R v Omar

1. [1]

   The accused is charged with the murder of Kevan Safwan on 21 April 2012. He is alleged to have shot Mr Safwan on the street outside his home at 24 Bell St, Riverwood at or about 11.55pm on that night. A friend and associate of the accused was Sleiman Ibrahim. He is alleged to have been in the company of the accused shortly before the killing, and to have been in telephone contact with the accused prior to meeting up with him in Bell St.

2. [2]

   On 6 January 2022, Mr Ibrahim was served with a subpoena requiring him to attend Court for the purpose of giving evidence at a Basha inquiry. The Basha inquiry was fixed for hearing on 7 March 2022 immediately before the trial was to commence. Mr Ibrahim failed to appear. A bench warrant was issued for his arrest.

3. [3]

   He was subsequently arrested and released on bail to appear on 14 March 2022 at the adjourned Basha inquiry.

4. [4]

   On 14 March 2022 Mr Ibrahim was sworn to give evidence at that inquiry. He gave his name to the Court, and thereafter indicated that he would not answer any further questions. His refusal to do so, he said, was not through any fear of self-incrimination.

5. [5]

   He was subsequently called to give evidence at the trial on 29 March 2022. He was again sworn to give evidence, and he thereafter indicated that he would not answer any questions. Again, his refusal was said not to be on the basis of any fear of self-incrimination.

6. [6]

   On both occasions Mr Ibrahim was warned that if he continued to refuse to answer questions he might be held in contempt of court. He said that he would still refuse to answer any questions.

7. [7]

   In those circumstances, the Crown submitted that Mr Ibrahim was unavailable to give evidence within the meaning of cl 4 of the Dictionary to the Evidence Act 1995 (NSW) (“the Act”), and sought to tender portions of transcripts of evidence given by Mr Ibrahim in the New South Wales Crime Commission on 2 October 2012, and subsequently on 11 July 2018.

8. [8]

   For the evidence given in 2012, reliance was placed by the Crown on s 65(2)(b) of the Act, and in respect of the evidence given in 2018 reliance was placed on s 65(2)(d).

9. [9]

   The tender of the evidence was opposed on behalf of the accused.

10. [10]

    During the course of the hearing of the application, the Crown abandoned the tender of any evidence from the appearance by Mr Ibrahim before the Crime Commission in 2012.

Exceptions to the hearsay rule

1. [11]

   Clause 4 of the Dictionary in Sch 2 to the Act relevantly provides:

2. [12]

   It is clear that, where a person attends court but refuses to give evidence, the person is not available to give evidence within the meaning of cl 4(1): Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [15]-[16]; R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [83].

3. [13]

   The relevant exception to the hearsay rule in the circumstances is therefore to be found in s 65 of the Act, which relevantly provides:

Notice under s 67

1. [14]

   The Crown has not given any notice under s 67 of the Evidence Act.

2. [15]

   No notice was given by the Crown because it was not known until Mr Ibrahim was called to give evidence on 29 March 2022 that he would refuse to do so. Although he had refused to answer questions at the Basha inquiry, arrangements had been made for him to confer with Mr Raed Rahal, the solicitor who had acted for him in relation to these proceedings and the events which gave rise to them since at least Mr Ibrahim’s appearance before the Crime Commission in 2018. Subsequently, Mr Rahal appeared at the Court’s request and informed the Court that he had spoken with Mr Ibrahim since he appeared at the Basha inquiry, and he had explained his rights and obligations to him. Mr Rahal expressed concern about whether, because of drug and mental health issues, Mr Ibrahim had comprehended the advice that had been given to him. Mr Rahal did not advise the Court that Mr Ibrahim would refuse to give evidence if called at the trial.

3. [16]

   When Mr Ibrahim left the Court, after refusing to give evidence at the trial, the Crown immediately indicated that it would seek to tender the material, the subject of the present judgment. The matter was adjourned to the following day for the application to be heard. At the hearing, Ms Cunneen SC for the accused did not indicate any opposition by reason only of the failure to serve a notice, nor any prejudice that it had not been done.

4. [17]

   Subsequently, after the conclusion of the hearing of the present application, further submissions on behalf of the accused were forwarded, without any leave, to my Associate. In those submissions, complaint was made for the first time about the unfairness of the lack of a notice. It seems, however, that the making of the further submissions was intended to overcome any such unfairness. I have had regard to those further submissions in my determination of this matter.

5. [18]

   I have taken into account the matters in s 192(2) of the Evidence Act, and in particular whether there is any prejudice to the accused in permitting the evidence to be adduced without notice having been given. It is not suggested that the accused was prevented, by the lack of a Notice, of adducing evidence to meet what was contained in the transcripts from the Crime Commission. In fact, the accused indicated that he would seek to tender other parts of the same transcripts. In principle, that tender was not opposed by the Crown. In my view, leave should be given to the Crown pursuant to s 67(4) of the Act.

The construction of s 65

1. [19]

   Ms Cunneen SC took what was, in effect, a preliminary point, namely, that the provisions of s 65(2) were not available in the present case because sub-s (3) applied in the circumstances. She submitted that because Mr Ibrahim had given evidence in an “Australian or overseas proceeding”, had not been cross-examined by the accused, and where the accused did not have a reasonable opportunity to cross-examine him, the hearsay rule applied.

2. [20]

   The Crime Commission falls within the definition of “Australian court” in the Dictionary to the Act, and “Australian or overseas proceeding” was defined to mean a proceeding in an Australian court or a foreign court. In that way, Ms Cunneen submitted, there was no occasion to consider s 65(2), because the hearsay rule applied by reason of the circumstances falling within s 65(3).

3. [21]

   There are a number of difficulties with this submission. First, in Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316, Campbell JA said at [34]:

4. [22]

   In R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286, the Crown sought to tender evidence of a witness given in proceedings before the Independent Commission Against Corruption (NSW) in reliance on ss 65(1) and (3) of the Evidence Act. It was submitted for one of the accused who opposed the admission, that the provisions of s 65(2)(c) and (d) operated as a further precondition to admissibility under s 65(3).

5. [23]

   Justice Fullerton said:

6. [24]

   Secondly, s 65(3) does not apply in the circumstances of the present case in any event. Mr Ibrahim was not cross-examined by the accused before the Crime Commission, nor did the accused have the reasonable opportunity to do so. Sub-section (3) is not engaged in those circumstances, but that does not mean that the hearsay rule applies in such circumstances. Sub-section (3) provides for circumstances where the hearsay rule does not apply. It does not preclude the evidence being adduced if the circumstances do not exist. A comparison with sub-s (4) highlights the point, because that sub-section precludes evidence of previous representation being given against one of a number of defendants who did not cross-examine or have the opportunity to cross-examine the maker of the statement sought to be admitted.

7. [25]

   Thirdly, a similar submission was rejected in Suteski:

8. [26]

   In my opinion, the submission that the matter is governed only by s 65(3) should be rejected. It is necessary, therefore, to determine whether the portions of the transcript sought to be adduced satisfy the requirements of sub-s (2)(d). In doing so, it is important to remember that in Sio, the High Court said at [56]-[58] that one must identify the particular representation or representations rather than adopting a compendious approach to the material. Nevertheless, the Court said at [59] that Wood CJ at CL is correct in Suteski in saying that the representations should be considered in context, so as to determine whether, when read together, they "constitute an admission or answer against interest". The Court also said at [71]:

9. [27]

   In relation to the requirement of s 65(2)(d)(ii), the Court said at [64] that the sub-section requires a trial judge “to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character”.

10. [28]

    The Court said further:

The representations

1. [29]

   The Crown seeks to lead evidence of seven representations. I shall deal with each in turn.

2. [30]

   The evidence sought to be adduced in relation to this representation is as follows:

3. [31]

   It seems to me that the material in the passage can only be seen as “representations which form part of the context” in which the other representations were made. It the jury was unaware of the nature of the relationship between Mr Ibrahim and the accused, and for that matter the other persons mentioned, some or all of the other representations would not be fully understood. This representation is not put forward for any particular value that it has in itself. It seems scarcely likely to be contentious in any event.

4. [32]

   This evidence may be adduced.

5. [33]

   The evidence put forward in support of this representation is as follows:

6. [34]

   When viewed in the light of some of the later extracts put forward in support of some of the other representations, the evidence in these extracts can be seen to be against the interests of Mr Ibrahim in terms of s 65(7) (a) and (b). First, his presence with the accused and the others, at the time after the phone calls referred to in the later representations, tends to show that Mr Ibrahim has committed an offence, either of being an accessory before the fact, or of having knowledge of the commission of a serious offence. Mr Ibrahim confirmed during the examination that he had a concern that he might have been an accessory before the fact.

7. [35]

   Secondly, this evidence tends to damage Mr Ibrahim’s reputation, because it demonstrates that he had earlier told lies about whether he was present on the street with the accused before the shooting.

8. [36]

   In R v El Masri [2010] NSWSC 1277 Hoeben J said at [19]:

9. [37]

   Earlier at the hearing before the Crime Commission on 11 July 2018, Mr Ibrahim, when asked if he was with the accused on the night of the shooting said:

10. [38]

    The Commission then said that there would be a short adjournment to enable Mr Ibrahim to confer with his lawyer, with counsel assisting adding:

11. [39]

    The accused submitted that this evidence, and the evidence in support of the other representations was not given against Mr Ibrahim’s interests; rather, at all times he was endeavouring to minimise his involvement and deflect blame to others, particularly the accused. In that way his evidence was self-serving. A similar argument was rejected in Suteski where Wood CJ at CL said at [94]:

12. [40]

    It was also made clear in Suteski at [92] and [93], that statements against interest had to be viewed in context, so that while some statements when read alone would not be found to be against interest, when read together with others, they constitute an “admission or answer” against interest.

13. [41]

    I am satisfied, therefore, that the above evidence of his presence with the accused before the shooting was against the interests of Mr Ibrahim.

14. [42]

    In relation to s 65(d)(ii), the accused submitted that there were so many inconsistencies in Mr Ibrahim’s evidence to the Crime Commission that the evidence sought now to be adduced could not be considered to be reliable. He submitted that the unreliability was shown by Mr Ibrahim’s inability to remember many of the matters put to him.

15. [43]

    I am satisfied that the circumstances in which the representation was made make it likely to be reliable. Mr Ibrahim was giving evidence under oath in circumstances where he had been told that it was an offence to give false or misleading evidence.

16. [44]

    Further, following the adjournment granted to enable Mr Ibrahim to confer with his lawyer (at [38] above), upon the resumption of the hearing, and before any further evidence was given, the following was said:

17. [45]

    Following that exchange, Mr Ibrahim gave the evidence set out above (at [33]) where he admitted being with the accused before the shooting. In the light of what was said by counsel assisting the Commission and the turnaround in Mr Ibrahim’s evidence immediately afterwards, I am satisfied that it is likely that the evidence is reliable.

18. [46]

    The accused submitted that Mr Ibrahim should be regarded as an accomplice, and in those circumstances his evidence should be considered to be unreliable. Reference was made in that regard to s 165(1)(d) of the Act. I accept that, if requested at trial, a judge would need to give a warning that Mr Ibrahim’s evidence may be unreliable because he might be supposed to have been criminally concerned in the events giving rise to the proceeding. However, that is only one consideration on the present application. Whilst it would be the jury who would consider if Mr Ibrahim’s evidence generally is reliable, the task I have is to consider the reliability of the particular representations in the circumstances in which they were made. As the High Court said in Sio at [72]:

19. [47]

    The fact that Mr Ibrahim’s evidence before the Commission might, when seen as a whole, appear to be unreliable does not focus on the proper inquiry. The proper inquiry is whether the particular representation is likely to be a reliable in the circumstances it was made. Those circumstances are set out at [43] to [45] above. That is so, notwithstanding Mr Ibrahim might be supposed to be criminally concerned in the events. Further, he has never been charged as a co-offender.

20. [48]

    The evidence sought to be adduced in relation to this representation is as follows:

21. [49]

    This representation is clearly against Mr Ibrahim’s interest, because it demonstrates that he had knowledge that the accused was seeking the gun, and that the accused had secreted it in or near the front of the property where Mr Ibrahim lived. The evidence also differed from his earlier account that “shoes” meant shoes. His agreement that it was or was likely to have meant a gun showed again that he had lied in his earlier evidence.

22. [50]

    I am satisfied of the reliability of the evidence for the reasons in relation to representation 2 above. In addition, the playing of the recorded telephone call indicated to Mr Ibrahim that the Commission had evidence of his involvement independent of anything he might say: El Masri at [27].

23. [51]

    This evidence may be adduced.

24. [52]

    The evidence in support of that representation is as follows:

25. [53]

    This representation is in the same category as representation 3 in terms of its being against the interest of Mr Ibrahim, because it shows his continuing involvement about the gun sought by the accused.

26. [54]

    I consider that it is likely to be reliable for the reasons given for both representations 2 and 3.

27. [55]

    This evidence may be adduced.

28. [56]

    The evidence in support of this representation is as follows:

29. [57]

    This evidence satisfies the requirements of s 65(2)(d) for the reasons given for representations 2 and 3.

30. [58]

    This evidence may be adduced.

31. [59]

    The evidence in support of this representation is as follows:

32. [60]

    This evidence satisfies the requirements of s 65(2)(d) for the reasons given for representations 2 and 3.

33. [61]

    This evidence may be adduced.

34. [62]

    The evidence in support of this representation is as follows:

35. [63]

    This representation falls into the same category as representations 2 and 3. Although the evidence only concerns the identification of the persons in the phone call, that must be seen in the context of the other evidence. This call occurred at 22.05 between the accused and Mr Ibrahim, a little under two hours before the shooting, and in circumstances where Mr Ibrahim admitted to being in the accused’s company before the shooting. For the reasons given in relation to representations 2 and 3, the requirements of s 65(2)(d) are satisfied.

Section 137

1. [64]

   It is then necessary to consider s 137 of the Evidence Act.

2. [65]

   The evidence sought to be adduced tends to show that the accused had, seemingly, to the knowledge of Mr Ibrahim, secreted a gun, in or near the property where Mr Ibrahim lived. It tends to show that the accused was requesting from Mr Ibrahim that the gun be provided to him at that time. It also shows that Mr Ibrahim was present with the accused at the scene of the killing, in the hours leading up to the killing. No other evidence places the accused at that location at that time. Such evidence has significant probative value when the deceased was killed within four hours of the phone call being made in which the accused sought the gun from Mr Ibrahim.

3. [66]

   Ms Cunneen for the accused, pointed to a number of what were said to be significant aspects of prejudice from this evidence. The first was the inability to cross-examine Mr Ibrahim about this evidence. The second was that the evidence represented the only evidence in the case where someone was asking for a gun, in circumstances where the deceased was shot. The particular prejudice associated with the second aspect was said to be that the jury was not likely to know about the prevalence of firearms in particular parts of the community and within sub-groups within the community. The jury was likely to jump to the conclusion that guns were rare and difficult to get. In that way, they would too readily reach the conclusion that because this was the only evidence about a gun being requested, that must mean that it was the accused who shot the deceased.

4. [67]

   Thirdly, Ms Cunneen submitted that the evidence does not establish that the accused in fact recovered the gun from where it was secreted.

5. [68]

   Finally, she submitted that the impermissible use to which the jury was likely to put the evidence was to elevate it, to close the substantial gaps in the Crown case. In that regard, Ms Cunneen pointed to how little evidence there was against the accused or anyone else. There was a danger, Ms Cunneen submitted, that the jury would reason that, as no one else at, or leaving, the scene was apprehended with a gun, then this must be the gun that was used by the accused to shoot the deceased.

6. [69]

   In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J said at [91]:

7. [70]

   In Suteski, Wood CJ at CL said:

8. [71]

   In relation to the inability of the accused to cross-examine Mr Ibrahim, it must be accepted that that amounts to some prejudice which will be suffered by the accused. However, the submission by Ms Cunneen that the opportunity to challenge this evidence by cross-examination is so fundamental that s 137 should exclude the evidence should be rejected.

9. [72]

   The very reason that consideration is being given to admitting the evidence pursuant to s 65(2) is because no cross-examination or opportunity for cross-examination occurred: Sio at [60]; Suteski at [98] to [101]. If it had occurred, s 65(3) would have permitted the evidence to be adduced. The limitations in s 65(2) (“under a duty”, “unlikely that the representation is a fabrication”, “highly probable that the representation is reliable”, “likely that the representation is reliable”), are partly designed to deal with the fact that the material sought to be adduced will invariably not have been cross-examined. That is not to say that the fact of no cross-examination ceases to be of relevance for the purpose of s 137, but it seems likely that more would be needed in terms of prejudice, particularly where the probative value of the evidence is so high.

10. [73]

    The second concern (it being the only evidence of anyone asking for a gun) seems to be based on the unlikely premise that the jury was not likely to know about the prevalence of firearms within the community. I can take judicial notice of the fact that in the last 8 to 10 years in Sydney there have been a significant number of shootings, with a number of them resulting in the death of the victims. These shootings are publicised as involving internecine disputes between crime figures and crime families.

11. [74]

    In any event, it is difficult to see how the jury would misuse evidence that a few hours before the deceased was shot in Bell St, Riverwood, the accused who lived at that location was asking Mr Ibrahim, who also lived nearby that location, to retrieve a gun which had been secreted in that location. The fact that this is the only evidence in the trial (if that be the case) of a person asking for a gun, does not mean that the evidence is likely to be misused.

12. [75]

    In relation to the third concern, it will no doubt be pointed out to the jury on behalf of the accused that there is no evidence that that gun was retrieved and used. But the absence of that evidence does not result in prejudice.

13. [76]

    Finally, this is a circumstantial case. The jury will, no doubt, be asked by the Crown to draw certain inferences from the conversations involving the gun, the timing of the conversations, and the fact that a gun was used to kill the deceased. That would be a legitimate submission. In a circumstantial case, there are always gaps which need to be closed. It is difficult to see how the jury would misuse the evidence, either because it is the only evidence about a gun and the accused together, or because inferences could be drawn to close gaps in the case.

14. [77]

    The jury will be given warnings about the hearsay nature of the evidence, and its being untested by cross-examination, and about the potential unreliability of evidence from a person criminally concerned in the events. The sort of directions which might be given are set out in Suteski at [130] and [131]. In addition, directions will be given about the proper way to draw inferences.

15. [78]

    I do not consider that there is unfair prejudice to the accused by the adducing of the evidence. If there is a danger of unfair prejudice, I do not consider that such prejudice outweighs the significant probative value of the evidence.

16. [79]

    Ms Cunneen pointed to certain passages in the Crime Commission evidence which are not sought to adduced, and which she seemed to suggest ameliorated the effect of the material sought to be adduced. If that is so, some of the prejudice brought about by inability to cross-examine can be dealt with by the defendant seeking to adduce those other portions of the Crime Commission evidence either by agreement with the Crown or under s 65(8).

17. [80]

    I make the following order: