. He only took the gun along because he was very paranoid that a drug dealer would have a gun and it was for protection – and he didn’t mean to – when the victim kept coming towards the window after he had raised the gun to frighten him – he thought the victim must have a gun himself and panicked.”

38. [120]

    In her affidavit, Ms Witmer stated her intentions were to see Mr Tabbah at Goulburn Gaol to take a detailed statement, and then to assign him to a private solicitor to carry the matter forward, as she believed she was likely to be a witness should the matter proceed.

39. [121]

    The intended visit did not occur as Mr Tabbah contacted her and asked if she would wait until returning from leave as “he needed to clear his head”.

40. [122]

    Ms Witmer next spoke to Mr Tabbah by video link on 10 August 2016. During this conference, Mr Tabbah said that he was still committed to going ahead with “righting the situation”. Ms Witmer’s notes of this conference were annexure “B” to her affidavit.

41. [123]

    In these notes, Ms Witmer wrote:

42. [124]

    Mr Tabbah then requested to be assigned to a solicitor. This request was accepted by Ms Witmer and he was assigned to another solicitor.

43. [125]

    Ms Witmer did not have any further contact with Mr Tabbah until on or about 16 March 2021, when he telephoned her and said that he still wanted to go ahead with assisting the applicant in having his murder conviction overturned. Ms Witmer informed Mr Tabbah that she would make enquiries and, if possible, for him to be assigned to a private solicitor for assistance and advice. Mr Tabbah’s matter was then assigned to Ms Catherine Hunter.

44. [126]

    Ms Black’s affidavit dated 14 March 2022 relates to the applicant’s application for extension of time.

45. [127]

    In her affidavit dated 4 November 2022, Ms Black annexed the following material:

    1. (1)

       A copy of Mr Tabbah’s corrective services inmate profile

    2. (2)

       A copy of a letter written by Terry Watts CC Area Manager at Metropolitan Remand and Reception Centre dated 8 August 2013

    3. (3)

       A copy of the Psychology Participant information statement and consent form

    4. (4)

       A copy of the VOTP referral, assessment and treatment manual form

    5. (5)

       A copy of an extract from the document titled ‘VRS Time 1 Pre-Treatment’

    6. (6)

       Extracts from the document titled ‘VOTP Progress Note’

    7. (7)

       A document titled ‘Offence Mapping’

    8. (8)

       Extracts from a document titled ‘VOTP treatment manual – thoughts and beliefs’

    9. (9)

       Extracts from a document titled ‘Perspective Taking’

    10. (10)

        Extracts from a document titled ‘Reflective Journal’

    11. (11)

        A copy of Mr Tabbah’s completion certificate for the VOTP program

    12. (12)

        A copy of Mr Tabbah’s pre-release report written by Melissa Ryan dated 8 December 2021.

46. [128]

    Ms Carmen Huynh, employed by the Department of Corrective Services as a Forensic Psychologist in the Violent Offenders Treatment Program (‘VOTP’), swore an affidavit on 19 October 2022.

47. [129]

    Ms Huynh stated that she met Mr Tabbah in July 2020, when he arrived at the VOTP unit at Long Bay Correctional Centre. Mr Tabbah had requested to participate in the program. Upon entering the program, Ms Huynh became one of Mr Tabbah’s psychologists.

48. [130]

    During an interview that occurred between September and October 2020, Ms Huynh noted that Mr Tabbah told her his version of what took place in relation to his offences. Ms Huynh noted that this account differed from what was outlined in the official court documentation.

49. [131]

    Ms Huynh stated that Mr Tabbah said that he was the one in possession of the firearm and that he had shot the victim out of panic. He said that he accepted responsibility for killing the victim and the court papers which stated that the applicant was the one who shot the victim were wrong.

50. [132]

    Ms Huynh then sought clinical supervision with a Senior Psychologist on the team. It was ultimately determined that it did not need to be disclosed or taken to the authorities as “it was not uncommon for participants to recount events that were inconsistent with the official documentation”.

51. [133]

    Mr Tabbah told Ms Huynh that it was his intention to present this information to a solicitor and that he wished to clear the applicant’s name. Mr Tabbah also requested a referral to the Restorative Justice Unit, in an attempt to speak to the family of the victim. This request was ultimately denied due to the appeal process and the inconsistencies between the official documentation and his version of what took place.

52. [134]

    Mr Tabbah’s treatment was officially completed on 22 December 2021, but he remained in the unit until about April 2022. Ms Huynh stated the intention was for Mr Tabbah to be released on parole in March 2022 from the VOTP program, however his parole was refused.

53. [135]

    Mr Ahmed Kilani, employed by the Department of Corrective Services in the Chaplaincy Services branch, swore an affidavit on 19 October 2022.

54. [136]

    Mr Kilani first came into contact with Mr Tabbah at the Goulburn High Risk Management Unit around March 2015.

55. [137]

    Upon Mr Tabbah being transferred to Long Bay Correctional Centre in 2018 or 2019, Mr Kilani saw Mr Tabbah “quite a lot”.

56. [138]

    During a session at Long Bay in 2019, Mr Tabbah told Mr Kilani that there was “something he wanted to come forward with, to confess and to get off his conscience”.

57. [139]

    Mr Kilani noted Mr Tabbah had told him during one of these sessions “that he was the one who was responsible for killing the victim in the matter where he was convicted of manslaughter”.

58. [140]

    Mr Kilani stated that “it was something he wanted to make right, and that he knew he could get extra time by coming forward, but that he did not care, as it was something he needed to do”. Mr Kilani informed Mr Tabbah that if it was important to him and he was serious about his version of events, that he needed to make peace with it and go through the proper legal channels. Mr Kilani did not keep a record of the conversations with Mr Tabbah.

59. [141]

    Mr Kilani noted that he spoke with Mr Tabbah about his account a few more times, and in one of the later sessions he was told by Mr Tabbah that he had spoken to his lawyers and sent a letter to the applicant.

60. [142]

    In his affidavit dated 14 November 2022, Mr Jones, solicitor for the Office of the Director of Public Prosecutions, annexed the following materials:

    1. (1)

       The applicant’s alibi notice

    2. (2)

       An updated bail report of Mr Tabbah

    3. (3)

       Material produced by the Department of Justice at applicant’s behest

    4. (4)

       A copy of the VOTP functional analysis interview

    5. (5)

       A document titled ‘Offence Mapping’

    6. (6)

       A copy of a handwritten account by Mr Tabbah titled “Index Offence”.

The applicant’s submissions

1. [143]

   The applicant submitted that Mr Tabbah’s evidence in his affidavit and oral testimony in this Court was fresh evidence that was not available at the trial. The applicant pointed out that Mr Tabbah had explained that he did not tell the truth at the trial because he had a “criminal mentality”, even though he knew it was wrong not to say anything about his involvement in the deceased’s death.

2. [144]

   In oral submissions, Mr Thangaraj submitted that “the evidence was patently fresh because it’s a sworn admission.” [9]

3. [145]

   The applicant submitted that Mr Tabbah’s evidence was credible because of his disclosure to his lawyers at least five years ago; Mr Tabbah did not have a close relationship with the applicant, nor a motive to assist him. Ms Witmer’s affidavit revealed that he had disclosed to her the circumstances of his involvement on 22 June 2016 and his desire to take responsibility at the further meeting on 10 August 2016. There were further disclosures to his psychologist, as well as his current lawyer.

4. [146]

   The applicant argued that the consistency in spontaneous disclosure over a number of years documented by the contemporaneous notes of his lawyer supported the credibility of Mr Tabbah’s evidence.

5. [147]

   The absence of a motive to assist the applicant and the disclosure being contrary to Mr Tabbah’s own self-interest were further reasons supporting Mr Tabbah’s credibility. Mr Thangaraj emphasised that “Mr Tabbah has a lot to lose by coming forward.” [10]

6. [148]

   Mr Thangaraj contended that the Corrective Services material demonstrated that Mr Tabbah had a propensity to violence which was consistent with the Crown case that whoever fired the shot did so deliberately. He also pointed out that the tendered material in Ms Black’s second affidavit showed that Mr Tabbah “had a predisposition to over assessing and responding disproportionately…” [11]

7. [149]

   The applicant contended that Mr Tabbah’s evidence was credible or not incapable of belief when considered with other evidence in the trial. The applicant pointed out that the Crown case at trial was that the Crown could not say positively which accused fired the bullet. It was submitted that Mr Tabbah’s account that the applicant was not aware of the firearm and did not discharge it, would not be enough to maintain his conviction for murder or manslaughter as advanced by the Crown.

8. [150]

   Furthermore, the applicant argued that the DNA and other objective evidence, including the pieces of fragmented glass on the Lonsdale hooded jumper in the Crown case, did not contradict Mr Tabbah’s evidence. The DNA evidence supported the applicant’s presence at the time of the murder but did not prove his awareness of the firearm or participation in the shooting.

9. [151]

   The applicant submitted that Mr Tabbah’s evidence supported a significant possibility that the jury, acting reasonably, would have acquitted him.

10. [152]

    Another submission was “accepting that [the applicant] gave evidence at the trial in accordance with what is contained in the Tabbah affidavit and annexure ST1, there is a significant possibility that the jury, acting reasonably, would acquit the applicant given the significance of the evidence, notwithstanding that the applicant himself gave a version that is inconsistent with [Tabbah’s] evidence.”

11. [153]

    The applicant contended that where the Crown itself could not definitively say which of the accused shot the deceased, it left open a significant possibility that the jury would have acquitted him having regard to Mr Tabbah’s evidence that it was he who shot the deceased.

12. [154]

    As to the DNA found on the trigger and trigger guard of the revolver, Mr Thangaraj submitted that a single swab was taken off two areas and “all that proved was the DNA was on one of those areas. There is no evidence of [the applicant’s] DNA being on the trigger. It’s either on the trigger or the trigger guard.” [12]

13. [155]

    Mr Thangaraj argued that the Crown’s “so what” submission should be rejected. It would not be inevitable that the applicant would be convicted of murder if it was accepted that Mr Tabbah shot the deceased.

The Crown’s submissions

1. [156]

   The Crown submitted that this appeal was not simply a matter of some evidence, recently available and recently relied upon at an appeal. The requirement that there was a miscarriage of justice needed to be considered. The applicant’s submission of miscarriage should be considered in the light of his forensic decision to give evidence in which he denied involvement in the shooting.

2. [157]

   As to the applicant’s contention that Mr Tabbah’s new evidence was fresh, the Crown argued that the applicant knew exactly where he was when the deceased was shot and his state of knowledge at the time, yet he gave an account that was deliberately wrong. The Crown submitted that it was always open to the applicant to have a case inconsistent with Mr Tabbah’s case at trial and admit that he and Mr Tabbah had planned a robbery.

3. [158]

   The Crown referred to Mr Tabbah’s evidence as being a recantation of the evidence he gave at trial and cited Davies and Cody v The King (1937) 57 CLR 170 (‘Davies’) at 183-184 where the High Court explained that recantation evidence must be treated with extreme caution.

4. [159]

   The Crown submitted that this Court may reach a conclusion that Mr Tabbah was so untrustworthy that his new evidence would be rejected. A further contention was that this Court should follow what Giles JA said in R v Bikic [2002] NSWCCA 227 at [281]:

5. [160]

   The Crown submitted that to make out a miscarriage of justice, the applicant should show that Mr Tabbah’s new evidence is “of impeccable credibility and manifest cogency even though the applicant only seeks a re-trial and not an acquittal”. The Crown argued that the test the applicant contends and which usually applies when fresh evidence is relied upon “of a significant possibility of acquittal is… an inapt test for whether there was a miscarriage of justice in the subject case”.

6. [161]

   In oral submissions, Mr Balodis argued that Mr Tabbah’s evidence was not capable of belief. He referred to Mr Tabbah’s evidence in this Court as failing in the surrounding detail. When he was pressed on detail, Mr Tabbah went into “explanation, assumption and the like”. [13]

7. [162]

   Mr Balodis pointed out that the applicant had not recanted his evidence given at trial and had not even explained the effect of any threat made to him by Mr Tabbah.

8. [163]

   A further argument was that the jury’s verdict, which in effect was whoever fired the shot was guilty of murder and who did not was guilty of manslaughter, was not binding on this Court.

9. [164]

   The Crown submitted that it would be open to conclude that the applicant was guilty of the deceased’s murder on the other two bases upon which the Crown relied at trial, even if it was Mr Tabbah who shot the deceased.

10. [165]

    Mr Balodis submitted that the manslaughter direction given by the trial judge required the finding by the jury that Mr Tabbah knew of the presence of the gun.

Legal principle

1. [166]

   The authorities concerning fresh evidence commence with the oft-quoted statement of Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 (‘Ratten’) at 518-520 (McTiernan, Stephen and Jacob JJ agreeing):

2. [167]

   The principles stated by Barwick CJ in Ratten were re-affirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason CJ at 674-6.

3. [168]

   In R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 (‘Abou-Chabake’), Kirby J summarised the principles established by the authorities at [63] as follows:

4. [169]

   More recently, in Rogerson v R, McNamara v R [2021] NSWCCA 160 (‘Rogerson’), the Court (Bell P, R A Hulme J and Beech-Jones J) said at [458]-[462]:

Consideration

1. [170]

   The success of the applicant’s appeal depends on the evaluation of Mr Tabbah’s evidence. His testimony during the trial was deliberately false. The caution with which his evidence is to be approached is emphasised by what was said by the High Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) in Davies at 183:

2. [171]

   The applicant gave evidence before the jury which stands in stark contrast with Mr Tabbah’s evidence that he was present at the shooting. He testified that he was elsewhere at the time and provided an account of how his DNA and fingerprints were present on items found in the bin. Both his sister and brother supported his evidence of the disabilities that he suffered so as to reject the Crown’s contention that he was one of the two men captured on CCTV footage running from the crime scene.

3. [172]

   The applicant did not give evidence during the appeal, either orally or by affidavit, supporting Mr Tabbah’s evidence. He has not resiled from his testimony before the jury.

4. [173]

   It is important at this early stage to reject the applicant’s contention that Mr Tabbah’s new evidence should be evaluated on the basis that the applicant’s evidence at re-trial would be given in accordance with Mr Tabbah’s new evidence. There is simply no evidence before this Court that he would do so. This contention is directed at the third limb of the test of fresh evidence. It is well settled that Mr Tabbah’s evidence is to be evaluated in the context of the evidence given in the trial, which includes the applicant’s evidence. As Rich and Dixon JJ observed in Craig v The King (1933) 49 CLR 429 at 439:

5. [174]

   In Gallagher, Mason and Deane JJ said at 402:

6. [175]

   Turning to the first limb of the test of fresh evidence, the Crown argues that Mr Tabbah’s new evidence is not fresh evidence as the applicant knew when and how the deceased was shot, yet he gave an account that was deliberately wrong. I understand the Crown’s submission to be that the evidence is not fresh as it was available to the applicant at that time.

7. [176]

   Although Mr Tabbah’s evidence was in existence at the time of the trial (if he had not committed perjury), the applicant could not have anticipated in the preparation of his case that Mr Tabbah would admit that he was present at Chester Hill and shot the deceased.

8. [177]

   In my opinion, Mr Tabbah’s evidence is fresh evidence.

9. [178]

   The second limb is an evaluative test of the fresh evidence. The Crown’s contention that the applicant must show that Mr Tabbah’s evidence is “of impeccable credibility and manifest cogency” is contrary to authority and must be rejected. [14] The question is whether his evidence is apparently credible or capable of belief.

10. [179]

    The reasons for his confession are advanced by him in the following ways:

    1. (1)

       From a deep reflection of his Islamic faith, he has understood that no greater injustice can be done than taking another person’s life. He has felt guilty ever since the murder. His faith was his main motivation for coming forward;

    2. (2)

       Another injustice has been the deceased’s family not knowing what happened as they believe it was the applicant who shot him. The deceased’s family deserve to know;

    3. (3)

       The applicant was wrongly convicted of something he did not do and Mr Tabbah must do the right thing by his religion, the victim’s family, and the applicant; and

    4. (4)

       By telling the truth, he will start a fresh life and get rid of his past.

11. [180]

    There are a number of matters which detract from the honestly and reliability of Mr Tabbah’s reasons for his fresh evidence. In the passage quoted at [55] above, he relied on his Islamic faith in an attempt to persuade the jury that his testimony was truthful. In this Court, the following exchange took place between Mr Balodis and Mr Tabbah:

12. [181]

    Mr Tabbah’s response to Mr Balodis’ question was plainly untrue, as he lied to the jury to disassociate himself entirely from the murder. He said nothing to the jury about accidentally discharging the gun.

13. [182]

    Another matter that stands unhappily with Mr Tabbah’s desire to correct the injustices to the deceased’s family and to the applicant is his appeal against the severity of his sentence for manslaughter which was heard by the Court of Criminal Appeal in October 2019. In Tabbah v R [2019] NSWCCA 324, the Court (Bathurst CJ, Johnson and Fullerton JJ) allowed the appeal and sentenced him for the offence of manslaughter to imprisonment for 13 years comprising a non-parole period of 8 years and 6 months with a balance of term of 4 years and 6 months. Mr Tabbah’s head sentence was reduced by 1 year, and the non-parole period by 1 year and 6 months.

14. [183]

    In this Court, in answer to questions from McNaughton J, Mr Tabbah gave the following evidence:

15. [184]

    Mr Tabbah’s discursive responses to McNaughton J’s questions demonstrate the care that must be taken in assessing the veracity of Mr Tabbah’s evidence. His reply that he lodged the appeal because he believed he was not guilty of murder was nonsensical.

16. [185]

    A common theme emerged during Mr Tabbah’s evidence. He attributed his appeal to a “close friend” organising it for him. Furthermore, he attributed his failure to give truthful evidence during the trial to his lawyer’s advice “that the truth would not be believed” (see [101] above).

17. [186]

    In his evidence in this Court, he said he told his lawyers his version of what happened and they said to him it would not be believed. His lawyers advised him that “it was not about the truth, it’s about who tells the best story”. [17] His version was that the shooting was an accident. He said that he accepted that advice and chose to plead not guilty.

18. [187]

    It appears from Mr Tabbah’s evidence that he was speaking about lawyers who acted for him at an earlier stage of the criminal proceedings, but not about the lawyers who represented him at trial.

19. [188]

    His evidence concerning his trial lawyers in cross-examination by Mr Balodis included the following:

20. [189]

    In my view, his account that he “referenced it” but did not go into detail with his solicitor is implausible. Any lawyer who was asked to “speak to the prosecution” about a plea to manslaughter would seek further instructions from their client as to how “it was an accident”. Furthermore, it is remarkable that Mr Tabbah has no recollection of having a conversation with his barrister about “an accident” when he was prepared to offer a plea to manslaughter.

21. [190]

    I found his explanation for committing perjury during the trial wholly unconvincing and I have no hesitation in rejecting it. Furthermore, I do not accept that he decided to appeal because his close friend organised it for him.

22. [191]

    Against this unfavourable background, I turn to consider Mr Tabbah’s substantive account of the commission of the crime. I do not intend to detail all of the differences in his accounts in the documents tendered in evidence but will refer to some that are material.

23. [192]

    In his letter to Ms Hunter, Mr Tabbah described in the passages quoted at [94]-[95] above how he came into possession of the gun. His description included “[a]s I grabbed the gun my friend came over to me and said ‘What are you doing?’” He said his friend tried to take it off him but he didn’t let him.

24. [193]

    This account differs from the “Index Offence” document which was annexure “F” to Mr Jones’ affidavit. Mr Jones states that handwritten Index Offence document appears to be handwritten by Mr Tabbah.

25. [194]

    As part of the VOTP, Mr Tabbah participated in “offence mapping”, which Ms Huynh explained was a “step-by-step process” during which the participant writes about his index offence.

26. [195]

    In the handwritten document, the following is relevant to the collection of the gun:

27. [196]

    In a VOTP analysis interview document (‘the VOTP account’) which is annexed to affidavits of Mr Jones and Ms Black, the following passage is relevant:

28. [197]

    It is evident that this version was provided by Mr Tabbah to Ms Huynh during his participation in September and October 2020 in the VOTP. Ms Huynh explained that generally it was her practice to write what her patients said “verbatim” to ensure that very comprehensive notes were kept of what took place in patient sessions. Ms Huynh had very comprehensive notes from her sessions with Mr Tabbah.

29. [198]

    During cross-examination on this issue, Mr Tabbah’s evidence included the following:

30. [199]

    The inconsistencies in the accounts as to how he came to be in possession of the gun are material. In the Index Offence account and VOTP account, the gun is in the possession of Mr Tabbah’s friend. Mr Tabbah asks his friend to give it (or pass it) to him. In both accounts, Mr Tabbah takes the gun from his friend.

31. [200]

    In the letter to Ms Hunter, Mr Tabbah’s account includes grabbing the gun and his friend coming over and asking what he is doing. In his evidence, Mr Tabbah describes seeing the gun on the table, picking the gun up, and his friend not wanting him to take it. When he was questioned about asking his friend to “pass the gun”, Mr Tabbah did not know, but remembered that the gun was in his hands.

32. [201]

    In his letter to Ms Hunter, Mr Tabbah described in the passages quoted at [98]-[100] what occurred after the gun fired. After they arrived at the house, he stated that he took off his jumper and face mask and put them on the floor, with the gun on top. He then chucked the gloves on the floor next to them. He told the applicant to chuck everything out and he walked off outside. After waiting for a few minutes, the applicant came out and was in shock. He told the applicant not to talk to him and just drop him off in his area, which he did.

33. [202]

    This account differs from the Index Offence document in which the following appears:

34. [203]

    The following version was provided by Mr Tabbah to Ms Huynh and appears in the VOTP account:

35. [204]

    The inconsistencies in the three accounts are obvious. The Index Offence account includes the gun being wiped down by Mr Tabbah and being given to the applicant, whereas in the VOTP account his “other mate wiped the gun” which the applicant picks up. In the letter to Ms Hunter, there is no mention of the gun being wiped by Mr Tabbah or another person, or the gun being given to the applicant.

36. [205]

    In cross-examination in this Court, Mr Tabbah’s evidence was fairly consistent with Ms Hunter’s letter. He said that when he and the applicant were in the car after the shooting he was “pretty sure” he put the gun on the side of his pants which stands in contrast to “chucking the gun at the back”. When asked was he alone with the applicant when he told him to get rid of the clothes and the gun he replied “Yes.” [24] Further cross-examination by Mr Balodis on this issue followed:

37. [206]

    Later on, Mr Tabbah was asked by Ierace J:

38. [207]

    It was not uncommon for Mr Tabbah to say he was confused or did not remember when he was confronted in cross-examination.

39. [208]

    Mr Tabbah’s accounts of the shooting were generally consistent, however there were differences. In the VOTP account, he referred to the applicant running behind him and “pulling his shirt”. In the Index Offences, he felt “his back pulled”. In the passage quoted at [97] above from the letter to Ms Hunter, he felt his shoulder get “pushed back”, and in his affidavit he stated that the applicant “maybe pulled my shoulder”.

40. [209]

    In Mr Tabbah’s offence mapping records, the following appears:

41. [210]

    There is no mention in this account of the applicant coming into contact with him before he shot the deceased. An egregious feature of the account is that Mr Tabbah states that he felt “the victim’s body heat close to me”. On a plain reading of the facts, this does not seem to be possible. Although the gun was fired at close range, it was fired from outside the house through the broken window. In any event, if Mr Tabbah was close enough to the deceased to feel his body heat, his claim to uncertainty about the item which he says the deceased was holding before he pulled the trigger is diminished. There is no suggestion that the discharge of the gun was accidental.

42. [211]

    All of these matters raise questions about the credibility of Mr Tabbah’s evidence.

43. [212]

    There are, however, aspects of the evidence which provide some support for Mr Tabbah, which I now turn to.

44. [213]

    Mr Tabbah’s prior criminal history is replete with offences of violence. His record as a young person includes control orders for robbery in company; take and detain person with intent to obtain an advantage; assault occasioning actual bodily harm; aggravated assault with intent to rob; and robbery.

45. [214]

    As an adult, he has been sentenced to terms of imprisonment for robbery armed with an offensive weapon; assault of a law enforcement officer; and possession of an offensive weapon in a place of detention.

46. [215]

    In an internal prison report to the General Manager of Silverwater Metropolitan Remand Centre dated 8 August 2013, the author states:

47. [216]

    The author refers to the completion by Mr Tabbah of three months’ segregation “for stabbing an inmate” and, whilst in segregation, attempting to assault a correctional officer.

48. [217]

    Ms Huynh’s “Case Formulation and Treatment Plan” includes:

49. [218]

    Under the heading “Precipitating factors”, Ms Huynh refers to Mr Tabbah’s “Impulsivity, poor emotional control and decision making”. Another precipitating factor is his “distorted thinking/over-appraisal of risk”. Mr Huynh states:

50. [219]

    In the pre-release report, there are references to Mr Tabbah’s “entrenched criminal history”, “violent lifestyle” and identification of his predominant risk factors as being:

51. [220]

    Under the heading “Social influences”, the author of the report states:

52. [221]

    Mr Tabbah described his paranoia when he saw the gun in his letter to Mr Hunter. In the passage quoted at [94] above, his main paranoid thought was that the deceased was a drug dealer who might have a gun. He had earlier stated it was his role to ensure that the applicant was safe.

53. [222]

    This account is generally consistent with the Index Offence account, the VOTP account, and the Offence Mapping account. The Offence Mapping account includes the following:

54. [223]

    When sentencing the applicant, Schmidt J referred to the contrast between the criminal records of the co-offenders. Her Honour remarked at [110]-[111]:

55. [224]

    The applicant’s mental history in the sentencing proceedings was essentially confined to a substance use disorder, a depressive illness, and a possible learning disorder. Her Honour found at [113] that there was “room for hope that Mr Tiriaki had prospects of rehabilitation and that he will not offend in the future”.

56. [225]

    When sentencing Mr Tabbah, her Honour noted that he had been “assessed as posing a high risk of committing further violent offences” and referred to diagnoses of “intermittent explosive disorder, antisocial personality disorder and posttraumatic stress disorder”. [28]

57. [226]

    Her Honour found that “Mr Tabbah unquestionably poses a very serious risk of committing further, serious offences of violence, both while in custody and on release.” [29]

58. [227]

    Mr Tabbah’s violent criminal history, intermittent explosive disorder and post-traumatic stress disorder supports his version of events that he was the shooter. His descriptions of his role as being the guy “to bash” the deceased and the provider of protection for the applicant are consistent with his background. The shooting at close range fits neatly into Mr Tabbah’s mental state which includes paranoia and anxiety about a drug dealer being armed.

59. [228]

    In these circumstances, it seems to me to be unusual that the applicant was the offender who shot the deceased.

60. [229]

    Mr Tabbah has served 11 years for the offence of manslaughter. He has not been released on parole, although he was eligible for release on 6 March 2022. The balance of term expires on 5 March 2025. In the present circumstances, at the very least, it is likely that he will serve the full term of his sentence.

61. [230]

    His confession to being the shooter exposes him to further criminal proceedings. The offence of perjury under s 327 of the Crimes Act 1900 (NSW) carries with it a maximum term of imprisonment for 10 years. There are other offences falling within Part 7 of the Crimes Act which may apply. The general offence of perverting the course of justice under s 319 of the Crimes Act carries with it a maximum term of imprisonment of 14 years.

62. [231]

    It does not appear that he can be retried for murder under s 100 of the Crimes (Appeal and Review) Act 2001 (NSW) as s 100(4) provides:

63. [232]

    Whether or not Mr Tabbah’s circumstances fall within s 101 of the Crimes (Appeal and Review) Act as a “tainted acquittal”, so that he may be retried for murder, is not a matter for this Court to determine.

64. [233]

    It is clear from his evidence that Mr Tabbah understands that further criminal proceedings might be taken against him, whatever may be his reasons for his confession.

65. [234]

    As I have pointed out, there are troubling aspects of Mr Tabbah’s evidence which raise questions about its veracity. His inconsistent statements, memory deficiencies, evasive and non-committal testimony concerning the details surrounding the shooting are to be contrasted with his assertion that he was the shooter. Overall, I found Mr Tabbah to be an unimpressive witness. However, Mr Tabbah’s past violent offending, mental history and exposure to further criminal proceedings provide some support for his evidence that he was the shooter. I am unable to reach the firm conclusion that the entirety of his evidence is false when considered in the context of the trial. In my view, it is unnecessary to decide more than his evidence that he shot the deceased is capable of belief: see Gallagher at 397.

66. [235]

    I bear in mind that “[t]he relevant principles… emphasize that a verdict is not lightly to be set aside because of the discovery of fresh evidence.” [30]

67. [236]

    I have adopted the approach to the third limb of the test of fresh evidence as suggested by Mason and Deane JJ in Gallagher in the passage quoted at [174] above. Gibbs CJ expressed agreement with this approach, which this Court followed in MRW v R [2011] NSWCCA 260 (‘MRW’) and Rogerson.

68. [237]

    In MRW, Bathurst CJ considered the test of “significant possibility” [31] to be somewhat lower than the test of likelihood of the jury entertaining a reasonable doubt which was the formulation expressed by Toohey and Gaudron JJ in Mickelberg v The Queen. However, Bathurst CJ considered that it was unnecessary to further consider this issue.

69. [238]

    The Crown case at trial against the applicant and Mr Tabbah was circumstantial. However, Schmidt J informed the jury in the passage quoted at [80] above of the Crown’s concession that the evidence of who was the shooter was stronger against the applicant than his co-accused. This concession was undoubtedly due to the probative force of the DNA and fingerprint evidence.

70. [239]

    DNA from the grip and trigger/trigger guard of the Smith and Wesson revolver was matched to the applicant, as was DNA on the tape roll, Lonsdale jacket, black gloves, and full-face mask. All of these items were found in the applicant’s brother’s garbage bin.

71. [240]

    DNA from the blade area and knife handle of the folding knife was matched to the applicant. This knife was found near the front of the applicant’s brother’s house. The applicant’s fingerprints were found on the duct tape roll and the empty Ansell glove packet.

72. [241]

    The matching of Mr Tabbah’s DNA was confined to a blue glove, Champion jumper, and half-face mask.

73. [242]

    The matching of the applicant’s DNA on the grip and trigger/trigger guard on the revolver pointed powerfully to the applicant being the offender who discharged the weapon. CSO Weldon told the jury how he had taken DNA trace swabs from the grip (on both sides), and the trigger and trigger guard. He explained that he had used a single cotton bud to swab the trigger and trigger guard, and accepted in cross-examination that the DNA which was found could either be from the trigger or the trigger guard. There were no fingerprints detected on the revolver or the five live rounds found in the chamber. This was the weapon used to kill the deceased.

74. [243]

    The cogency of Mr Tabbah’s accounts as to how the applicant came into possession of the gun at his brother’s home after the shooting suffer from the inconsistencies that I have referred to at [204] above and from other aspects which indicate their lack of credibility.

75. [244]

    The Index Offence account includes the gun being wiped down by Mr Tabbah and being given to the applicant. According to Mr Tabbah, he was wearing gloves when he shot the deceased, so a relevant question is why he felt the need to attend to the weapon in this way. However, a more illuminating indication of the implausibility of this account is that the applicant then takes the gun after it has been wiped in his presence and handles the weapon in such a way that his DNA was left on the grip and the trigger/trigger guard.

76. [245]

    Similar criticism may be made about Mr Tabbah’s version in the VOTP account of the applicant picking up the gun after it had been wiped by Mr Tabbah’s “other mate”.

77. [246]

    Mr Tabbah’s version in the letter to Ms Hunter made no reference to the gun being wiped. However, according to Mr Tabbah, the applicant had no knowledge of the gun before the shooting and was in panic after the deceased was shot, screaming “What have you done?” In my view, it is not credible that the applicant would pick up the gun at Mr Tabbah’s direction in these circumstances.

78. [247]

    Another difficulty with Mr Tabbah’s testimony is that it stands, as I have already noted, in stark contrast with the applicant’s evidence already adduced at the trial that he had nothing to do with the murder and as to how his DNA came to be on the gun.

79. [248]

    In my view, there is no significant possibility that the jury acting reasonably would accept Mr Tabbah’s evidence as to how the applicant came to be in possession of the gun. As a consequence, there is no plausible explanation of the presence of the applicant’s DNA on that weapon.

80. [249]

    Does it necessarily follow from that conclusion that there is no significant possibility that the jury acting reasonably would not accept Mr Tabbah’s evidence that he shot the deceased? The Crown bears the onus throughout the trial of proof of the applicant’s guilt beyond reasonable doubt.

81. [250]

    The DNA and fingerprint evidence was of fundamental importance, as the trial proceeded on the basis that both accused denied any involvement in the murder. If Mr Tabbah’s testimony, that it was he who shot the deceased, had been adduced at the trial, I have no doubt that it would have been embraced by the Crown and accepted by the jury.

82. [251]

    The exposure to further criminal proceedings and the lack of a discernible motive to lie about who killed the deceased would, in my view, enhance in the minds of a reasonable jury that it was a real possibility Mr Tabbah was the shooter, notwithstanding the inconsistencies and lack of veracity in his version of events before and after the discharge of the weapon. In my opinion, there is no significant possibility that the jury acting reasonably would accept that the shooting of the deceased was accidental. A standard direction to the jury is that they may accept part of the evidence of a witness on an aspect of the case and, at the same time, not accept the evidence of that same witness on another aspect of the case.

83. [252]

    Mr Tabbah’s confession reduces the significance of the DNA evidence in establishing who killed the deceased. Furthermore, there were no fingerprints on the five live rounds or on the revolver.

84. [253]

    As the Crown argues, this Court is not obliged to follow the reasoning of the jury who found that Mr Tabbah was not the shooter and returned a verdict of manslaughter. The Crown case on murder was not confined to the accused who shot the deceased.

85. [254]

    Schmidt J directed the jury on the essential elements of murder “on an aid and abet basis”. Her Honour relevantly told the jury that the third essential element was; “that the co-accused intended either to kill him or inflict grievous bodily harm”, and the sixth essential element was; “that the accused knew all the essential facts or circumstances necessary to show that the co-accused intended to shoot Matthew Hedges so as to kill him or inflict grievous bodily harm”, and the seventh essential element was; “that with that knowledge the accused intentionally assisted or encouraged the co-accused to commit that murder.” [32]

86. [255]

    Schmidt J’s instructions on murder “on the basis of extended joint criminal enterprise” included the following essential elements:

87. [256]

    In my opinion, there is no significant possibility that the jury acting reasonably would accept Mr Tabbah’s evidence as to how he came into possession of the gun and of the applicant’s lack of knowledge of the weapon before the shooting.

88. [257]

    There is, however, a significant possibility that the jury acting reasonably would not be satisfied beyond reasonable doubt that the applicant had the necessary knowledge or state of mind to be guilty of murder, either as an aider and abettor, or a participating member of a joint criminal enterprise.

89. [258]

    I am satisfied that if Mr Tabbah had given evidence in the trial that he shot the deceased, there is a significant possibility the jury acting reasonably would have acquitted the applicant of murder. There has been a miscarriage of justice, notwithstanding the applicant’s testimony in the trial that he had never been to the deceased’s home and was not part of a plan to kill or rob him.

90. [259]

    The Crown’s argument that there is no unfairness to the applicant because of the forensic decisions he made at trial is outweighed by the significance of the fresh evidence. In Ratten, Barwick CJ said at 517:

Orders

1. [260]

   I propose the following orders:

   1. (1)

      Grant leave to the applicant to raise ground 1 of the appeal;

   2. (2)

      Appeal allowed;

   3. (3)

      Quash the conviction of murder entered on 9 May 2014;

   4. (4)

      Order a new trial.

2. [261]

   IERACE J: I have had the considerable advantage of reading the draft judgment of Price J. I agree with his Honour’s proposed orders and his reasons.

3. [262]

   An unusual aspect of the application is that, at trial, the applicant relied upon a defence of alibi, which is plainly inconsistent with the potentially exculpatory account of Mr Tabbah that the applicant was with him when the deceased was killed but he, not the applicant, possessed and discharged the gun. On this application, the applicant has not resiled from his earlier version of events which he had given on oath.

4. [263]

   If a new trial is sought on the basis of material which the Court is satisfied is correctly characterised as fresh evidence, it must consider it in the context of “the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them”: Ratten v The Queen at 518-519, extracted at [166] above.

5. [264]

   Implicit in the jury’s verdict of murder is its rejection of the applicant’s defence of alibi, which is thus the appropriate basis upon which the anticipated evidence of Mr Tabbah is to be considered by this Court.

6. [265]

   I share Price J’s scepticism as to the veracity of aspects of Mr Tabbah’s account, for example, his explanation as to how he came to possess the gun and dispose of it. In addition, I note that in 2016, Mr Tabbah’s solicitor at the time contemporaneously recorded him in conference instructing that “[h]e had not told [the applicant] that he had a gun but he told him that if the victim had a gun he had something to protect them”. In evidence in this Court, Mr Tabbah denied that he had told the applicant he was armed, saying that his solicitor was mistaken.

7. [266]

   I am nevertheless satisfied that if Mr Tabbah had given evidence that he shot the deceased there is a significant possibility that a jury, acting reasonably, would accept that evidence and would have acquitted the applicant of the offence of murder in the context of the Crown case as it was then framed as to the alternative bases of criminal liability.

8. [267]

   MCNAUGHTON J: I agree with the reasons and orders proposed by Price J and only wish to add the following comments.

9. [268]

   This is a difficult and unusual case where the fresh evidence is of such a nature that a new trial must be ordered in accordance with the detailed reasons set out by Price J. It is difficult and unusual because at their joint trial, before a jury, the applicant and Mr Tabbah gave evidence under oath entirely at odds with the version of events now being put forward by Mr Tabbah, also under oath.

10. [269]

    That a new trial is being ordered in these circumstances no doubt prolongs the distress suffered by the deceased’s family and friends as well as costing the community the expense of running at least one further trial. However, as Price J has set out so comprehensively, the essential nature and circumstances of the fresh evidence in this case (including Mr Tabbah’s lack of a discernible motive to lie about who killed the deceased and that he has exposed himself to further criminal proceedings) has sufficient cogency where the ordering of a new trial is the only proper outcome.