R v Jaghbir (No 3)

1. [1]

   Ahmed Jaghbir was arraigned before me on 7 September 2020 and entered a plea of not guilty to the following charge:

2. [2]

   The trial was conducted without a jury. The accused had made application for a judge alone trial by a notice of motion filed on 2 March 2020. That notice of motion was not dealt with at the time because, for other reasons, the trial which was listed to start on 16 March was vacated on 2 March. Ultimately I heard the notice of motion for a judge-alone trial on 16 July 2020, and at the conclusion of the argument I made an order that the trial be conducted by judge alone, with my reasons to be provided at a later time. Those reasons were provided on 29 July 2020: R v Jaghbir (No 2) [2020] NSWSC 955.

Legal principles

1. [3]

   In a judge-alone trial, s 133 of the Criminal Procedure Act 1986 (NSW) requires me to set out principles of law which I apply, and to make findings of fact on which I rely. It also requires me to take any warning I would be required to give to a jury into account in dealing with the matter.

2. [4]

   This is a criminal trial. In a criminal trial the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything subject to limited exceptions. The burden rests upon the Crown in respect of every element of the offence with which the accused is charged.

3. [5]

   The Crown must prove beyond reasonable doubt both that unknown persons committed a serious indictable offence, being murder in the present case, and that the accused person was an accessory to that crime before it was committed.

4. [6]

   A person is guilty of being an accessory before the fact where at some time before the crime was actually carried out, he or she (here it is “he”) intentionally encourages or assists the principal offender to commit that crime. Therefore, there must be some act committed by the accessory that was intended to bring about the crime later committed by the principal offender.

5. [7]

   The elements of the offence of being an accessory before the fact are these:

6. [8]

   The act of an accessory can consist of conduct of encouraging, including advising, urging or persuading the principal offender to commit the crime, or it can be assisting in the preparations for the commission of the crime.

7. [9]

   In this case, the Crown alleges, and must prove beyond reasonable doubt, that the accused provided assistance by:

8. [10]

   Before a person can be convicted of being an accessory before the fact, the Crown must prove beyond reasonable doubt that, at the time of the assistance, the accused knew all the essential facts or circumstances which would make what was later done a crime. This includes the state of mind of the principal offender when those acts are carried out. The accused need not actually know that what he encourages and/or assists the principal offender to do is in law a crime. The accused does not need to have the legal knowledge that the conduct to be committed by the principal offender actually amounts to a criminal offence. But he must believe that what he is encouraging and/or assisting the principal offender to do are acts that make up the crime committed.

9. [11]

   Here, according to the Crown’s allegation, the crime foreseen by the accused was the offence of murder. The Crown must, therefore, prove that, at the time of the alleged assistance given to the principal offender, the accused foresaw that the principal offender(s) would shoot the deceased. Further, the Crown must prove beyond reasonable doubt that the assistance given by the accused was aimed at the commission by the principal offender(s) of that criminal act.

10. [12]

    The Crown case is a circumstantial one. I note the following principles. In a circumstantial case, no one fact can prove the guilt of the accused. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based on the basic facts is that the accused is guilty of the offence charged.

11. [13]

    In reaching my verdict, I must act impartially and dispassionately. I must not let emotions sway my judgment. My task must be undertaken free of prejudice or sympathy in any of its forms.

The layout of the building

1. [14]

   To understand the case put forward, I first need to give a detailed description of the unit complex in which the deceased resided.

2. [15]

   The deceased, who was known as “Blackie”, resided at unit 6/8 Bennett St, Mortlake. 8 Bennett Street consists of two four storey buildings. There was a front building on Bennett Street and a back building close to the Parramatta River. In between the buildings was common area which included a swimming pool. I shall call the area between the buildings the “pool area”.

3. [16]

   The building at the front faced roughly east so that the rear of the back building adjacent to the river faced west. The deceased resided in unit 6 on the second floor of the back building. There were two units per floor and unit 6 was on the southern side of the building. Each unit extended from the front to the back of the building.

4. [17]

   The front building could only be accessed by a key or electronic access. Electronic access means that the entrant had a proximity key (or fob) which opened the door or gate, or that the unit owner permitted access by activating a buzzer in their unit after contact was made through an intercom on an access panel. There was a pathway down the southern side of both buildings leading towards the Parramatta River. There was a metal gate on Bennett Street for which a key was necessary. However, the evidence was that this gate was invariably not closed. Entry to the car park was on the right or northern side of the buildings. It was accessed electronically. The car park was in two connected sections, one under each building.

5. [18]

   Halfway down the pathway on the southern side there was a gate which enabled access to the pool area. That gate could only be accessed electronically. However, as the CCTV footage shows, it was easy for a person to put their hand through the metal slats and open the gate using the handle on the inside.

6. [19]

   Access from the pool area to the back building could only be obtained through a glass door or an adjoining steel grille door. Entry through the glass door was by key or electronic access. The steel grille door was accessed only by a key. Access through those doors led only to units 1 and 2 on the ground floor, to the car park by a set of stairs on the eastern side of the back building or to the lift. The lift also went down to the carpark. It was necessary to have a fob to obtain access to higher floors by the lift. The fob provided access only to the floor on which the holder of the fob resided.

7. [20]

   The back building could also be accessed from the Parramatta River side. There were two adjoining doors. The right hand door gave access to units 1 and 2, the stairs to the car park and lift. The left hand door gave access to fire stairs proceeding up to level 1. Access through these doors was by a key only.

8. [21]

   To obtain access to a higher level than level 1 by the use of the stairs, it was necessary to pass through a steel grille gate on each floor which could only be opened by a key. The evidence was that frequently these gates were left open. None of these grille gates had self-closing mechanisms. They did not by their own weight close automatically. A person descending from a higher level was able to open the gates by pulling down on a handle to gain access to the lower floor and ultimately to the outside of the building. It was possible, if attempting to gain access to a higher floor, for a person to put their hand through the slats of the gate and turn the handle on the other side of the door to open it.

9. [22]

   There are six CCTV cameras located at various locations throughout the unit complex. Two of particular significance were camera 2 above the front entrance door to the back block from the pool area, and camera 3 above the entry to the fire stairs at the rear of the back block.

The evidence

1. [23]

   I do not intend to detail the evidence given by each of the witnesses. This is because the factual matters are largely not in dispute. Indeed, an Amended Crown Case Statement was put forward as agreed facts, and became Exhibit ZZZZ. The parties agreed that the issues between them would be determined by what inferences were to be drawn from the largely agreed facts. Nevertheless, the accused pointed to some matters about which factual findings need to be made. What follows is a summary of the evidence which also constitutes my factual findings. Where it is necessary to determine disputed facts that will be done later in the judgment unless otherwise indicated in the evidence summary.

2. [24]

   The unit had been rented by the deceased’s wife, Amanda Nabhan in November 2016. Both the deceased and his wife lived there until they separated in December 2016. The deceased’s wife moved out.

3. [25]

   In January 2017, Adam Dawson and Kate Stapley moved into unit 1 on the ground floor of the back block. They become associated with the deceased, and Mr Dawson would socialise with the deceased.

4. [26]

   The deceased and the accused were friends, and were in regular contact. They had a number of mutual friends including Esam Elkodat (aka Sam Husseini) and Ahmad Ahmad (aka Rock).

5. [27]

   On 9 April 2016 Safwan Charbaji was murdered and Abdullah El Masri was wounded. Mahmoud Ahmad was charged with Charbaji’s murder. On 29 April 2016 Mahmoud’s and Ahmad Ahmad’s brother, Walid Ahmad, was shot dead in Bankstown. Since that time the Ahmad family had been under close police attention. Subsequently, on 25 October 2016, Hamad Assad was murdered. His murder was thought to be in retaliation for the murder of Walid Ahmad. The deceased and Ahmad Ahmad were suspects in Assad’s murder. It was thought that all of these shootings may have been related, and all were being investigated by the Middle Eastern Organised Crime Squad.

6. [28]

   By February 2017, the deceased was under police surveillance. A Firearms Protection Order (FPO) had been served on him. His phone calls were being monitored, and police regularly visited him at his unit. At about 2.30am on 4 February 2017, the deceased was shot at on Parramatta Road. The evidence did not disclose who was responsible for the shooting, nor did it suggest that the assailant(s) had been identified.

7. [29]

   The accused lived with his parents in Lidcombe. He worked as an electrical trade assistant with MNI Electrospark, undertaking maintenance work for the Department of Housing. From 8 March 2017 until his arrest on 8 November 2017, his mobile phone was being intercepted. The evidence also suggests that he was under investigation before that time, probably since January or February 2017 and that he had a FPO placed on him. The accused, Emad Sleiman and Mustafa El-Hallak were all close associates.

8. [30]

   At about 6:30am on 2 March 2017 the police attended to carry out a search of unit 6/8 Bennett St pursuant to the FPO. In the absence of the deceased being at the unit, access to the unit was obtained by forcing entry through the unit door. In the process the door and its lock were damaged such that the door could no longer be secured.

9. [31]

   At about 2:15pm the real estate agent, who had become aware of the damage to the door that morning, met with the deceased and a person who was a locksmith and fire door expert, Todd Bidewell, from Bell Locksmiths. Mr Bidewell told the deceased he would repair the door pending the arrival of a new, custom-made fire door. However, the deceased said that he would rather arrange and pay for someone to install a new solid core door until the fire door was ready. The agent agreed to this. Mr Bidewell left a new Lockwood 001 dead latch in a red box with the deceased to use on the temporary, replacement door. Mr Bidewell was planning to re-use that lock on the new fire door when it was installed.

10. [32]

    Shortly afterwards, the deceased telephoned an associate of his, Gerrard Gideon, and told him that the real estate agent was only going to patch the damaged door until the fire door was ready, but that he (the deceased) did not want to leave things like that. He asked Mr Gideon if he could “get ‘Snake’ to get me a whole new door and come put it on” (who ‘Snake’ was, was not identified, but it was not the accused). The deceased told Mr Gideon that he had a lock, and that he would text through the door measurements. In the course of the conversation the following exchange occurred:

11. [33]

    At about 5:40pm Mr Elkodat arrived at the deceased’s unit. While he was there he contacted the accused and asked him to change a door for him at “Black”. There was no evidence explaining the change of plan from having Mr Gideon organising ‘Snake’ to fix the door, to Mr Elkodat organising the accused to do the work. The accused said he could get a person called Dario there in an hour, and asked Mr Elkodat to send him the measurements. A little later the accused and the deceased spoke on the phone about the door measurements.

12. [34]

    The accused subsequently called a work colleague and handyman, Dario Ratinon, and asked him to fix the door that night. The accused said he would buy a new door, but asked Mr Ratinon to secure the broken one that night.

13. [35]

    At 7:45pm that evening Mr Ratinon arrived at the property. The deceased showed him the front door which had a hole in it next to the door handle and the lock. The deceased also called the accused and complained that Mr Ratinon did not have a new door. Mr Ratinon then spoke to the accused and told him that he (Mr Ratinon) had been unable to find a new door at Bunnings that evening but that he would secure the door with plywood sheets and put a new door in the unit the next day.

14. [36]

    Mr Ratinon secured the door by screwing sheets of plywood over the damaged areas on the inside of the unit. He also installed a Lockwood dead latch lock that he said he found inside the unit on the floor. Mr Ratinon could not recall where the keys to this lock were or if the latch was still in its packet when he located it. Mr Ratinon then left.

15. [37]

    At 8:57pm the accused told the deceased on the phone that he had a door which he would drop off in an hour and would arrange for someone to install it the next day. The accused then called another work colleague, Stuart Norton, and asked him to replace the deceased’s door the next day.

16. [38]

    That night the accused arrived at the unit complex at 10:46pm with the door. He and the deceased carried the door up in the lift. The CCTV footage shows the accused leaving the unit block at 11:07pm via the eastern/pool entry door.

17. [39]

    At 11.25pm the accused sent a text message to Mr Norton saying:

18. [40]

    The following morning (3 March) at about 7.00am the accused gave a single key to the deceased’s unit to Mr Norton, and $150 in cash to complete the job. Mr Norton and a work colleague, Kenny Habib, arrived at the unit complex. They were given access to the car park by Adam Dawson. They walked up to the ground floor but found they were unable to move the lift. Mr Dawson told Mr Norton that he would need a swipe pass to operate the lift. Mr Norton called the accused, who in turn called the deceased, and explained Mr Norton’s problem. The deceased told the accused to tell Mr Norton to go around to the back – that there were stairs he could walk up. He said to tell him “to tell my neighbour to let him in through there” and to use the stairs. (The neighbour was either Mr Dawson or Ms Stapley in unit 1.) The accused told Mr Norton to use the stairs. The Crown designated this information as “the Building Access Information” and, for convenience, I will similarly refer to it. The Crown identifies this Building Access Information provided to the accused by the deceased as significant. I will return to it later in the judgment.

19. [41]

    Mr Norton and Mr Habib then went around that way into the stairwell. They were able to open a steel grille door on one of the levels by reaching through the bars and pushing the handle down. On the second floor Mr Norton opened the door to unit 6 using the key the accused had given him.

20. [42]

    They discovered that the replacement door the accused had obtained was not a solid core door. They rang and told the accused he had got the wrong door, and they left the unit at 8.22am without installing it. Mr Norton returned the unit key to the accused at work at about 4:00pm on that day.

21. [43]

    At 8.46am the accused rang Emad Sleiman; the call lasted 85 seconds. At 2.47pm on that day the accused again called Mr Sleiman; this call lasted 29 seconds.

22. [44]

    At 5:55pm CCTV footage shows the accused and Mr Ratinon arriving at the building complex via the southern side path. The deceased let them into the unit. They removed the front door that had been patched and took it out of the building. The CCTV shows that the dead latch installed the previous night by Mr Ratinon had been removed from the damaged front door.

23. [45]

    Mr Ratinon said in his first statement that the lock he installed was one brought to the unit by the accused. He said the packet was open and there were two keys. In his second statement he said that he was not sure if he installed a new lock or used the same lock he had put on the door the night before.

24. [46]

    Mr Ratinon saw the accused hand the deceased “a key on a keyring”. He was not sure if there were two or more keys handed over, nor whether they were gold or silver, nor whether they were original keys or cut keys.

25. [47]

    When removing the door, Mr Ratinon said that he removed the door-closer. A new door that the accused had brought with him was installed by Mr Ratinon. He said that he did not fit the door-closer to the new door. He left it in the unit. However, the photograph of the living room of unit 6 taken the day of the murder shows that the door-closer was fitted to the new door.

26. [48]

    The accused and Mr Ratinon left the building complex by the southern path at 7.30pm. At 7.31pm the accused made a 25 second phone call to Mr Sleiman.

27. [49]

    Prior to the deceased’s murder, the real estate agent did not receive any keys for the new door installed by Mr Ratinon.

28. [50]

    At 9.29pm on 3 March Mr Sleiman made a 20 second call to the accused.

29. [51]

    On 5 March 2017 the accused and the deceased spoke on the phone during which the deceased asked the accused to obtain “one of those things a good one so I can put it on my door”. From the conversation the deceased earlier had with Mr Gideon, and from a later conversation he had with the accused, I take this to be a reference to an additional lock to be fitted on the inside of the door, probably a bolt with a security chain. The accused said he would come around either that afternoon or the next day. No such lock was installed.

30. [52]

    At approximately 3:30am on 8 March 2017 four armed intruders were captured on footage from CCTV camera 2 at 8 Bennett Street. They entered the complex via the southern side path. They obtained access to the pool area. Unit 2 on the ground floor had been unoccupied since July 2016. Unit 2 was on the southern side of the back building. It had a balcony near the entry to the foyer from the pool area. It had a sliding door into one of the bedrooms of the unit from the balcony. The lock on that sliding door was inoperable and it was often left unlocked. One or more of the intruders gained access to the foyer area of the back building by entering through that balcony door and walking through unit 2 and then out into the foyer. The glass entry door was then opened from inside. While in the building complex they removed the handles from the adjacent steel grille door which gave access from the pool area to the foyer area and to the car park stairs. These handles were later found in the burnt-out car which was believed to be the getaway car.

31. [53]

    At 2.52pm on 8 March 2017 Mr Sleiman rang the accused. They had a 42 second phone call. At 3.36pm the accused rang Mr Sleiman and they had a 34 second phone call. At 3.48pm the accused again rang Mr Sleiman and they had an 11 second phone call. At the same time, CCTV footage shows the accused alighting from a van and entering the building where Mr Sleiman lived in Park Road, Auburn. The same CCTV shows the accused leaving the building at 4.08pm and driving away in the van.

32. [54]

    At 5.15pm on 8 March 2017 the accused rang the deceased, and asked him if he could come down to measure to “put the lock in”. This appears to be a second lock which the deceased knew about and was, seemingly, requested by the deceased in the conversation he had with the accused on 5 March ([51] above]).

33. [55]

    At 5.50pm the accused walked down the southern path and through the gate into the pool area. As he walked towards the glass front door of the back block the CCTV shows him looking towards the steel grille door. As he entered the foyer, the Crown submitted that he looked again in that direction. I shall return to this matter later in the judgment. The accused left the premises at 6.15pm. At 6.17pm Mr Elkodat called the accused. The accused told him he’d been at “Black’s” to measure for a new lock he was going to get him, and put rubber around it.

34. [56]

    At 8:46pm on 9 March 2017 the deceased is captured on CCTV footage arriving at Autoline in Parramatta Road, Concord where he joined Mr Elkodat, Nicholas Agar and others for a poker game. At 9:23pm Fatima Hage is captured arriving at the premises to join the deceased. At 9:58pm the deceased and Ms Hage left the premises together. They are then seen at Java Lava Café and Cincotta chemist in Parramatta Road, Fivedock before returning to 8 Bennett Street at 10:30pm. At 10:52pm police attended at the deceased’s premises to check on him. They buzzed his unit and the deceased went down and met them at the southern side gate.

35. [57]

    The accused arrived home at Lidcombe at 11.23pm. He remained at home for the rest of the night.

36. [58]

    Mr Sleiman is captured on CCTV that night returning to the building where he lived at 10.39pm and leaving again at 9.11am on 10 March.

37. [59]

    At some time about midnight on 9/10 March 2017 Ms Hage went to bed and slept. At some point Ms Hage woke to find that the deceased was asleep on the lounge in the living room. She got him to come to bed with her. She said they both went to sleep. At 2:19am four armed assailants wearing disguises were captured on CCTV footage walking west along the southern side path of the complex. They entered the complex by the fire stairs door on the river side of the building.

38. [60]

    At about 2:30am Ms Hage was awoken. The bedroom was dark, the deceased yelled “Hey” and he pushed Ms Hage’s head, moving her away from him. Multiple shots were then fired at the deceased. Ms Hage said that the deceased said he was sorry. She said an Arabic prayer over him and he died. I will return later to discuss this account of the events.

39. [61]

    At 02:30:33, Ms Hage rang Mustapha Dib. She said she was at Blackie’s house, that he was dead, that someone came and shot him and she did not know what to do. He told her to call the ambulance.

40. [62]

    At 02:31:33 Ms Hage dialled Triple-0. She said she needed an ambulance because someone had been gunned down. The operator asked if the person was breathing and she said “No, he’s finished”. When she was asked what actually happened, she said “I don’t know I was just sleeping and I just heard screaming and then I looked and … it happened so quick.” She said he was dead, and when the operator asked if she should try CPR on him she said again that he was dead.

41. [63]

    At 02:39:36, Ms Hage rang Mr Elkodat. She told him that someone came and shot Blackie and he was dead.

42. [64]

    At 02:44:18 Mr Elkodat rang Ms Hage and asked if there were any police there. She told Mr Elkodat that the deceased was dead, that they shot him dead.

43. [65]

    At 02:46:11, Mr Elkodat again called Ms Hage. When she answered the phone she said to him that “they have broken his buzzer so I can’t even buzz the ambulance”.

44. [66]

    At 02:52:06, Mr Elkodat rang Ms Hage again to tell her that they were trying to get in and asking her why wasn’t it (presumably the buzzer) letting them in. She said she couldn’t, it was not letting anyone buzz anyone in. He told her to walk out the back door to let them in.

45. [67]

    The car used to transport the assailants was a white Mercedes Wagon which had been stolen on 30 June 2016. A review of CCTV cameras in various locations shows it travelling from Lakemba through Belfield, Concord, Cabarita to Bennett St from 1.59 am to 2.15am. From 2.32am it is shown driving through Cabarita, Concord, on Punchbowl Road and to Minnie St, Belmore, where it was set alight. When the car was examined, two fire damaged door handles were found in the driver’s side footwell. They were later identified as the handles that had been removed from the security grille door giving access from the pool area to the foyer and carpark of the back block at 8 Bennett Street.

46. [68]

    On 11 March 2017 Mr Elkodat and Ms Stapley are captured on phone intercepts talking about whether the police were still at the deceased’s unit. Mr Elkodat said he wanted to access the unit so he could pack the deceased’s belongings up. Ms Stapley said she would let Mr Elkodat know when the police were gone.

47. [69]

    On 16 March 2017 Mr Elkodat is captured on a phone intercept speaking with the deceased’s wife Amanda Nabhan. Ms Nabhan told Mr Elkodat that she would pick the key up for the new lock on the deceased’s unit from the police the following day and give it to Mr Elkodat. Phone calls between Mr Elkodat, Ms Nabhan and Mohamed Mousselmani the following day indicate that Mr Elkodat obtained the key for the unit that day and commenced clearing the unit out.

48. [70]

    On 20 March 2017 police gave the real estate agent a set of keys to the new lock they had put on the door to unit 6, after they had removed and seized the lock that was on at the time of the murder.

49. [71]

    At the end of March 2017, the police contacted Mr Dawson seeking to find out who had keys to unit 6 so that they could be returned to the real estate agent. Ms Stapley subsequently contacted Mr Elkodat and told him that he needed to return the unit keys to the estate agent. Mr Elkodat later left them in Ms Stapley’s letterbox for her to return them. A few days later, on 3 April 2017, Ms Stapley returned the keys to the agent but kept the fob key that was on the key ring because she wanted a new fob for her and Mr Dawson to use.

50. [72]

    On 12 April 2017 the police obtained a set of keys from the real estate agent for unit 6. That set included seven keys and what appeared to be a fob key, but which turned out to be a key related to the deceased’s membership of his gym, Fitness First.

51. [73]

    Call charges for Mr Sleiman’s phone indicate that he sent and received text messages during the early morning of 10 March at 12.04am and 4.21am using a cell site tower near his unit in Auburn.

52. [74]

    On 10 March at 9.02pm the accused is seen walking in front of the building where Mr Sleiman lived, talking to Daniel Godfrey.

53. [75]

    On 12 March at 9.12pm the accused, Moustafa Elhallek and Shadi Darwiche (a nephew of Mr Sleiman) entered the building where Mr Sleiman lived. They entered Mr Sleiman’s apartment. At 9.56pm the accused and Mr Elhallek left the building.

54. [76]

    On 29 March 2017 at 9.20pm Mr Sleiman was shot by an unknown assailant in the car park of the building where he lived.

55. [77]

    On 31 March 2017 Mr Sleiman’s parole was revoked and he was returned to custody.

56. [78]

    On 2 April 2017, in a phone call with his fiancé, Nadime El Afshal, the accused talked about being short of money. He said that he owed some thousands of dollars for work being done on the house. The following exchange occurred:

57. [79]

    This was a long conversation between the accused, Mr El-Hallak and a person described as Male 1 (M1). The conversation covered a number of matters but a good deal of it concerned the investigation into the deceased’s murder, the enquiries the police were making about the accused in that regard, as well as Mr Sleiman’s shooting and the fact that Mr Sleiman thought the accused might be responsible for it.

58. [80]

    At one point the accused got out of the vehicle to buy some tools that he had seen advertised. M1 and Mr El-Hallak continued talking about who Mr Sleiman thought was responsible for shooting him. It appears to be the case that both M1 and Mr El-Hallak thought that the accused was not involved in the shooting of Mr Sleiman, but M1 thought that Mr El-Hallak should talk to Mr Sleiman to persuade him that the accused was not involved. The conversation continued in this way:

59. [81]

    The accused then returned to the vehicle and there was a brief discussion about the tools he bought and the price he paid.

60. [82]

    The conversation then turned back to Mr Sleiman’s view that the accused was involved with his shooting as follows:

61. [83]

    A little later in the conversation, the following is said:

62. [84]

    I accept that the conversation between M1 and Mr El-Hallak when the accused was not present may only be used for context purposes. I do not use anything said by them when the accused was not present against the accused, nor draw any inference against him arising out of anything they said.

63. [85]

    When the deceased was arrested on 8 November 2017 he was placed in a room at the police station with his brother Ali. The conversation between them was recorded. The following was said:

Expert evidence

1. [86]

   Witnesses may ordinarily only give evidence about what they observe, hear or perceive. However, if a person has specialised knowledge based on the person’s training, study or experience they may give evidence of an opinion that is wholly or substantially based on that knowledge. Expert evidence is admitted to provide a jury or a judge as fact-finder with information and opinion which is within the expert witness's expertise but which is likely to be outside the experience and knowledge of the average layperson.

2. [87]

   Mr Ross Squire, is an expert forensic locksmith who provided a report and gave oral evidence. His evidence may be summarised as follows.

3. [88]

   The lock on the sliding balcony door to unit 2, through which the intruders gained access on 8 March, was inoperable. The result was that it was possible to access unit 2 from the balcony outside, and thereby gain access to the foyer area on the ground floor, and thereafter the carpark by a flight of stairs down.

4. [89]

   There was no evidence that the lock to the door leading to the fire stairs on the river side of the back block had been tampered with. One of the keys returned by Ms Stapley to the estate agents some days after the murder was an original key to this lock. Ms Stapley had received a set of keys which had, at one time, been in the possession of the deceased. They had been given to her by Mr Elkodat who had earlier obtained them legitimately to clear out the deceased’s belongings from unit 6.

5. [90]

   The key to that lock was of a kind that could not be duplicated other than through Sydney Locksmiths. Businesses which, in the ordinary course, duplicate keys do not have the facility to duplicate such keys and are not permitted to do so. That is because the key blanks and profiles are not supplied to locksmiths who are not part of the registered system. Mr Squire accepted that the system was not perfect.

6. [91]

   Mr Squire said that the entry door to the fire stairs would automatically close because of the door-closer mechanism. The only way the door would be found in an open or ajar position would be if someone had put something in place to hold it ajar.

7. [92]

   The lock to the grille door located on level 1 and giving access to level 2 showed no signs of tampering or interference. The key to the door referred to in paragraph [89] also operated the lock on the grille door on level 1. Mr Squire found that on three or four separate occasions when he visited the premises that this grille door and other internal grille doors were either partly or fully ajar.

8. [93]

   The lock installed on the door to unit 6 had not been tampered with. The lock was issued with two original keys. One of these was on the set of keys given by Ms Stapley to the estate agents, and the other had been found on a table near the door by Detective Scifleet. The key returned by Ms Stapley had markings indicating that it had been duplicated. There were no markings on the other single key to indicate that it had been duplicated.

9. [94]

   The damaged handles recovered from the burnout car were the handles which had been removed from the steel grille door giving access to the foyer to units 1 and 2 from the pool area. They were examined by Mr Squire. He determined that, if an operational key had been made from the key mechanism in the external handle, it would not have fitted any of the other doors in the building.

10. [95]

    Relevant to the question of how access might have been gained to the rear fire stairs and to level 2, was the time the assailants were in the rear building. This was calculated by the times shown on the CCTV. The assailants were captured immediately before they entered the building and immediately after they left it. The time was 3 minutes and 44 seconds. Whilst at the premises, Mr Squire’s assistant traversed the route taken by the assailants using two different methods. The first method involved unlocking the two doors through which the assailants had to pass. The second method involved the grille door on level 1 being left open.

11. [96]

    Mr Squire concluded that the assailants were either in possession of keys to both the rear entry door and the door to unit 6 or that the doors had been left open.

Accused’s silence and decision not to give evidence

1. [97]

   The accused did not give evidence himself, nor did he call any evidence. An accused person may always, by giving evidence or by calling other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or parts of the Crown's case, but there is no obligation to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. The accused is presumed to be innocent by me until I have been satisfied beyond reasonable doubt by the Crown that the accused is guilty.

2. [98]

   Although the accused may give and call evidence in relation to the whole or any part of the Crown's case by way of explanation for it or by way of additional matters which the accused may wish to raise, the accused may equally elect to give no such explanation, nor call any evidence in that regard. The accused is entitled to say nothing and make the Crown prove his or her guilt.

3. [99]

   The accused's silence in court and his election not to call any evidence cannot be used against him. His election not to offer an explanation of the whole or any part of the Crown's case by giving evidence or calling evidence constitutes no admission by him and no inference can be drawn from that fact. Nor can such an election be used by me to fill gaps in the evidence tendered by the Crown, and it may not be used in assessing whether the Crown has proved its case beyond reasonable doubt.

4. [100]

   I cannot speculate about what might have been said in evidence if the accused had given evidence.

5. [101]

   When asked to participate in an Electronically Recorded Interview with a Suspected Person (ERISP), the accused said that he was not prepared to answer any questions. That was his right, as he was advised by the police. I cannot use his exercise of that right against him, nor can I draw any inference from that decision not to answer questions. Whilst the accused answered a number of questions asked of him by the police in the ERISP, at a certain point in the interview he said he would not answer any more questions. That was also his right and I cannot use that against him, nor draw any inference against him for why at that point he ceased to answer questions.

6. [102]

   The accused was also given a special caution. However, nothing adverse can result from his failure to mention anything in circumstances where he did not give evidence or rely on anything in his defence of the Crown’s case.

7. [103]

   It is necessary for me to give consideration to what the accused has said at various times, but in particular in his ERISP.

8. [104]

   The relevant part of the ERISP is as follows:

9. [105]

   On 6 June 2017, in a phone call from the accused to Detective Senior Constable Tearne, the accused was complaining about the enquiries police were making of him, his family and friends. The following conversation ensued:

10. [106]

    On 29 June 2017 the accused called Detective Tearne. The call appears partly to have been a complaint that another police officer had not contacted the accused as he had promised to do, and also to complain about the way the police were treating him and other people associated with him. During the course of the conversation, the accused told Detective Tearne that the deceased was his mate and that the deceased had called him and asked him to send a carpenter. After telling Detective Tearne that although he had physical problems he did not live off Centrelink but went to work every day. The conversation then continued:

Submissions

1. [107]

   There is no dispute that element (i) of the offence is satisfied.

2. [108]

   In relation to the remaining elements to be proved, the Crown points to the following matters which it says, when taken together, lead to the only rational inference, namely that the accused is guilty of the offence:

3. [109]

   The Crown submitted that there were other minor matters in the evidence which should also be added into the mix. These included what were said to be lies by the accused to a number of persons which amounted to a consciousness of guilt. The lies were said to be constituted by silence, in that the accused omitted to disclose the full extent of his involvement particularly his possession of a key to the unit at an important time. It was submitted, alternatively, that these lies by omission could be used as other circumstances which, when considered with the above matters, lead to a conclusion of guilt as the only rational inference.

4. [110]

   The Crown submitted that there are no intermediate facts (in the sense discussed in Shepherd v The Queen (1991) 170 CLR 573) which the Crown needed to prove beyond reasonable doubt. That is to say, there is no intermediate conclusion of fact that is a necessary link in the chain of reasoning.

5. [111]

   The Crown drew attention to what was said in Plomp v the Queen (1963) 110 CLR 234, recently referenced in The Queen v Baden-Clay (2016) 258 CLR 308 at [69], concerning testing human experience and credulity, and submitted that a consideration of the various basic facts, particularly the accused’s access to the key to the unit, what was said in the admission and the further admission, the accused’s being owed $25,000 by Mr Sleiman, the timing of the contacts with Mr Sleiman, and the deceased’s suspected involvement in the shooting of the accused’s friend Hamad Assad, would lead to the only rational inference that the accused had provided assistance to the assailants knowing that they intended to kill the deceased.

6. [112]

   The Crown submitted that while motive may more readily allow the Court to conclude that the accused was guilty of the offence, it was not an essential element to prove. The Crown, nevertheless, pointed to two matters. The first was the debt which he was owed by Mr Gideon of $265,000 and in respect of which, having gone to Mr Sleiman about it, the accused was prepared to turn against “them”, being Mr Gideon, the deceased and their crew. Secondly, the Crown submitted that it should be inferred that the $25,000 owed to the accused by Mr Sleiman related to the killing of the deceased and the accused’s role in it.

7. [113]

   Mr James QC submitted that there are three intermediate facts which need to be proved beyond reasonable doubt. The first was that Mr Sleiman arranged or participated in the killing. Mr James submitted that the Crown cannot establish that Mr Sleiman was so involved beyond reasonable doubt, and that no such inference can be drawn from the evidence, which was simply that there was contact between them at various times, particularly when the evidence showed that they had other business relations. The reliance on what was said to be the admission was a bootstraps argument and assumed Mr Sleiman was involved.

8. [114]

   The second intermediate fact was the motive of the accused. Thirdly, he submitted that the provision of the key or imparting of the Building Access Information would have to be established beyond reasonable doubt. The provision of the key or the imparting of the Building Access Information cannot be considered to be intermediate facts. They are the assistance said to be provided. In that way, they are ultimate facts or conclusions, and I accept that they must be found beyond reasonable doubt.

9. [115]

   Mr James referred me to the principle that was established in Briginshaw v Briginshaw (1938) 60 CLR 336 in relation to the proof needed relative to the importance of the conclusion to be established. He submitted that such an approach was called for when determining the inferences that could be drawn from the basic facts put forward by the Crown. He also drew my attention to principles involved in drawing inferences, and distinguishing them from conjecture, from such cases as R v Merritt [1999] NSWCCA 29; Burrell v R [2009] NSWCCA 163; and Davidson v R [2009] NSWCCA 150.

10. [116]

    Mr James submitted that the Crown had put forward a number of scenarios which were not consistent with one another. These included a motive that involved being paid $25,000 by Mr Sleiman for providing the key; a motive involving an attempt to recover $265,000 owed by Mr Gideon; or a motive involving reprisal against the group to which the deceased and Gideon belonged because the amount had not been paid. Mr James submitted that the motive in the present case was entirely conjectural.

11. [117]

    Mr James submitted that nothing could be inferred from allegiances and affections amongst the various people identified in the trial, nor from viewing the various killings as reprisals or retribution.

12. [118]

    Mr James submitted that, since the four intruders on 8 March did attempt to enter through the rear door of the back block, no connection with the accused could be inferred. This was because it was the Crown case that the accused had imparted the specialised knowledge about the existence of the rear door, and yet that knowledge was not availed of on 8 March. In that way, for all that is known, the intruders may simply have been staking the place out with no connection to the accused. Mr James submitted that, in any event, the accused had no specialised knowledge because a large number of people knew the back fire stairs were an access point. Mr James submitted that the Court could not be satisfied beyond reasonable doubt that he provided the Building Access Information because he did not have that information sufficiently to the exclusion of others. In that way it could not be said that he was the one who passed it on.

13. [119]

    Mr James submitted that Ms Hage’s evidence was unreliable. He submitted that she had given different accounts at different times of what occurred in the unit that morning, and that it could not be assumed from her evidence that the deceased did not in fact answer the door, thinking they were police, and let the assailants in. Mr James pointed, in that regard, to the scattering of the gun cartridges and to the fact that the deceased was shot in the back and the back of the legs.

14. [120]

    Mr James submitted that the removal of the handles from the pool area steel grille door did not in any way assist the later entry into the building by the assailants on 10 March. In that way there was nothing sinister about the fact that the accused may have looked towards the broken lock area on that door.

15. [121]

    Mr James submitted that, as far as the key was concerned, there was no evidence that the deceased restricted the use of the keys to the unit. He submitted that the deceased himself may have duplicated the key at least because it was necessary for the agent to have a key. Mr James submitted that the Crown concentrated only on the fact that the accused had a key, and did not demonstrate that nobody else could have obtained a duplicate key, nobody else could have arranged the duplication of the key, and that it had to have some sinister involvement. Mr James said that the evidence of Mr Ratinon about the key left a lot of confusion as to which key was in whose hands at what point of time.

16. [122]

    Mr James submitted that all of the people involved (Sleiman, Elkodat, and the deceased) were or would have expected to be under surveillance. He submitted that after the murder the accused would also have expected to be observed. He submitted that nothing in the accused’s conduct in that intensive surveillance and monitoring period yielded anything by way of an unequivocal admission or fact inculpating him.

17. [123]

    Mr James submitted that the Crown’s submissions amounted to an assertion that, unless a rational alternative hypothesis is propounded and established, then the Crown case became easier to accept. Mr James submitted that this amounted to a reversal of the onus of proof. Mr James submitted that the Crown must exclude that anyone other than the accused could have done the things said to amount to the provision of assistance.

Assessment of the evidence and consideration of the circumstantial case

1. [124]

   Where the case made by the Crown is a circumstantial case, it is not, of course, appropriate, to assess each of the strands in the cable individually to reach a final view about the accused’s guilt, whether that final view be that the matter is proved beyond reasonable doubt or not. Rather, the various circumstances are to be assessed together and, after doing so, it must be asked whether there is an inference consistent with innocence that is reasonably open on the evidence.

2. [125]

   In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court said:

3. [126]

   As I have indicated, there was little challenge to the factual matters already set out. Detective Maree, the officer in charge, was not cross-examined at all except to obtain clarification of Exhibit A (CCTV photographs) and Exhibit B (an aerial photograph of 8 Bennett St).

4. [127]

   Mr James objected to evidence relating to Mr Sleiman’s shooting and evidence of any alleged connection between Mr Sleiman and the accused. However, he accepted that the evidence should be admitted so that its relevance could be determined in the final judgment. Mr James also accepted that in a circumstantial case, relevance may not be able to be assessed until the whole of the evidence was considered. Further, he accepted, in relation to objections made concerning the statement of Detective Sergeant Joseph Maree of 12 January 2018 that to the extent that the material was put forward as context evidence, it was admissible.

5. [128]

   Although Mr Elkodat was cross-examined, Mr James said that nothing he said was of importance on which I could rely.

6. [129]

   When I consider the evidence given by the witnesses I take into account not only the evidence they gave but how they gave their evidence. I observe their body language. I consider whether they may have been nervous for being in unfamiliar and very formal surroundings. I first consider whether they are truthful witnesses and, if they are, whether they are reliable. I take into account that the events in question took place up to three years ago. I have regard to consistencies and inconsistencies in the evidence they gave in the witness box, and to whether their evidence was consistent with out of court statements or other objective material. I may accept part of a witness’s evidence and reject other parts.

7. [130]

   I was not asked by either counsel to give a warning to myself about the reliability of any witness on any ground in s 165 of the Evidence Act 1995 (NSW) or otherwise. Nor do I consider that I should do so. It was not suggested in particular that either Mr Elkodat or Ms Hage might reasonably be supposed to be criminally concerned in the events giving rise to the proceedings. Mr James submitted, however, that I would find that Ms Hage was an unreliable witness.

8. [131]

   Mr Elkodat was not a very satisfactory witness. He claimed an inability to remember almost anything that was not presented to him incontrovertibly such as telephone intercepts involving him. His inability to remember making contact with the accused about changing the deceased’s door until the telephone call he made to the deceased was played was untruthful. So too was his evidence concerning his knowledge of various people and their friendships or relationships with each other.

9. [132]

   Ultimately, his evidence was most relevant in relation to what happened to the keys to the unit after the murder, although as the agreed facts made clear, there was little dispute about that matter. Having listened to the various intercepted phone calls to which he was a party after the murder, I accept his evidence that he did not have anything to do with the deceased’s murder, that he did not have keys to the deceased’s unit before the murder, and that he did not get a duplicate key made to the deceased’s unit.

10. [133]

    The only witness whose evidence was challenged was Ms Hage, and that challenge appeared to relate only to her evidence that suggested that the assailants were not let into the unit by the deceased. The basis for the challenge came from a contemporaneous note made by Constable Connan Di Benedetto after Ms Hage had left the unit when the police arrived. Ms Hage was telling Constable Hogg what had happened. From the time Ms Hage said that she and the deceased arrived home after having purchased food at “Java HQ” (otherwise referred to as “Java Lava”), Constable Di Benedetto’s notes read:

11. [134]

    Constable Di Benedetto was called as a witness by the Crown. Copies of relevant pages in his notebook were not in the Crown Brief. The lawyers acting for the accused requested a copy of those pages. The Crown sought to call Constable Di Benedetto in order to cross-examine him pursuant to s 38 of the Evidence Act because of what appears in the extract above. A limited objection was made on the basis that Ms Hage had not been asked if she had said what was there recorded. The evidence was clearly unfavourable to the Crown, and I considered that Ms Hage had been asked on multiple occasions what had occurred. Leave was granted to the Crown to cross-examine Constable Di Benedetto. Mr James also cross-examined him. The issue was a significant one because it went to the reliability of Ms Hage’s evidence generally, which in turn concerned how the assailants entered the unit.

12. [135]

    Constable Di Benedetto quite properly accepted that when he made his notes he was not writing a verbatim account of what was said. He said the conversation between Constable Hogg and Ms Hage was fast and “very all over the place”, that he was doing the best he could, and that he may have made an assumption or interpreted what was said to have used the word “knocked”. He is not to be criticised for the notes he made which, apart from the words “knocked on the door”, were unchallenged. That is not to say, however, that he accurately recorded Ms Hage in that regard.

13. [136]

    Ms Hage’s first statement was made later on the morning of the killing of the deceased. In that statement she gave a brief summary of what had occurred earlier that day and into the evening. She referred to the fact that at about 10:30pm the buzzer in the unit went off. She assumed it was the police because she said they always checked up on the deceased. When he returned from speaking to them she asked if everything was all right, and he said, “Yeah, don’t ask questions”.

14. [137]

    She said that she went to bed at midnight and when she woke up a little later she noticed that the deceased was not with her. She found him asleep on the couch. She woke him and got him to come to bed with her. She said they both went to sleep. She then said this:

15. [138]

    She then said that she knew at that point that she was going to die. About a minute later she moved over to Kemel who was coughing, and he said, “I’m sorry.” She then said an Arabic prayer twice with him before he stopped breathing. What thereafter occurred has been detailed earlier.

16. [139]

    When Ms Hage gave evidence on the first occasion before the Crime Commission on 12 July 2017 she said this:

17. [140]

    She said that she put her head down and she didn’t know what to do, “Like do I call the police – but they’re the police. In my head they’re the police that just killed him so I didn’t know what to do”. She said she jumped up and was telling him to do an Islamic prayer. Then he choked and died.

18. [141]

    She was asked if the men were dressed like police and she said:

19. [142]

    At the Basha enquiry held on 9 June 2020, she relevantly gave this evidence in response to questions by Mr James:

20. [143]

    At the trial she gave the following evidence in answer to questions by Mr James:

21. [144]

    In general terms, I thought Ms Hage was an honest witness. It is difficult to imagine the horror of what she experienced that night. She lay next to the deceased as he was repeatedly shot. She thought she was about to be killed too. Her distress was evident from a number of the phone calls she made immediately after the shooting, and from descriptions of how she looked by a number of police officers who first attended the scene. Ms Hage said that she suffers from severe PTSD, that she had bad memory loss from a lot of things that had happened. She said that she had subsequently been harassed, bullied and assaulted.

22. [145]

    I accept that parts of Ms Hage’s evidence concerning who she called after the shooting, who she spoke to after the shooting, her evidence about the phones she took from the unit and her evidence about “the boys being angry” had aspects of unreliability to it.

23. [146]

    However, her evidence about what happened in the unit when the assailants were present and shooting the deceased was very largely consistent in all of her accounts. I accept her evidence entirely that she did not let the assailants into the unit. I accept that she did not say that anyone knocked on the door. When Constable Di Benedetto recorded that statement he did not record what Ms Hage said. Constable Hogg recorded in her notebook,

24. [147]

    In my opinion, all of the evidence is inconsistent with the deceased having let the assailants into the unit. It is inconsistent with Ms Hage’s consistent evidence that when she and the deceased woke the men were “on the door” of the bedroom. It is inconsistent with the fact that all but one of the shell casings were found in the bedroom, and the one remaining case was found in the hallway to the bedroom and not the living room. It is inconsistent with the position the deceased was found in, and, in my opinion, the fact that some of the bullets appear to have entered the deceased’s body from the rear does not provide any support for the notion that he was shot when fleeing from the assailants in the living room after he let them in.

25. [148]

    Although it is not necessary to do so, as it is not an intermediate fact, I find beyond reasonable doubt that neither Ms Hage nor the deceased let the assailants into the unit that night.

26. [149]

    It follows from that finding that the assailants gained access to the unit without any other person’s assistance at the time of entry. The evidence makes clear that they did not enter the unit from the balconies of the unit. The CCTV footage makes clear that they entered and exited the building by the rear fire stairs door. The period of time spent within the building made it impossible for them to have entered the flat otherwise than through the front door to the unit. The evidence from the police was that entry had not been forced, for example, in the way it was when the police entered on 2 March to enforce the FPO. Further, the evidence from Mr Squire was that the lock had not been manipulated in any way to be opened by means other than a key.

27. [150]

    There is only one other possibility in relation to entry, and that is that the door was not locked at the time Ms Hage and the deceased retired for the night. Two things compel a conclusion that the door was not left unlocked. First, there was a door-closer on the door, and the lock was such that the door-closer on the door would mean that the door would shut and lock without the door needing to be closed manually by someone. The lock was such that if the door was closed and the lock engaged it could only be opened by a key from the outside.

28. [151]

    Mr Squire said that it was possible for the door to be in the closed position but for the lock not to be engaged to prevent access from the outside as a result of the handle being put in the “held back position”. In such circumstances the lever on the lock would no longer be in the horizontal position (where the door was locked) but would be in a vertical position. As Mr Squire described it:

29. [152]

    The second matter was Ms Hage’s evidence that the deceased was, as she described it, “anal” about security. That evidence is borne out, not only by the desperation demonstrated by the deceased to have a new solid core door immediately after the police broke the door down, but from the fact that the deceased had been shot at in the month before the door had been broken down by the police. His concern about security is also emphasised by the fact that he wanted a second lock put on the inside of the door, and asked the deceased to organise that on 5 March 2017 and, for that matter, in his call to Mr Gideon on 2 March to bring “one for the inside”.

30. [153]

    It will be recalled that the deceased first fell asleep on the lounge in the lounge room on the night of 9/10 March 2017. He was not, as the post-mortem toxicology showed, intoxicated by drugs or alcohol. In the light of the aforementioned matters, I find that it is inconceivable that the door lever would have been left in the vertical position by the deceased on that night, and he remained in the lounge room after Ms Hage retired to bed.

31. [154]

    Although it is not necessary to do so, as it is not an intermediate fact, I find beyond reasonable doubt that the assailants entered the unit by unlocking the front door lock with a key which they had in their possession.

32. [155]

    It is next necessary to consider how the assailants would have possession of a key which operated the front door lock of the unit door.

33. [156]

    The agreed facts say at paragraph 67:

34. [157]

    Although there was some inconsistency between the two statements of Mr Ratinon (see at [36] and [45] above), the better view is that the lock Mr Ratinon installed on 2 March on the broken door, was the Lockwood lock that Mr Bidewell had taken to the unit on the afternoon of 2 March, and was the lock Mr Ratinon removed from the broken door and installed on the new door on 3 March.

35. [158]

    Although Detective Sergeant Maree gave evidence that the lock in the red box, that was the subject of the photo annexed to Mr Bidewell’s statement (Exhibit V), was not the lock on the door at the time that the deceased was murdered, that evidence was inconsistent with the evidence of Detective Mark Scifleet who was the first police officer to be let into the unit by Ms Hage after the shooting. Detective Scifleet said in his statement:

36. [159]

    Photographs 42 and 43 in Exhibit E show where that Lockwood box was behind the door as Detective Scifleet describes. Detective Maree’s evidence was a conclusion he drew, and in doing so he failed to have regard to Detective Scifleet’s evidence which I accept. That evidence assists to resolve Mr Ratinon’s doubts about which lock he used on 3 March, and leads me to conclude that Mr Ratinon used the same lock on 3 March as he had on 2 March, being the lock provided by Mr Bidewell.

37. [160]

    The next issue to be determined is the matter of the duplication of the key.

38. [161]

    The evidence of Mr Squire was that the single key referred to by Detective Scifleet and placed in the door lock by him was not the key that had been duplicated. The key that had been duplicated was the key on the set of keys, which itself was on a key ring, that Mr Ratinon saw the accused hand to the deceased on the night of 3 March.

39. [162]

    If the lock installed on the door on the night of 3 March was the lock brought to the unit by Mr Bidewell, the only persons who had possession of the key on the key ring were the accused, Mr Norton, Mr Ratinon and the deceased from the night of 3 March. The evidence of the key’s continuity is this. After Mr Ratinon installed the lock on the damaged door on 2 March he either took one of the keys and gave it to the accused or he left both keys with the deceased. If the latter was the position, the deceased must have given the key to the accused later that night when the accused arrived with what was intended to be the new door. Certainly, by 11:25pm that night the accused claimed to have a key because his text message to Mr Norton said so ([39] above).

40. [163]

    The key was given to Mr Norton who, with Mr Habib, attended at the premises on the morning of 3 March. When they were not able to complete the job Mr Norton returned the key to the accused at about 4pm on 3 March. The accused then had possession of the key until he returned it to the deceased after Mr Ratinon had put the new door on that night.

41. [164]

    If, on the other hand, contrary to Detective Scifleet’s evidence, and contrary to what the accused told Detective Tearne on 29 June 2017 ([106] above), the lock brought by Mr Bidewell was not used at least from the night of 3 March 2017, it is important to see what Mr Ratinon said in that regard. In paragraph 16 of his first statement of 31 May 2017 he said:

42. [165]

    If the accused brought the lock and the packet was opened when Mr Ratinon took the lock from the packet to install it, then the accused was the only person who had access to the relevant key prior to it being given to the deceased.

43. [166]

    Mr Norton said that he did not make a copy of the key, he did not give the key to anybody else including Mr Habib. There was no evidence or suggestion that Mr Ratinon copied the key if he had it in his possession at any time on 2 March 2017.

44. [167]

    The evidence therefore demonstrates that the only persons who could have duplicated the key were the accused or the deceased, whichever lock was used. It was faintly suggested by Mr James that the deceased might have duplicated the key to give a key to the agent. The unchallenged evidence was, however, that the agent did not have a copy of the key to the lock installed on 3 March prior to the murder.

45. [168]

    In my opinion there is no realistic possibility that the deceased had the key duplicated. He was separated from his wife who had moved out of the unit. There was nothing in the evidence after the murder to suggest that the wife had a copy of the key to provide to Mr Elkodat for him to clear out the unit until after the police removed and replaced the lock from 11 March. I have already accepted the evidence of Mr Elkodat that he did not have a key to the unit before he obtained a key to the new lock after the murder. Ms Hage never had a key to the flat, and she said that she was only present at the flat when the deceased was present. I accept Ms Hage’s evidence that the deceased was “anal” about security. I do not accept that the deceased would have duplicated the key to provide it to any other person or for any purpose.

46. [169]

    It is next necessary to look at what the Crown has identified as an admission. This was the statement of the accused made in the surveillance device recording of 25 July 2017 where he said:

47. [170]

    The Crown submission is that, taken in the context of what had been discussed between M1 and Mr El-Hallak both at the time the accused was in the van and when he was not, that statement by the accused should lead to the conclusion that the accused was in some way involved in the deceased’s murder. Mr James submitted that this discussion was no more than people, and the accused in particular, speculating as to possibilities after the event. What was said, Mr James submitted, does not yield inferences in such a compelling fashion so that it can be said to be inference rather than conjecture. Mr James submitted that it did not amount to a confession of guilt, implicitly nor expressly, and he submitted that much of the expression in the conversation leading up to this point was vague in nature.

48. [171]

    Mr James did not submit that a finding that this statement was an admission was an intermediate fact that had to be proved beyond reasonable doubt. He did submit, however, that it was an intermediate fact, needing to be proved beyond reasonable doubt, that Mr Sleiman arranged or participated in the killing.

49. [172]

    I can see no basis upon which a finding that Mr Sleiman arranged or participated in the killing needs to be proved beyond reasonable doubt. It cannot be seen as a link in the chain, because a finding, for example, that the accused provided a key to the perpetrators is not the same as a finding that the accused provided a key to Mr Sleiman or for his purposes. What is of greater significance, although itself not an intermediate fact, is that the accused believed that Mr Sleiman was involved in the killing and believed, it would seem, that he was one of the persons who actually entered the unit on the night of 9/10 March 2017.

50. [173]

    It is necessary at this point to consider what the Crown describes as the further admission made by the accused to his brother Ali after his arrest on 8 November 2017. This was the statement of the accused:

51. [174]

    That statement indicates clearly that the accused believed that he had information of sufficient seriousness concerning Mr Sleiman that an approach by the accused’s brother to Mr Sleiman’s brother, suggesting some sort of a trade-off, was likely to be accepted. Given that Mr Sleiman was a convicted murderer, any information that the accused had about him which would have persuaded him to do a favour of the type suggested for the accused must have been serious information for such a trade-off (or threat if it be seen that way) to be successful.

52. [175]

    When taken in conjunction with the earlier conversation recorded on the surveillance device on 25 July 2017, especially that portion set out at [82] above, the accused must have believed that Mr Sleiman was involved in the killing of the deceased. The accused clearly accepted and adopted what Mr El-Hallak said immediately before he (the accused) made the statement asserted to be the admission.

53. [176]

    In that way, I do not accept the submission of Mr James that the accused (and the other two men for that matter) was simply speculating as to possibilities after the event, and that the statement of the accused identified as the admission was no more than that. The thrust of the conversation which went on for a lengthy period of time was that a problem had emerged between Mr Sleiman and the accused, perhaps as a result of what Mr Sleiman’s nephew Wissam had been saying about the accused, which caused Mr Sleiman to think that the accused was involved in the attempt on his life on 29 March 2017.

54. [177]

    The point being made by Mr El-Hallak twice in the conversation, once when the accused was not present, and once when he was, was that the accused had plenty of opportunity at various times to have killed Mr Sleiman if he had wanted to do so. Mr El-Hallak said (when the accused was not present):

55. [178]

    After the accused returns to the car, Mr El-Hallak says:

56. [179]

    Later in the conversation the accused himself said:

57. [180]

    It was in that context that Mr El-Hallak said of the accused that:

58. [181]

    The only rational inference from the discussion and the accused’s comment in particular is that he believed that Mr Sleiman was one of the assailants. Although it is not necessary to do so, because it is not an intermediate fact, I find beyond reasonable doubt that the accused believed Mr Sleiman was involved in the killing of the deceased.

59. [182]

    Further, when Mr El-Hallek said that the accused “would’ve set it up” if he had intended that Mr Sleiman was to be shot, the accused responded, “I could’ve done it like that”. A strong inference is available that the accused was accepting that he had some involvement in setting up the entry of the assailants into the deceased’s unit, and in that sense it is an admission by him of that involvement.

60. [183]

    The contact both by telephone and in person between the accused and Mr Sleiman in the period from 3 March up to and after the murder strengthens the likelihood that, in the accused’s mind, Mr Sleiman was involved in the deceased’s murder. So too does the fact that the accused did not want Mr Sleiman contacting him at all after the murder.

61. [184]

    The fact that the accused was claiming to be owed $25,000 by Mr Sleiman a short time after the murder of the deceased is another factor to be taken into account. I accept that the evidence discloses that the accused and Mr Sleiman appeared to have other business or financial arrangements. However, where the reason for the accused being owed $25,000 by Mr Sleiman is not, and is not submitted to be except as a motive, an intermediate fact, it is an available inference and more than conjecture, that the debt arose from the accused’s involvement in the deceased’s killing.

62. [185]

    Before leaving evidence about Mr Sleiman, I should say something about Mr James’ objection concerning the relevance of Mr Sleiman’s shooting, and evidence of the connection between the accused and Mr Sleiman. Mr Sleiman’s shooting is not, on the evidence, directly relevant to the murder of the deceased. However, as can be seen from the recorded conversation of 25 July 2017, his shooting is relevant for understanding the accused’s statement that I have found to be an admission. That statement, as I have found, makes clear that the accused believed that Mr Sleiman was involved in the deceased’s murder. That belief makes relevant the evidence of the contact between the accused and Mr Sleiman from 3 March 2017.

63. [186]

    The Crown sought to characterise a number of statements made by the accused to various persons as lies amounting to a consciousness of guilt. The lies were said to have been demonstrated by the failure of the accused to mention specific matters or to give a full account of his involvement in relation to the change of door at the deceased’s premises.

64. [187]

    A lie is to say something untrue, knowing at the time of making the statement that it is untrue. I may only take a lie into account as evidence of the accused’s guilt if I find two further things. When I say I can take it into account as evidence of the accused’s guilt, the lie cannot prove the accused’s guilt on its own. Rather, it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt.

65. [188]

    The other two things are these. First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence that the Crown alleges that the accused committed. It must relate to some significant circumstance or event connected with the alleged offence. Secondly, I must find that the reason the accused told the lie is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial.

66. [189]

    If the lie is not used as evidence of a consciousness of guilt, I can take the lie into account in assessing the accused’s credibility. In other words, when I consider what he told the police in his ERISP and what he otherwise told Detective Tearne, I can have regard to any lie that I find the accused has told.

67. [190]

    I cannot be satisfied that the failure of the accused to disclose the totality of his involvement in the change of door and lock amounts to a lie. The omission to mention that at one stage the accused had possession of the key to the lock is not such that I can conclude it is a lie. Certainly, the accused has been less than frank in what he has mentioned to the police both in the ERISP and to Detective Tearne. When the accused knew that the assailants obtained entry to the unit other than by a forced entry (and that is clear from an early part of the recorded conversation on 25 July 2017) a reasonable person in the accused’s position would know that he was being less than frank in not disclosing to the police that he had possession of the key at least from late in the evening on 2 March until he gave it to Mr Norton the following morning, and then again from the time that Mr Norton returned it to him and when the accused gave it to the deceased on the night of 3 March 2017. That is reinforced by his statement to Detective Tearne on 6 June 2017 that he didn’t touch the lock.

68. [191]

    I do not think that much can be made of what the accused said to persons who were not police in the matter. He was under no obligation to tell such people the full story of his involvement. What was said was generally a brief summary by him of why the police were investigating him. I have not taken those matters into account when assessing his credibility.

69. [192]

    Mr James submitted that in none of the telephone calls or recordings made by surveillance devices does the accused make any admission of involvement in the crime. In that regard, I have already dealt with Mr James’ submissions regarding the admission in the conversation of 25 July 2017. Mr James accepted that the accused believed that he was under observation from the time of the murder. That is borne out by complaints that the accused has made to various associates as well as to Detective Tearne. It is further borne out by the accused’s reference in the recorded conversation on 25 July 2017 of having scoured his vehicle to see if there was a “tracker” on it. In those circumstances, it is scarcely surprising that what has been said by him at least in telephone conversations does not contain any admission of wrongdoing. It is also of some significance that the statement by him constituting an admission in the conversation of 25 July 2017 was made when the accused thought that he was not under surveillance in the van.

70. [193]

    Although I consider that the accused was less than frank in not mentioning in particular that he had a key to the unit at two critical times, I do not think that very much turns on that lack of frankness. I have already found that the accused had a key at relevant times. The fact that he was not prepared to say so to the police does not make it more likely that he is guilty of the offence. He otherwise tells the truth to the police about the change of the door and his involvement. I cannot use his lack of frankness to draw any inference about what other involvement he may have had.

71. [194]

    I am not convinced beyond reasonable doubt that the accused provided the Building Access Information to the assailants. Certainly, the accused was informed of the existence of entry through the back fire stairs, although he was told at the same time that it would be necessary to make contact with the people who lived in unit 1 so that that access could actually be made available.

72. [195]

    It is likely that at least some of the assailants were the same people who were actually involved in the killing as those who attended on 8 March. So much is clear from the getaway car that was used and the fact that the handles to the poolside steel grille door were found in the burnt out getaway car on 10 March 2017. Certainly, the assailants who attended on 8 March did not make use of the Building Access Information. If the accused had told them that they could enter through “the back fire stairs”, it is difficult to understand why they would have attempted to break in from the pool area, and into the foyer where there were no apparent fire stairs.

73. [196]

    That view is strengthened by the fact that the assailants entered the complex on 8 March down the southern path which clearly extended to the back of the building. Further, when the assailants were stymied in gaining access to a higher floor than the ground floor, as they were leaving along the southern path two of them walked briefly down that path towards the river. The CCTV footage makes clear, from a timing point of view, that they could not have walked as far as the back of the building along that path before turning back. The time they spent in and around the entrance and foyer area of the back building suggests that there was no real sense of urgency about their mission that night. The fact that they did not traverse the southern path to the back of the building when they could not otherwise access it suggests that, at that time, they did not know of the back fire stairs.

74. [197]

    I accept that it is possible that the accused provided the Building Access Information after the failed entry attempt came to his attention, but that would be mere conjecture. Nor do I consider that the Building Access Information was sufficiently unique to the accused that it must be inferred that the entry by the assailants on 10 March derived from the imparting of that knowledge from the accused to the assailants.

75. [198]

    Unlike the position of the key, a copy of which could only have been procured from the accused, the Building Access Information might have come from a number of other means including other persons who lived at the premises or from observation by or on behalf of the assailants up to the time of 10 March 2017.

76. [199]

    The position is otherwise in respect of the provision of the key. I have found beyond reasonable doubt that the assailants entered the unit on 10 March by using a key. As I have indicated earlier, the accused was the only person who could have provided a key for duplication, or a duplicate key. In those circumstances, the frequent contact with Mr Sleiman on and after 3 March when the accused had a key to the unit, and what was said by the accused to M1 and Mr El-Hallak on 25 July compels a conclusion that the accused was involved in the killing.

77. [200]

    Another matter of some significance is the occasion on 8 March when the accused went to the property, after ringing the deceased to see if he could do so. He entered via the southern path and in through the side gate to the pool area. Almost immediately after entering the pool area he looked towards the steel grille door where the handles had been removed, and continued to do so as he walked towards the glass door. To do so he needed to step over a tree which had fallen into the yard but he did not look at that tree at all. Although the Crown suggested that he again looked at that door after he entered through the glass door, the movement is too fleeting to reach a firm view about that matter.

78. [201]

    The location of the steel grille door and the fact that its external fitting to the lock had been removed was such that a person who was not cognisant that something had happened to the door would be unlikely to stare at it in the way that the accused did. I have viewed the CCTV footage a number of times, in addition to having seen it played in court. There is no doubt that his gaze is focused on that door. Photographs 18, 19 and 20 in Exhibit E demonstrate how insignificant the damage to that door was unless one was focused upon it and knew that there was something to see. The inference that is available from his actions is that he was aware of what had taken place in relation to that door on the previous night. The inference is strengthened because common experience suggests that a person confronted by a very large branch of a tree which had fallen across one’s path is likely at least to glance at the branch and/or the tree.

79. [202]

    If the accused was aware that the handles to that door had been removed earlier that day, there is a powerful inference that he was involved directly or indirectly with the assailants, and knew that their intention was to kill the deceased. That he knew, in any event, that their intention was to kill the deceased is made clear from the admission made to M1 and Mr El-Hallak about how he could have set it up, because he knew, in the first instance, that the assailants were to shoot the deceased.

80. [203]

    Taking into account that the assailants entered the unit using a key, the accused’s opportunity and capacity to have the key duplicated, the admission made in the 25 July conversation, the powerful inference of his knowledge of what took place on 8 March, his contacts with Mr Sleiman at the relevant times, and his belief that Mr Sleiman was involved in the deceased’s killing, I am satisfied beyond reasonable doubt that the accused provided assistance to the assailants by supplying a key or duplicate key to enable access to the deceased’s unit to kill the deceased by shooting him.

81. [204]

    As I noted earlier, Mr James submitted that the existence of a motive was an intermediate fact which necessitated a finding of a motive beyond reasonable doubt. The Crown submitted that it was only a circumstance to consider along with the other circumstances.

82. [205]

    Motive is not, of course, an element of the present offence. Often, however, in circumstantial cases a jury will need to consider the three matters of opportunity, capacity (or means) and motive: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 579; Plomp at 242; Burrell at [86]; and see the discussion of motive in Baden-Clay at [67]-[71]. I do not understand the cases to elevate the matter of motive to that of an intermediate fact as a matter of general principle. There may be cases, such as the present, where, for example, opportunity and means, have much greater significance.

83. [206]

    On one view the present case is somewhat unusual in that the accused’s involvement arose from circumstances presented to him, entirely the making of others, the police, with whom he was not associated. That is not to say, however, that the evidence discloses no motive for his involvement. There are three possibilities. The first is the prior, apparently retaliatory killings, where the last victim was a friend of the accused, and the deceased was a suspect in that killing. The second motive was provided by the accused himself in the recorded conversation of 25 July 2017 where he referred to the deceased’s crew who had “ripped him” $265,000, and the accused, having told Mr Sleiman of the matter, was prepared to turn against “them”. That conversation took place against the background of whether the accused was likely to have been involved in the shooting of Mr Sleiman after what was arranged about the deceased’s murder.

84. [207]

    A third possible motive is a payment by Mr Sleiman to the accused of $25,000, in return for his involvement, which would have helped the accused’s financial position in relation to his upcoming wedding and the renovations he was having done on a house. Whilst I consider that this may have provided a motive for the accused’s involvement, I do not overlook the evidence suggesting that the accused and Mr Sleiman seemed to have other financial interactions.

85. [208]

    It is not necessary to fix upon a particular motive because a motive is not an intermediate fact. If there had been no possible motive, I accept that its absence would have weakened, although not destroyed, the circumstantial case which is, for the reasons I have given, otherwise very strong. I take into account that any of these three possible motives means that the accused’s involvement is not without a possible rational explanation.

86. [209]

    In my opinion, having regard to all of the evidence, there is no reasonable explanation consistent with the innocence of the accused for the assailants to have been assisted by the provision of a key to the deceased’s unit so that they could kill him.

87. [210]

    Accordingly, I find the accused Ahmed Jaghbir guilty of procuring, aiding and counselling unknown persons to murder Kemel Barakat.