R v Safarjalani

1. [1]

   The accused, Gazi Safarjalani (born 11 January 1981), was charged with murdering the deceased, Bill Panagakos (born 4 March 1969, then aged 45), by shooting the deceased either himself or in a joint criminal enterprise. The deceased was shot five times, 3 times in the head, once in the back and one bullet grazed his left arm. The incident occurred at about 11.15 pm on Tuesday, 4 March 2014 at the intersection of Queen Street and Railway Street, Petersham.

2. [2]

   On 10 September 2018, the Court provided pre-trial rulings on objections to evidence to counsel for the Crown and the accused.

3. [3]

   The pre-trial rulings were in the form of an email in the following terms:

4. [4]

   The reference to the submissions of the accused in that email concerned the “broad description” of the defence objections to evidence given at the outset of the defence’s written submissions on the same. The five broad topics, the subject of the above rulings and as described in the accused’s submissions, were as follows:

5. [5]

   There were two additional objections not recorded in that list. The objections were directed to answers given in the accused’s ERISP of 1 December 2014, namely Q 623-624 and Q 872-880. The Crown did not press the latter and the former attracted the additional ruling on objections to evidence which is found in the final paragraph of the rulings extracted above.

6. [6]

   This judgment concerns the Court’s reasons for the decision with respect to the rulings. The judgment shall be segregated by headings corresponding to the topics extracted at [4] above plus the additional objection ruling with respect to the 1 December 2014 ERISP.

Evidence relating to the ownership and use of the black Toyota Kluger

1. [7]

   One part of the circumstantial case for the Crown was that relating to the car which, it was contended for the Crown, two men entered immediately after the deceased was shot. That car had been parked on Queen Street facing west, metres from the intersection where the deceased was shot. It sped west along Queen Street with its lights off.

2. [8]

   The evidence relied upon by the Crown in support of its circumstantial case, in this respect, was as follows:

3. [9]

   The accused sought to have the following evidence relating to the Toyota Kluger excluded:

   1. (1)

      the statement of Mr Hussain Faraj, and any records relevant to the purchase and sale of that vehicle;

   2. (2)

      the following questions and answers from the accused's ERISP of 1 December 2014:

   3. (3)

      evidence relating to the movements of the Toyota Kluger.

4. [10]

   The accused accepted that a dark coloured SUV could be connected with the murder of the deceased and was likely used as a getaway car although no witnesses described that vehicle as a Toyota Kluger. It was contended the jury was incapable of making a conclusion as to what car was used when there is no specific or direct evidence which identified a Toyota Kluger. It was submitted that the CCTV footage was of a very poor quality.

5. [11]

   The accused also submitted there was no evidence the accused actually borrowed or drove a Toyota Kluger on 4 March 2014 or at any other time.

6. [12]

   The accused further contended that whether the accused was in the same general location of the Toyota Kluger at approximately 1.21 pm on 4 March 2014 did not place him in the vehicle at that time and, more significantly, did not establish that the accused was in or using that vehicle at 11:15 pm on 4 March 2014. The persons who could most likely provide that information were Mr Zrieka and Mr El-Itawi who would not give evidence and, therefore, it could not be tested. The accused did not make admissions as to using the Toyota Kluger owned by Mr Zreika.

7. [13]

   It was further submitted the circumstances in which the vehicle was returned to the dealership from which it was purchased on 12 March 2014 were not connected to the accused. The vehicle was disposed of by its owner, a company run by Mr Zrieka. The accused submitted that evidence may nonetheless encourage the jury to speculate on the reasons why that vehicle was returned, given that reselling the vehicle to Noble Toyota caused a loss to Mr Zreika’s company and, by association, to Mr Zreika. Such speculation, it was contended, could not be informed by any admissible evidence, given the lack of any statement from Mr Zreika or Mr El-ltawi. It may be noted that this aspect of the accused’s contentions was ultimately redundant as the Crown did not press evidence as to the sale of the vehicle.

8. [14]

   Based upon the above contentions, the accused submitted the following:

   1. (1)

      The evidence generally encouraged the jury to speculate on any connection between the accused and the Toyota Kluger in the absence of any evidence actually capable giving rise to a rational conclusion that the accused used the Toyota Kluger on the evening of 4 March 2014.

   2. (2)

      The probative value of the evidence was limited. Whether the accused could be linked to a specific vehicle did not materially advance the prosecution case in the absence of evidence that the specific vehicle was, in fact, used in the offence. It was contended that black or dark coloured SUV's are a common vehicle on Sydney roads.

   3. (3)

      The jury was unable to determine for themselves by any rational process whether, in fact, the accused had access to the vehicle, used the vehicle and whether that vehicle was the getaway car.

   4. (4)

      Any evidence relating to the black Toyota Kluger was either irrelevant without that link or alternatively, its probative value was outweighed by the danger of unfair prejudice, such that it ought to have been excluded pursuant to section 137 of the Evidence Act 1995 (NSW).

9. [15]

   The determination to overrule the objection to evidence as to the Toyota Kluger was for the following reasons:

   1. (1)

      The evidence was part of an overall circumstantial case for the Crown and as such, should not be considered in a piecemeal fashion: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]-[47].

   2. (2)

      The evidence was relevant because it showed that the accused had access to a car of the type fitting generally the description of the getaway car.

   3. (3)

      Evidence which does not directly implicate the accused in the crime or has been present in incriminating circumstances is admissible evidence: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [14] (per Gleeson CJ) and [56] (per McHugh J). The evidence given by various witnesses did not identify a black Toyota Kluger per se but in most respects, but not all, was similar to that of a black Toyota Kluger.

   4. (4)

      The evidence does have probative value. The answers given by the accused in his ERISP as to borrowing cars from Mr Zreika and the ownership of the Toyota Kluger were relevant and admissible. Whilst the Toyota Kluger may not have been physically in Mr Zreika’s possession, shortly after its finance, and may have been used by another person, that evidence itself does not exclude the proposition that on the day of the shooting, the accused had access to the Toyota Kluger from Mr Zreika. The statement of Mr Faraj says nothing about when it was that Mr Zreika took back possession of the Toyota Kluger prior to its ultimate return to the dealership on 12 March 2014. The evidence that the car was returned on 12 March 2014 and sold for a loss of $13,000 was not placed before the jury.

   5. (5)

      As was said by the High Court (per Gleeson CJ, Gummow, Kirby and Kiefel JJ) in Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27] that, in a criminal trial where a witness who might have been expected to have been called and give evidence on a matter is not called by the prosecution, the question is not whether the jury may properly reach conclusions about the issues of fact but whether in the circumstances they should entertain a reasonable doubt about the guilt of the accused.

   6. (6)

      The evidence is confined to the accused’s access to cars and a car of a particular type. It does not itself lead to an inference that the accused was one of the persons who was present when the murder weapon was discharged.

   7. (7)

      The photographic evidence of the Toyota Kluger in the southern suburbs of Sydney ties up geographically and temporarily with an entry on the accused’s phone records which is circumstantial evidence suggesting that the accused was in possession of the Toyota Kluger on the afternoon of 4 March 2014.

   8. (8)

      The probative value of the evidence is not outweighed by the danged of unfair prejudice to the accused.

10. [16]

    Directions were given as to how the jury is to use the evidence both in terms of how they might or might not use the evidence relating to access to the Toyota Kluger or the unavailability of witnesses.

Evidence relating to James Murray

1. [17]

   In the ERISPs of 1 December and 15 December 2014, the accused talked about his relationship with Mr James Murray. He informed the police that Mr Murray spent a considerable period of time in custody for serious offences and that he was a regular past user of illicit drugs including heroin. Further material concerning Mr Murray arose in listening device recordings of 3 and 10 October 2014 concerning Mr Murray being adduced in evidence.

2. [18]

   Agreement was reached that the Crown would not press material concerning Mr Murray’s antecedents such as his time in custody and involvement with illicit drugs. However, an issue arose as to parts of the 1 December 2014 ERISP and the listening devices of 3 October 2014.

3. [19]

   The 3 October 2014 recording occurred after police spoke to the accused’s wife at Breakfast Point on that day. The recording involved an argument between the accused and his wife regarding a family holiday. The section of the recording particularly relied upon by the Crown concerned a statement by the wife as to the time and energy spent by the accused with Mr Murray and the assistance provided by the accused to Mr Murray to leave the country.

4. [20]

   The Crown submitted that the evidence revealed a desire of the accused for Mr Murray to be out of the country.

5. [21]

   The accused was correct to submit that the Crown sought to use the conversation as evidence that the accused was concerned that Mr Murray would speak to police about his movements on 4 March 2014 and any connection between the accused and the death of the deceased. It might be noted, in this respect, that the Crown also lead evidence as to telephone calls between Mr Murray and the accused on the day of the shooting as well as telephone records showing the accused connecting into the Eastwood area where Mr Murray lived both before and after the shooting.

6. [22]

   The Crown submitted that the accused had a reason to be concerned about Mr Murray based upon what had happened prior 3 October 2014 where had had made statements which contained significant lies representing a consciousness of guilt. It was contended the accused was concerned about Mr Murray based on what had happened prior to 3 October 2014.

7. [23]

   Whilst it was conceivable, on the evidence in the proceedings, that the accused was in Eastwood for the purposes of visiting Mr Murray, there is no evidence that the accused made any admissions to Mr Murray such that the accused would be concerned about Mr Murray speaking to the police and thereby move him overseas. I agree with the submission of the accused that the Crown was seeking to draw an inference in the absence of any evidence from which a rational inference could be drawn.

8. [24]

   Leading up to the conversation recorded on 10 October 2014, the police unsuccessfully attempted to contact Mr Murray at his home, and left a business card under the door. On 9 October 2014, Detective Senior Constable Skavanis spoke to Mr Murray who said he would not meet with police.

9. [25]

   On 10 October 2014, the surveillance device captured a conversation between the accused and his wife about the police and what Mr Murray stated to the police. It was submitted by the Crown that the timing allows an inference that the accused was at Mr Murray’s house after the police left their card at Mr Murray’s house and before Mr Murray contacted the police independently of his lawyer. It is also contended that whispering on p 31 of the record of conversation between the accused and his wife allows inference they knew why police want to speak to Mr Murray.

10. [26]

    The Crown submitted that the totality of the evidence in relation to Mr Murray would allow the jury to infer that the accused was of the view that the police thought that Mr Murray might be able to provide them information about the accused’s movements on the evening of the shooting and he acted accordingly by discussing his concerns with his wife including that Mr Murray leave the jurisdiction. However, the accused made no admission as to being with Mr Murray on 4 March 2014 and said nothing to suggest that he either told Mr Murray not to speak with police or that he had any concerns about Mr Murray speaking with police.

11. [27]

    I agree with the submission of the accused that, whilst there was no evidence the accused played any role in Mr Murray’s decision not to cooperate with police, his evidence could easily be misused by the jury particularly when evidence was adduced as to the accused’s movements on 4 March 2014. Together with the evidence in the recording of 3 October 2014, there is a prospect the jury may speculate as to whether the accused was at Mr Murray’s house on 4 March 2014 and, if he was, why he was there. That may lead to further speculation about why Mr Murray would not speak to police.

Evidence relating to the execution of a search warrant at 10 Yarram Street, Lidcombe

1. [28]

   The accused objected to evidence being led of the finding of three .38 special cartridges with a Winchester stamp and one .38 automatic cartridge with a Winchester stamp during the execution of a search warrant at 10 Yarram Street Lidcombe some 15 months after the death of Mr Panagakos. The cartridges were found in a bedroom used by the accused.

2. [29]

   The accused relied on a relevance objection and a s 137 objection such that it was submitted the probative value of the evidence did not outweigh the danger of unfair prejudice.

3. [30]

   The Crown contended the evidence related to ballistics and crime scene evidence forming part of its circumstantial case. The evidence was relevant because it showed that the accused had access to a cartridge of the type used in the murder (five fired cartridge cases of .38 automatic calibre).

4. [31]

   The evidence was also led to show familiarity and capability with firearms.

5. [32]

   Finally, the Crown contended the evidence was to be led to contradict a statement by the accused that he had no access to firearms.

6. [33]

   Notwithstanding the three .38 special cartridges found at 10 Yarram Street, Lidcombe could not have been used in the murder weapon, and there was insufficient detail to identify or eliminate the .38 automatic calibre cartridge as having been cycled through the murder weapon, the evidence is relevant to demonstrate the accused had access to firearms contrary to his statement of 1 December 2014.

7. [34]

   The probative evidence of bullets derived from the accused living in the bedroom where the bullets were found at the time of the murder and the accused stating that the cartridge “could be his” in the context of him accepting a knowledge and use of firearms. It may also be noted that some other items were located in the room.

8. [35]

   The absence of evidence as to how long the bullets had been in the draw, including whether it was in the draw prior to the murder diminishes the probative value of the evidence. However, the Crown relied upon the following evidence showing a temporal connection:

9. [36]

   In my view, the probative value outweighed the danger of unfair prejudice such that the jury may reflect upon whether the accused had access to a .38 calibre bullet at the time of the shooting.

Evidence of the accused’s movements on 1 December 2014 and ERISP questions about those movements (ERISP 1 December 2014 Q 236-243)

1. [37]

   During the ERISP on 1 December 2014 the accused was asked how he arrived at the police station that day. He told police that he arrived by train.

2. [38]

   Unbeknownst to the accused, he was being followed by police. Police observed the accused driving from his home to Campsie prior to attending Campsie police station. It follows that the answers he gave at Q 236-243 were a lie.

3. [39]

   During the course of the interview the accused was asked about whether he had ever borrowed a car from Mr Zreika. He told police that he had borrowed a car within the last month, being a Ford station wagon, which he later described as being silver or champagne gold. The car he described was the same car he used to drive to the police station that day.

4. [40]

   The Crown submitted the relevance of the evidence was that it went to the credit of the accused. However, the untrue statement by the accused was not a material lie (that is, it is not a lie that is about anything of significance in the trial). How he got to the police station that morning had no bearing on his movements on 4 March 2014, or his relationship with the deceased. The accused correctly submitted the material could not be used as consciousness of guilt given the lack of relationship to any fact in issue.

5. [41]

   It follows that the only basis on which this evidence could be admitted is that it goes to the credit of the accused, and is therefore caught by s 102 of the Evidence Act. It follows that the evidence should not be admitted.

Listening device recording of 1 December 2014

1. [42]

   This conversation occurs in the morning of 1 December 2014, several hours before he was interviewed by the police. It is after the accused has made two statements to the police.

2. [43]

   The Crown correctly submitted that this statement amounted to an admission which, along with the other evidence in the case, could be utilised by the jury to infer guilt.

3. [44]

   Whilst it is strictly unnecessary to deal with the further submission of the Crown in this respect, for completeness I note that I agree with the Crown submission that the statement is nevertheless admissible in the context of other statements made by the accused to his wife. In particular, the evidence is relevant to the assessment of claims which the accused made about the deceased in his 15 December 2014 interview which claims were not made to his wife on the morning that he chose to be interviewed by the police about these matters.

4. [45]

   It is also relevant to what the accused outlined to his wife about what happened on 1 December 2014.

Listening device recording of 3 December 2014

1. [46]

   The Crown proposed to lead the first part of this conversation, deleting from pp 7.2 onwards “what are we going to do if it comes back to me” to the end of the conversation.

2. [47]

   The Crown also proposed to delete p 2.3 “because they look at my records and look at the old bloke’s”.

3. [48]

   The Crown submitted that this conversation was significant because it undermined the accused’s answers provided to the police in his interview of 15 December 2014 where he suggested the shooting of the deceased was related to significant drug related activity. If the jury accepted that this conversation incorrectly stated what took place between the police and the accused on 1 December 2014, it would assist them in reaching the conclusion that the accused lied to the police in his interview of 15 December 2014.

4. [49]

   In my view, the accused was correct to submit that the recording contained no admissions and was accordingly not relevant. The recording also referred to past criminal behaviour by the accused and his association with criminals which is unfairly prejudicial to the accused.

Listening device recording of 31 December 2014

1. [50]

   The Crown proposed to lead portions of this conversation, namely pp 1-4.6, up to where the accused says, "yeah", and pp 20-24.

2. [51]

   The Crown submitted that this statement amounts to an admission which, along with the other evidence in the case, could be utilised by the jury to infer guilt. It was contended that it was for the jury to assess the weight which they would attach to this evidence.

3. [52]

   This was a recording of an argument between the accused and his wife. In the course of what was a vicious argument, the following was recorded:

4. [53]

   Later after various accusations of infidelity and other terms of abuse are exchanged, the following exchange was recorded:

5. [54]

   The accused then told his wife to go and tell police.

6. [55]

   I do not accept the submission of the Crown that the responses of the accused in this emotive argument between himself and his wife amount to an admission of guilt. They were, therefore, not relevant.

7. [56]

   In any event, even if relevant, they had limited probative value and a substantial likelihood that the evidence would be misused by the jury by giving it a significance that is largely driven by the emotive exchange between husband and wife. Hence, if they were relevant, the recordings would fall to be excluded by the operation of s 137 of the Evidence Act.

Other objections from the ERISP of 1 December 2014: Q 623-624

1. [57]

   The police, in two questions 623-624, succinctly summarised much of the circumstantial case against the accused. The Crown contended that it was not unacceptable for the police to ask such questions, especially when they were part of a series of questions related topics. The Crown submitted the questions and answers should remain.

2. [58]

   The Crown proposed to delete "It's like… Yes that's right" and submitted that the remaining question should remain as it is part of a series of questions which go to the issue of the accused explanation for his admitted disposal of the phone shortly after the shooting where the Crown alleged that the disposal of the phone was post offence conduct exhibiting a consciousness of guilt.

3. [59]

   The accused submitted that the questions assume there is a connection between the phone calls and the death of the deceased. It was also submitted that it reversed the onus of proof and requires the accused to explain something that has not been proved by the Crown.

4. [60]

   I agree with the submission of the Crown outlined above that the two questions (or so much of them as remain after the concession of the Crown), succinctly summarised much of the circumstantial case against the accused and is not unacceptable for the police to ask such questions especially when they form part of a series of questions on the topic in question and related topics.

Conclusion

1. [61]

   I confirm my rulings of 10 September 2018 (see at [3] of the judgment) for the reasons given above.