Alzuain v The King; Alzuain v The King; Alzuain v The King; Jalleh v The King; Montgomery v The King; Pryde v The King; Sianis v The King
[2025] SASCA 67
•18 June 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ALZUAIN v THE KING; ALZUAIN v THE KING; ALZUAIN v THE KING; JALLEH v THE KING; MONTGOMERY v THE KING; PRYDE v THE KING; SIANIS v THE KING
[2025] SASCA 67
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Bleby)
18 June 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF IDENTITY OF ACCUSED
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Appeal against conviction.
On 10 October 2023, following a six-month trial, a jury convicted each of the appellants of the murder of Mr Jason De Ieso on 21 November 2012. The jury were unable to reach a verdict concerning an eighth accused, Seywan Moradi.
On Wednesday 21 November 2012, nine men walked quickly toward the workshop ‘Unique Custom Paint and Panel’ at Langford Street, Pooraka. They were each wearing hooded tops, and some wore gloves. Five were carrying firearms. Some appeared to be unarmed. Their movements were captured on CCTV footage.
The prosecution case was that each of the seven appellants and one further accused, Moradi, was a member of this group of nine, as was a ninth man, Dwayne Bradley, who had died by the time of trial. The prosecution case was that each man was either a member, a prospect or associated with the Hells Angels Outlaw Motorcycle Club (‘Hells Angels’).
The CCTV footage showed that after the men had arrived at Langford Street in two small white cars, they gathered together and then walked down a driveway toward the workshop. By the time they reached the entry to the workshop, four of the men had formed a front line. Two or three in this lead group opened fire in the direction of men inside the building, using a sawn-off shotgun and one or two handguns. The CCTV footage showed that the men inside the workshop were running for their lives.
The balance of the group of nine, called ‘the stragglers’ at trial, were walking behind the lead group. One of the stragglers levelled his firearm and continued to approach whilst others were firing. The shooting was over in a matter of seconds.
Mr De Ieso was struck in the head and killed by pellets fired from the shotgun held by a man in the lead group. He was the proprietor of the business conducted in the workshop. Almost immediately after the deceased was shot, the stragglers behind the lead group turned and ran. They were quickly followed by those in the lead. All nine quickly got back into the two white cars and left.
The deceased was not involved in organised crime. However, he knew a man called Charles Bonnici, the Sergeant-at-Arms of the Finks Outlaw Motorcycle Club (‘Finks’). On the prosecution case, the target of the group of nine was Bonnici. He had been to visit the deceased earlier that day, but he had left after he heard about an altercation at his business, a tattoo parlour called the ‘Lords of Ink’.
The shooting occurred amidst a period of increasing violence between the Hells Angels and the Finks, including a firebombing of the Alzuain family home the previous night. The enmity between the Hells Angels and the Finks had been ongoing for around 18 months. The firebombing gave rise to the perceived ‘need’ for the Hells Angels to ‘send a message’ to the Finks.
The prosecution case was that the group of nine went to Langford Street pursuant to a joint enterprise to kill or cause serious bodily harm to Bonnici in revenge for his supposed involvement in the firebombing. The prosecution case was that, in the alternative, each was guilty of murder by extended joint criminal enterprise.
In late 2022, prior to the trial, there was a lengthy pre-trial voir dire hearing. The judge on the voir dire (‘primary judge’) ruled on the admissibility and use of discreditable conduct evidence, the admissibility of the evidence of a police officer regarding outlaw motorcycle gangs, the admissibility and use of certain post-offence conduct. The primary judge rejected an application for a stay or alternatively for the exclusion of evidence relating to an important prosecution witness, VI.
The trial judge heard and determined numerous defence applications which were addressed by a published ruling and various ex tempore rulings. The trial judge gave the jury various directions at the start of the trial, as well as during the course of it. These were in addition to his formal summing up, which commenced on 28 September 2023. This was accompanied by various aides-memoire.
The jury convicted each of the appellants. They were unable to reach a verdict in respect of Moradi.
The appellants raised between them, in substance, 30 issues for determination on the appeal. Many grounds were common to various of the appellants. The grounds can be broadly grouped into the following categories:
(a) The application for a stay and the admission of the evidence of the witness VI;
(b) The directions as to permissible reasoning and separate trials;
(c) The outlaw motorcycle gang-related evidence;
(d) The directions regarding identity and the use of CCTV footage;
(e) The directions regarding the available pathways to guilt;
(f) The prosecution opening and the admission of particular items of evidence;
(g) The defence cases, and whether these were adequately put in the summing up;
(h) Whether the verdicts are unreasonable or unsupported by the evidence.
The appeal was argued by reference to the identified issues raised by various combinations of grounds of appeal. The Court has adopted the same approach in its reasons for judgment. Some of the issues were not pressed at the hearing. Certain others have been unnecessary to decide.
Held (by the Court), granting permission to appeal, allowing the appeals and remitting the matters for retrial:
Issue 1: The primary judge did not err in refusing to exclude the evidence of the police officer as to the characteristics and culture of Outlaw Motorcycle Gangs and of the Hells Angels Motorcycle Club. The appellants have not shown that there was any part of the officer’s evidence that was both challenged and impermissibly bolstered by his dual role as an expert and an investigator. The primary judge did not fail to apply the test in s 34P of the Evidence Act 1929 (SA) (‘Evidence Act’) when considering whether to exclude the officer’s expert evidence.
Issue 2: The primary judge did not err in permitting the prosecution to adduce discreditable conduct evidence relating to previous events of violence between the Hells Angels and the Finks. The evidence was plainly of discreditable conduct evidence within the meaning of s 34P of the Evidence Act. However, the probative value of the evidence substantially outweighed its prejudicial effect.
Issue 4: The primary judge did not err in failing to stay the prosecution or exclude the evidence of the witness VI or stay the trial in the exercise of the public police or fairness discretions.
Issue 6 and 7: It would have been preferable for the trial judge to have given a warning about the limitations inherent in images derived from CCTV footage from which comparisons with features of various appellants were sought to be drawn. However, having regard to the context in which the issues unfolded during the trial, the trial judge’s directions about the limitations in the comparison evidence were adequate. The trial judge did not implicitly invite the jury to identify positively any of the appellants from the CCTV footage. The prejudicial nature of comparison evidence led with regard to the appellant Musa was able to be addressed by a direction complying with s 34R of the Evidence Act. It is not necessary to decide whether the trial judge gave an adequate direction in this regard.
Issue 9: The trial judge did not err in directing the jury that they were permitted to use text messages, to which they were not party, in proof of their participation in the joint criminal enterprise to kill or cause serious harm to Bonnici.
Issue 10: The trial judge’s directions on joint enterprise were premised on the erroneous legal proposition that the person killed need not have been the target of the joint criminal enterprise. Alternatively, the directions were productive of a substantial miscarriage of justice because the jury were not directed to consider the possibility consistent with innocence that the participants, other than the assailant, had not assented to an enterprise in which, and had not contemplated, that a person other than Bonnici would be killed.
Issue 11: Contemplation of the commission of an incidental offence requires more than contemplation that another participant may intend to commit it. It requires contemplation of the commission of the offence which, necessarily, entails contemplation of conduct of a kind by which the offence might be committed. For those offences, like murder, which include, as an element, that the offending conduct achieve a certain result, the participant must also contemplate that result. The trial judge expressly so directed.
All that need be agreed by the participants in a criminal enterprise is conduct which would constitute a crime. It is an agreement to engage in that conduct which must be proved. Once that is proved, the only further element which must be proved to establish complicity in a crime, which was in fact perpetrated, is foresight on the part of the participant that that conduct might result in of the commission of the other crime. The trial judge’s directions were not deficient in this regard.
Issue 13: In order to found a conviction for an offence which was committed but did not fall within the scope of the joint criminal enterprise, it is not necessary to prove that the accused assented to the continuation of the foundational enterprise, by engaging in positive conduct signifying that assent, after contemplating the commission of the incidental crime. An efficacious withdrawal from an extant joint criminal enterprise demands, broadly, the participant seeking to absolve himself of criminal liability for the commission of the agreed upon offence to take reasonable steps to countermand the continuation of the enterprise, and, depending upon the stage at which the enterprise is, potentially to take steps to prevent the commission of the crime, whether by alerting the appropriate authorities or otherwise.
Issue 15: The trial judge did not cause a miscarriage of justice by refusing to permit the accused to adduce evidence of the employment at the DPP of VI’s sister and that person’s conduct in accessing the prosecution file.
Issue 21: The trial judge did not err in failing to direct the jury to make a finding as to whether all of the participants to the joint enterprise agreed that loaded firearms would be presented and pointed at someone, before considering whether any one of them contemplated that one of the other participants might shoot someone with murderous intent.
Issue 23: It could not be said that the verdicts are unreasonable and cannot be supported having regard to the evidence. It was open to the appellants to emphasise to the jury various inconsistencies and frailties in the evidence as creating, individually or cumulatively, a reasonable doubt as to the presence of one or other of them at the shooting. However, the arguments that these matters, individually or collectively, warranted a conclusion that the jury must have held a reasonable doubt about the appellants’ presence at 501A, their participation in the convoy or their consequent presence at Langford Street, cannot be sustained. They fail to consider these items of evidence within the full context of all of the evidence. Having reviewed all the evidence and considered the various complaints in that context, the Court is not persuaded that the jury must have had a reasonable doubt about the guilt of any of the appellants raising this ground of appeal.
Issue 25: There was no miscarriage of justice by reason of the appellants Montgomery and Husain being tried jointly with the other defendants.
Issue 28: The trial judge did not err in admitting evidence of the location by police of a firearm holster in a vehicle in which Husain was a passenger at the time. The evidence was admissible against Husain.
Issue 29: The trial judge did not err erred in admitting evidence of Jalleh’s disposal of a Dymocks bag and its contents in a local neighbourhood waste bin on the night of the murder.
Issue 30: The trial judge did not err in admitting a police photo taken of Jalleh on an occasion when he had been arrested prior to the date of the murder. The photograph was taken 22 minutes before Jalleh was charged in respect of that incident. Having found that this was not a wilful or deliberate disregard of police obligations, that the officer was not experienced in the procedures, had endeavoured to comply with her obligations throughout the morning and had made an honest mistake, he concluded that this was not a case warranting curial disapproval in the form of excluding the evidence. The trial judge noted that the photographs were probative, reliable and important in the Crown case. It was open to the trial judge to so find.
Criminal Assets Confiscation Act 2005 (SA) s 7; Crimes (Confiscation of Profits) Act 1986 (SA); Criminal Law Consolidation Act 1935 (SA) ss 11, 241, 267; Criminal Law (Forensic Procedures) Act 2007 (SA); Criminal Procedure Act 1921 (SA) ss 157(1)(a)(ii), 158, 158(1)(a), 158(1)(b), 158(1)(c), 158(2); Criminal Procedure Act 2009 (Vic) ss 65, 137, 295; Director of Public Prosecutions Act 1991 (SA) ss 10A(1) and 10A(2); Evidence Act 1995 (Cth) s 138; Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34P(2)(b), 34P(3), 34R; Evidence Act 2008 (Vic) ss 65, 137; Juries Act 1927 (SA) s 7(1); Legislation Interpretation Act 2021 (SA) s 36; Summary Offences Act 1953 (SA) ss 74C, 74D, 74D(1)(a), 74E, 81, 81(4), 81(4a), referred to.
AB (A Pseudonym) v CD (A Pseudonym); EF (A Pseudonym) v CF (A Pseudonym) (2018) 93 ALJR 59; AK v Western Australia (2008) 232 CLR 438; Alqudsi v The Queen (2016) 258 CLR 203; Athans v The Queen (No 2) (2022) 300 A Crim R 389; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Barca v The Queen (1975) 133 CLR 82; Barton v The Queen (1980) 147 CLR 75; Beresford v Royal Insurance [1938] AC 586; Brawn v The King [2025] HCA 20; Brennan v The King (1936) 55 CLR 253; Bromley v R (1986) 161 CLR 315; Brown v The Queen (1986) 160 CLR 171; Bunning v Cross (1978) 141 CLR 54; Cannon v Tahche (2002) 5 VR 317; Castle v The Queen (2016) 259 CLR 449; Chamberlain v The Queen [No 2] (1984) 153 CLR 521; Cheng v The Queen (2000) 203 CLR 248; Clayton v The Queen (2006) 81 ALJR 439; Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147; Cleland v The Queen (1982) 151 CLR 1; Dearman v Dearman (1908) 1 CLR 549; Dent v The Queen [2021] SASCFC 4; Dickson v R (2017) 94 NSWLR 476; Dietrich v The Queen (1992) 177 CLR 292; Director of Public Prosecutions (Cth) v Bayly (1994) 63 SASR 97; Director of Public Prosecutions v Moore (2003) 6 VR 430; Domican v The Queen (1992) 173 CLR 555; DPP (Cth) v Bayly (No 3) (1996) 89 A Crim R 542; DPP (Vic) v Paulino (2017) 54 VR 109; DPP v (NSW) v Sullivan [2022] NSWCCA 183; Driscoll v The Queen (1977) 137 CLR 517; Dupas v The Queen (2010) 241 CLR 237; Edwards v State Trustees Ltd (2016) 54 VR 1; Edwards v The Queen (2021) 273 CLR 585; Emery v The Queen [2021] SASCA 62; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33; Festa v The Queen (2001) 208 CLR 593; Filippou v The Queen (2015) 256 CLR 47; Fletcher (A Pseudonym) v Knight (A Pseudonym) (No 2) [2025] ACTCA 8; Fox v Percy (2003) 214 CLR 118; Fortson Pty Ltd v Commonwealth Bank of Australia & Anor (2008) 100 SASR 162; Foster v R (1993) 67 ALJR 550; Gillard v The Queen (2003) 219 CLR 1; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Goldsmith v Sandilands (2002) 76 ALJR 1024; Hayes v The Queen (1973) 47 ALJR 603; HCF v The Queen (2023) 97 ALJR 978; Helton v Allen (1940) 63 CLR 691; Hill v Chief Constable of West Yorkshire (1987) 1 All ER 1173; Hoang v The Queen (2022) 276 CLR 252; Hocking v Bell (1945) 71 CLR 430; Hofer v The Queen (2021) 274 CLR 351; House v The King (1936) 55 CLR 499; Huxley v The Queen (2023) 98 ALJR 62; Jago v District Court (NSW) (1989) 168 CLR 23; Jones v The Queen (1997) 191 CLR 439; Kadir v The Queen (2020) 267 CLR 109; Kalbasi v Western Australia (2018) 264 CLR 62; Katsuno v The Queen (1999) 199 CLR 40; Keeley v Mr Justice Brooking (1979) 143 CLR 162; Kingswell v The Queen (1985) 159 CLR 264; Koschier v R [2024] NSWCCA 24; Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125; Lee v The Queen (2014) 253 CLR 455; Levigne v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546; Lewis v Lewis (2021) 105 NSWLR 487; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487 ; MacKenzie v The Queen (1996) 190 CLR 348; Maher v The Queen (1987) 163 CLR 221; Mann v R [2023] NSWCCA 256; Matthews v The Queen (2020) 135 SASR 281; McAuliffe v The Queen (1995) 183 CLR 108; McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; MFA v The Queen (2002) 213 CLR 606; Middlin-Hannah v The Queen (2020) 137 SASR 366; Miller v The Queen (2016) 259 CLR 380; Mitchell v The King (2023) 276 CLR 299; Moore (A Pseudonym) v R (2024) 98 ALJR 1119; Morris v The Queen (1987) 163 CLR 454; Moti v The Queen (2011) 245 CLR 456; Mouvement Laique Quebecois v Saguenay (City) [2015] 2 SCR 3; Mullen v DPP (SA) (2020) 136 SASR 274; Mullins v Lillyman (2007) 70 NSWLR 26; Mundy v The King [2023] SASCA 59; Myers v The Queen [2015] UKPC 40; Nicholls v The Queen (2005) 219 CLR 196; Northern Territory v Mengel (1995) 185 CLR 307; Osland v The Queen (1998) 197 CLR 316; Peacock v The King (1911) 13 CLR 619; Perara-Cathcart v The Queen (2017) 260 CLR 595; Pham v Gall (2020) 102 NSWLR 269; Pitkin v The Queen (1995) 69 ALJR 612; Plomp v The Queen (1963) 110 CLR 234; Police (SA) v Dunstall (2014) 120 SASR 88; Police (SA) v Hall (2006) 95 SASR 482; Pollard v The Queen (1992) 176 CLR 177; Pollitt v R (1992) 174 CLR 558; Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202; Popovic v The Queen (2016) NSWCCA 202; R v Adamson [2018] SASCFC 114; R v Alzuain & Ors [2022] SASC 161; R v Alzuain & Ors (No 2) [2022] SASC 162; R v Alzuain & Ors (No 4) [2023] SASC 58; R v Alzuain & Ors (No 5) [2023] SASC 137; R v Andrews (No 2) [2005] SASC 301; R v B, FG (2013) 115 SASR 499; R v B, FG; R v S, BD (2012) 114 SASR 170; R v Baden-Clay (2016) 258 CLR 308; R v Bolte [2010] SASC 112; R v Booth (1982) 2 NSWLR 847; R v Chase [2018] NSWCCA 71; R v Christie [1914] AC 545; R v Cluse [2014] SASCFC 97; R v Cotter [2003] NSWCCA 273; R v Darby (1982) 148 CLR 668; R v Demirok [1976] VR 244; R v Edelsten (1990) 21 NSWLR 542; R v Falzon (No 2) [1990] 2 Qd R 436; R v Forrest [2016] SASCFC 76; R v Geoffrey (A Pseudonym) [2024] SASCA 40; R v Giles [2016] BCJ No 652; R v Glennon (1992) 173 CLR 592; R v Golja [2017] SASCFC 61; R v Hillier (2007) 228 CLR 618; R v Horseferry Road Magistrates Court; Ex parte Bennett [1994] 1 AC 42; R v Ireland (1970) 126 CLR 321; R v Jones (2006) 161 A Crim R 511; R v Kamleh [2003] SASC 269; R v Lee (1950) 82 CLR 133; R v Lobban (2000) 77 SASR 24; R v Marshall [2023] SASCA 105; R v McLean; Ex parte Attorney-General [1991] 1 Qd R 231; R v Middis (Unreported, New South Wales Supreme Court, Hunt J, 27 March 1991); R v Mohi (2000) 78 SASR 55; R v Murch; R v Logan (2014) 119 SASR 427; R v Musolino (2003) 86 SASR 37; R v Oliver (1984) 57 ALR 543; R v Peirce [1992] 1 VR 273; R v Pipe (1966) 51 Cr App R 17; R v Riley [2020] NSWCCA 283; R v Robinson (1921) 70 DLR 755; R v Rockford (2015) 122 SASR 391; R v Shueard (1972) 4 SASR 36; R v Sione [2024] NSWSC 378; R v Sparre (1942) 66 CLR 149; R v Swaffield (1998) 192 CLR 159; R v Tang [2015] ONCA 470; R v Trabolsi (2018) 131 SASR 297; R v Vaughan (No 2) (2009) 105 SASR 532; R v Von Einem (No 2) (1991) 52 A Crim R 402; R v Webb & Hay (1992) 59 SASR 563; R v Weetra [2004] SASC 337; R v Williams [2016] SASC 67; R v ZT (2025) 99 ALJR 676; RC v The Salvation Army (Western Australia) Property Trust (2024) 98 ALJR 1453; Raspor v The Quee (1958) 99 CLR 346; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393; Ridgeway v The Queen (1995) 184 CLR 19; Ridley v The King [2024] VSCA 308; Rogerson v R; McNamara v R [2021] NSWCCA 160; Rona v District Court (SA) (1995) 63 SASR 223; Rozenes v Beljajev [1995] 1 VR 533; Simic v The Queen (1980) 144 CLR 319; Sindoni v The Queen [2021] SASCA 138; SKA v The Queen (2011) 243 CLR 400; State Trustees Ltd v Edwards [2014] VSC 392; Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; Subramaniam v R (2004) 79 ALJR 116; Taylor v The Queen [2020] NSWCCA 335; The Crown v Clarke (1927) 40 CLR 227; The Queen v Bauer (2018) 266 CLR 56; Thomas v The King [2024] SASCA 51; Tierney v R [2016] NSWCCA 144; Tilley v The King (2023) 143 SASR 328; Truong v The Queen (2004) 223 CLR 122; Van der Meer v The Queen (1988) 62 ALJR 656; Victoria International Container Terminal v Lunt (2021) 271 CLR 132; Walton v Gardiner (1993) 177 CLR 378; Warren v Coombes (1979) 142 CLR 531; Weiss v The Queen (2005) 224 CLR 300; White Burgess Langille Inman v Abbot and Haliburton Co [2015] 2 SCR 182; White v Ridley (1978) 140 CLR 342; Whitehorn v The Queen (1983) 152 CLR 657; Willmot v Queensland (2024) 98 ALJR 1407; Williams v Spautz (1992) 174 CLR 509; Williams v The Queen (1986) 161 CLR 278; Wilson v City of Onkaparinga [2024] SASC 139; Wilde v The Queen (1988) 164 CLR 365; Woodland v Swimming Teachers Association [2014] AC 537; Young v The King [2024] SASCA 47; Zhou v The Queen [2021] NSWCCA 278, considered.
ALZUAIN v THE KING; ALZUAIN v THE KING; ALZUAIN v THE KING; JALLEH v THE KING; MONTGOMERY v THE KING; PRYDE v THE KING; SIANIS v THE KING
[2025] SASCA 67Court of Appeal – Criminal: Kourakis CJ, Livesey P and Bleby JA
THE COURT: On 10 October 2023, following a six-month trial, a jury convicted each of Husain Alzuain, Mohamed Alzuain, Musa Alzuain, Daniel Jalleh, Ross Montgomery, Kyle Pryde and Nicholas Sianis (together, ‘the appellants’) of the murder of Mr Jason De Ieso on 21 November 2012.[1]
[1] The appellants will be referred to by their surnames, save for the Alzuain brothers, who will be referred by their first names with no disrespect intended.
The jury were unable to reach a verdict concerning an eighth accused, Seywan Moradi.
The appellants have appealed their convictions on the various grounds set out below. As can be seen, a number of the grounds are common to all appellants, but these were generally advanced by one appellant, with other appellants adopting or supplementing those submissions.[2]
[2] These arrangements were made during a series of callover hearings in the Court of Appeal which commenced in late 2023, and the allocation of issues by the parties which enabled this appeal to be heard over five days.
Apart from maintaining that their verdicts are unreasonable or unsupported by the evidence within the meaning of s 158(1)(a), each appellant asserts a combination of legal errors (s 158(1)(b)) or errors comprising a miscarriage of justice (s 158(1)(c) of the Criminal Procedure Act 1921 (SA) (‘CPA’)). Insofar as these grounds do not involve ‘a question of law alone’, permission to appeal is required pursuant to s 157(1)(a)(ii) of the CPA.
For the following reasons, permission to appeal should be granted and the appeals allowed. Nonetheless, as the verdicts are neither unreasonable nor unsupported, new trials should be ordered.
Overview of the factual background
At around 1:30pm on Wednesday, 21 November 2021, nine men walked quickly toward the workshop ‘Unique Custom Paint and Panel’ at Langford Street, Pooraka. They were each wearing hooded tops, and some wore gloves. Five were carrying firearms. The others appeared to be unarmed. Their movements were captured on CCTV footage.
The prosecution case was that each of the seven appellants and Moradi were a member of this group of nine, as was a ninth man, Dwayne Bradley, who had died by the time of trial. The prosecution case was that each was either a member, a prospect or otherwise associated with the Hells Angels Outlaw Motorcycle Club (‘Hells Angels’).
The CCTV footage showed that after the men had arrived at Langford Street in two small white cars, they gathered together and then walked down a driveway toward the workshop. By the time they reached the entry to the workshop, four of the men had formed a front line of sorts. Two or three in this lead group opened fire in the direction of the men inside the building, using a sawn-off shotgun and one or two handguns. The CCTV footage showed that the men inside the workshop ran for their lives.
The balance of the group of nine, called ‘the stragglers’ at trial, were walking behind the lead group. One of the stragglers levelled his firearm and continued to approach whilst others were firing. The shooting was over in a matter of seconds.
Mr De Ieso was struck in the head and killed by pellets fired from the shotgun held by a man in the lead group. Mr De Ieso was the proprietor of the business conducted in the workshop. Almost immediately after the deceased was shot, the stragglers behind the lead group turned and ran. They were quickly followed by those in the lead group. All nine quickly got back into the two white cars and left.
The deceased was not involved in organised crime. However, he knew a man called Charles Bonnici, the Sergeant-at-Arms of the Finks Outlaw Motorcycle Club (‘Finks’). On the prosecution case, the target of the group of nine was Bonnici. He had been to visit the deceased at the workshop earlier that day. Bonnici left after he heard about an altercation at his business, a tattoo parlour called the ‘Lords of Ink’.
The shooting occurred amidst a period of violence between the Hells Angels and the Finks, including the firebombing of the Alzuain family home the previous night. The enmity between the Hells Angels and the Finks had been increasing over the preceding 18 months. The firebombing gave rise to what the prosecution alleged was the perceived ‘need’ for the Hells Angels to send a message to the Finks.
The prosecution case was that the group of nine went to Langford Street pursuant to a joint enterprise to kill or cause serious bodily harm to Bonnici in revenge for his supposed involvement in the firebombing. The prosecution case was that, in the alternative, each was guilty of murder by extended joint criminal enterprise.
Over nearly eight weeks in late 2022, there was a lengthy pre-trial voir dire before Lovell J (‘primary judge’). His Honour ruled on the admissibility and use of discreditable conduct evidence, the admissibility of the evidence of Detective Senior Sergeant Lienert (‘Lienert’) regarding Outlaw Motorcycle Gangs (‘OMCGs’), and the admissibility and use of certain post-offence conduct. The primary judge rejected an application for a stay or alternatively for the exclusion of evidence relating to a key prosecution witness, (‘VI’).[3]
[3] R v Alzuain & Ors (No 4) [2023] SASC 58 (Lovell J).
After the trial commenced in 2023 before Martin AJ (‘trial judge’), numerous defence applications were addressed by a published ruling,[4] together with various ex tempore rulings. The trial judge gave the jury various directions at the start of the trial, as well as during the course of it. These were in addition to his formal summing up, which commenced on 28 September 2023. This was accompanied by various aides-memoire.
[4] R v Alzuain & Ors (No 5) [2023] SASC 137 (Martin AJ).
Following their convictions, and in accordance with s 11 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), the trial judge sentenced each of the appellants to imprisonment for life and, on 11 December 2023, he fixed a non‑parole period of 35 years for Hussain and Musa, and 30 years for the others. These sentences were explained in detailed sentencing remarks. It was agreed that the applications for permission to appeal sentence should await the outcome of the conviction appeals and, given their outcome, it will be necessary to dismiss the sentence appeals.
The grounds of appeal
There were, broadly, 30 issues raised on appeal. Many of the grounds supporting those issues were common to various appellants. Some of those issues were not pressed. Our conclusion on the appeal means that it has not been necessary to address every ground of appeal relating to directions given by the trial judge. Where an issue has not been addressed, that is because it has not been necessary to do so. The issues arising are set out in the table below, and can be broadly grouped into the following categories:
(a)The applications for a stay and for the exclusion of the evidence of VI;
(b)The directions as to permissible reasoning and separate trials;
(c)The OMCG-related evidence;
(d)The directions regarding identity and the use of CCTV footage;
(e)The directions regarding the available pathways to guilt;
(f)The prosecution opening and the admission of particular items of evidence;
(g)The defence cases, and whether these were adequately put in the summing up;
(h)Whether the verdicts are unreasonable or unsupported by the evidence.
The table sets out the issues for determination on the appeal and indicates the applicants who pursue each issue. The emphasis within the table highlights the applicant(s) who pursued the issues and, on whose submissions, other applicants relied.
Issue 1: Admitting expert evidence of Detective Senior Sergeant Lienert as to characteristics and culture of OMCGs and the Hells Angels Husain Adopts Pryde G9; Mohamed G4 & Jalleh G1 and relies on their joint submissions (‘JS’) Mohamed Ground 4 (JS with Jalleh) Musa Ground 7 (adopts Mohamed G4 & Jalleh G1 and their JS) Jalleh Ground 1 (JS with Mohamed) Montgomery Ground 8B (adopts Mohamed & Jalleh JS) Pryde Ground 9 (adopts Mohamed & Jalleh JS) Sianis Adopts Mohamed G4 & Jalleh G1, Pryde G9, Musa G7 and relies on their submissions Issue 2: Permitting prosecution to adduce discreditable conduct evidence relating to five previous events of violence between Hells Angels and Finks OMCGs (s 34P) Husain Ground 9 (also adopts Montgomery submissions) Mohamed Adopts Montgomery G8 & 8A, Husain G9 & 10 and relies on their submissions Musa Ground 6 (adopts Montgomery G8 & 8A, Husain G9 and submissions) Jalleh Adopts Montgomery G8 & 8A, Husain G9 & 10 & relies on their submissions Montgomery Grounds 8 and 8A (also adopts Husain submissions) Pryde Ground 16 (adopts Montgomery, Husain submissions) Sianis Adopts Montgomery G8 & 8A, Husain G9 & 10, Musa G6 and relies on their submissions Issue 3: Inadequate / erroneous directions as to the permissible and impermissible uses of the discreditable conduct evidence Husain Ground 10 (also adopts Musa, Montgomery submissions) Mohamed Adopts Montgomery G8 & G8A, Husain G10, Musa G5 and submissions Musa Ground 5 Jalleh Adopts Montgomery G8 & G8A, Husain G10, Musa G5 and submissions Montgomery Ground 8A (also adopts Husain, Musa submissions) Pryde Ground 17 (adopts Montgomery, Husain, Musa submissions) Sianis Adopts Montgomery G8 & 8A, Husain G10, Musa G5 and relies on their submissions Issue 4: Failure to exclude the evidence of VI (or stay the trial) in the exercise of the public policy or fairness discretions Husain Ground 5 (adopts other appellant’s submissions) Mohamed Ground 5 (JS with Jalleh; also adopts Musa G4, Pryde G10 and submissions) Musa Ground 4 Jalleh Ground 2 (JS with Mohamed; also adopts Musa G4, Pryde G10 and submissions) Montgomery Ground 12 (adopts Mohamed & Jalleh JS, Musa, Pryde submissions) Pryde Ground 10 (also adopts Mohamed & Jalleh JS, Musa submissions) Sianis Adopts Mohamed G5 & Jalleh G2, Musa G4, Pryde G10, and relies on their submissions Issue 6: Erroneous direction that it was open to the jury to be satisfied beyond reasonable doubt that Musa, Husain, Jalleh and Pryde could be identified as specific offenders in the CCTV footage, and/or failure to direct that the CCTV footage was incapable of proving beyond reasonable doubt the specific identity of any of the offenders of the ‘group of nine’ men at Langford Street. Husain Ground 8 (also adopts Musa submissions) Mohamed Adopts Musa G9 and submissions Musa Ground 9 Jalleh Ground 5 (adopts Musa G9 and submissions) Montgomery Ground 16 (adopts Husain submissions; adopts Musa G8 & 9) Pryde Ground 18 (adopts Musa submissions) Sianis Grounds 8 & 9 (adopts other appellants’ submissions) Issue 7: Inadequate directions about dangers in comparison between physical attributes of the men in the CCTV footage and physical attributes of the accused Husain Ground 8 (adopts Musa submissions) Mohamed Adopts Musa G8 and submissions Musa Ground 8 Jalleh Adopts Musa G8 and submissions Montgomery Adopts Musa G8 & G9 on appeal Pryde Ground 6 (adopts Musa submissions) Sianis Adopts Musa G8 Issue 9: Admissibility of text messages against accused who were not party to them Husain Adopts Pryde G5; Musa G2 and submissions Mohamed Adopts Musa G2 and submissions Musa Ground 2 Jalleh Adopts Musa G2 and submissions Pryde Ground 5 (adopts Musa submissions) Sianis Ground 6 (adopts Musa submissions) Issue 10: Erroneous directions concerning joint criminal enterprise (in particular, as to the identity of the target of any agreement to kill) Husain Adopts Montgomery G3A, Mohamed G2 and relies on their submissions Mohamed Ground 2 (also adopts Montgomery G3A & submissions) Musa Adopts Montgomery G3A and submissions Jalleh Adopts Montgomery G3A, Mohamed G2 and relies on their submissions Montgomery Ground 3A Pryde Ground 13 (adopts Montgomery, Mohamed submissions) Sianis Adopts Montgomery G3A, Mohamed G2 and relies on their submissions Issue 11: Erroneous directions concerning extended joint enterprise without being satisfied (a) as to need for foresight of death and (b) of continued participation following the requisite foresight Husain Adopts Montgomery G4 and submissions Mohamed Adopts Montgomery G4 and submissions Musa Adopts Montgomery G4 and submissions Jalleh Adopts Montgomery G4 and submissions Montgomery Ground 4 (part (a) not pressed) Pryde Ground 14 (adopts Montgomery submissions) Sianis Adopts Montgomery G4 and submissions Issue 13: Erroneous directions concerning the elements of murder, including: (a) identifying the subject of the arrangement as ‘threaten’, (b) description of necessary foresight as ‘go further than threaten’, and (c) omission of direction requiring continued participation with foresight Husain Adopts Musa G15 and submissions Mohamed Adopts Musa G15 and submissions Musa Ground 15 Jalleh Adopts Musa G15 and submissions Montgomery Ground 4A (adopts Musa submissions) Pryde Ground 20 (adopts Musa submissions) Sianis Adopts Musa G15 and submissions Issue 15: Refusal to permit the accused to adduce evidence of RI’s employment at the DPP and her conduct in accessing the prosecution file Husain Ground 7 (also adopts Musa submissions) Mohamed Adopts Musa G12, Husain G7 and relies on their submissions Musa Ground 12 Jalleh Adopts Musa G12, Husain G7 and relies on their submissions Montgomery Ground 10A (adopts Musa submissions) Pryde Ground 24 (adopts Musa, Husain submissions) Issue 21: Failure to direct as to an essential finding of fact as to whether all parties to any agreement agreed that loaded firearms would be presented Mohamed Ground 3 Jalleh Adopts Mohamed G3 Issue 22: Unreasonable verdict on the basis that they were inconsistent with the failure of the jury to convict Moradi Mohamed Adopts Montgomery G2 Montgomery Ground 2 (not pressed on appeal) Issue 23: Unsafe verdict in relation to particular accused Husain Ground 15 Mohamed Ground 6 (also adopts Sianis G11, Montgomery G1 & submissions) Musa Ground 14 Montgomery Ground 1 (not pressed on appeal) Sianis Ground 11 Issue 25: Miscarriage by reason of joint trial Husain Ground 11 Montgomery Ground 6 Issue 28: Evidence of pistol holder found in boot of car associated with Sianis, admitted in the case against Husain Husain Grounds 4 & 4A Sianis Adopts Husain G4 & 4A and submissions Issue 29: Evidence of Dymocks bag wrongly admitted against Jalleh Jalleh Ground 3 Montgomery Adopts Jalleh G3 Issue 30: Evidence of photographs and testimony of Sorrell wrongly admitted Jalleh Ground 4
The reasons are set out as follows:
Overview of the factual background
The grounds of appeal
General principles concerning criminal appeals in South Australia
The prosecution case
Issue 1: Failure to exclude the evidence of Detective Senior Sergeant Lienert
The complaint on appeal
Issue 2: Admission of Discreditable Conduct Evidence
Issue 3: Erroneous s 34R Evidence Act directions
Issue 4: Failure to exclude the evidence of VI (or stay the trial) in the exercise of the public policy or fairness discretion
The application for a stay and the exclusion of the evidence of VI
Principles: the approach of the appeal court to permanent stay and exclusion
The factual basis for the challenge to the evidence of VI
The reasons of the primary judge – the stay application
The reasons of the primary judge – the exclusion application
The appellants’ contentions concerning a stay
The ‘key issues’ concerning VI’s evidence and the stay application
The appellants’ contentions regarding the exclusion of VI’s evidence
Bunning v Cross
General unfairness
The determination of the stay application
The determination of the exclusion application
Bunning v Cross
The general unfairness discretion
Conclusion on Issue 4
Issues 6 and 7: Erroneous directions with respect to identification
The asserted mischiefs in the prosecution address
Proposition 1: the jury were told that they could make a positive identification of Musa and three others from the CCTV footage
Proposition 2: the comparison process was prejudicial and dangerous
Proposition 3: the usage of comparison footage of a shooting, where it is disputed Musa was present, created a mischief
The warnings given by the trial judge
The complaints about the directions
Conclusion on Issues 6 and 7
Issue 9: The admissibility of text messages against all accused
Issue 10: The target of the joint enterprise
Issue 11(a): Foresight of the result of contemplated conduct
Issues 11(b) and 13: Requirement for continued participation
Issue 15: The evidence of RI’s employment at the DPP and her conduct in accessing the prosecution file
Issue 21: Failure to direct as to an essential finding of fact as to whether all parties to any agreement agreed that loaded firearms would be presented
Issue 22: Whether the verdicts were unreasonable on the basis that they were inconsistent with the failure of the jury to convict Moradi
Issue 23: Whether the verdicts are unreasonable and cannot be supported having regard to the evidence
Principles
Summary of the circumstantial evidence
The comparison evidence
Motive
Evidence of telecommunications and other communications prior to the shooting
The offenders’ cars
The convoy and other footage during the convoy
The vehicles in the driveway of 501A Salisbury Highway at 3:00pm
The inferences sought to be drawn from the circumstantial evidence
Other pieces of circumstantial evidence
The evidence of VI, corresponding CCTV footage and telecommunication service connections
The challenges to the reasonableness of the verdicts
Whether it was open to accept VI’s evidence
Whether it was open to be satisfied beyond reasonable doubt that the composition of the group did not change between 501A and Langford Street
Other evidence said to require a reasonable doubt
Conclusion
Issue 25: Miscarriage of justice by reason of joint trial
Montgomery
Evidence admissible only against Musa (or Musa and Mohammed)
Evidence admissible only against Jalleh
Evidence admissible only against Sianis and Husain
Evidence against other accused
Husain
Consideration
Issue 28: Admission of and directions relevant to the holster
The evidence relating to the holster
The ruling on admissibility
Admissibility of the holster against Husain
The trial judge’s directions
Issue 29: Admission of the Dymocks bag against Jalleh
Issue 30: Admission of evidence of photographs and evidence of Dr Sorrell
Conclusion on the appeal
General principles concerning criminal appeals in South Australia
Section 158 of the CPA relevantly provides:
158—Determination of appeals in ordinary cases
(1)The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a) the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) on any ground there was a miscarriage of justice.
(2)The Court of Appeal may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3)Subject to the special provisions of this Act, the Court of Appeal will, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
Where it is contended that the verdict is unreasonable or cannot be supported having regard to the evidence under s 158(1)(a) of the CPA, the question for the appeal court is whether, upon the whole of the evidence, it was not open for the jury to be satisfied beyond reasonable doubt that the accused was guilty.[5] That is to say, ‘whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[6]
[5] M v The Queen (1994) 181 CLR 487 at 492-493 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439 at 450-451 (Gaudron, McHugh and Gummow JJ); MFA v The Queen (2002) 213 CLR 606 at [25] (Gleeson CJ, Hayne and Callinan JJ); SKA v The Queen (2011) 243 CLR 400 at [11] (French CJ, Gummow and Kiefel JJ); R v ZT (2025) 99 ALJR 676 at [9]-[12] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), at [86]-[90] (Gordon, Edelman and Steward JJ). As for a trial by the judge alone under s 7(1) of the Juries Act 1927 (SA), see Dansie v The Queen (2022) 274 CLR 651.
[6] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, with whom Gleeson CJ and Heydon J agreed).
When answering that question, the appeal court must start with the propositions that the jury is the body entrusted with the primary responsibility for determining guilt or innocence, and that the jury had the benefit of seeing and hearing the witnesses give their evidence.[7] The ‘central place of the jury trial’ was described in the following way by the High Court in R v Baden-Clay:[8]
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”.[9] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect,[10] the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[11] Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.[12]
(Footnotes in original)
[7] M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400 at [13] (French CJ, Gummow and Kiefel JJ).
[8] R v Baden-Clay (2016) 258 CLR 308 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[9] Hocking v Bell (1945) 71 CLR 430 at 440. See also Brennan v The King (1936) 55 CLR 253 at 266; Sparre v The King (1942) 66 CLR 149 at 154; Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 188; Chamberlain v The Queen[No 2] (1984) 153 CLR 521 at 601; MacKenzie v The Queen (1996) 190 CLR 348 at 365; MFA v The Queen (2002) 213 CLR 606 at 621 [48].
[10] Kingswell v The Queen (1985) 159 CLR 264 at 301; Brown v The Queen (1986) 160 CLR 171 at 201; Katsuno v The Queen (1999) 199 CLR 40 at 63-64 [49]; Cheng v The Queen (2000) 203 CLR 248 at 277-278 [80]; Alqudsi v The Queen (2016) 258 CLR 203 at 208 [2], 213 [16], 273-274 [195].
[11] M v The Queen (1994) 181 CLR 487 at 494; MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]‑[51], 623 [56].
[12] M v The Queen (1994) 181 CLR 487, 494-495. See also R v Hillier (2007) 228 CLR 618 at 630 [20] and the authorities there cited.
The appeal court is required to determine for itself whether the evidence was sufficient in nature and quality to eliminate reasonable doubt. Making due allowance for the ‘natural limitations’ that exist where the appeal court must proceed wholly or substantially on the record,[13] the appeal court must make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’.[14]
[13] Fox v Percy (2003) 214 CLR 118 at 125‑126 [23] (Gleeson CJ, Gummow and Kirby JJ).
[14] Morris v The Queen (1987) 163 CLR 454 at 473 (Deane, Toohey and Gaudron JJ).
The task for the appeal court is an objective task, not concerned with what a reasonable jury would have done, nor with what the particular jury did or did not do.[15] The issue is not approached as a question of law. The issue is one of fact for, as was explained in M v The Queen:[16]
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict.[17] Questions of law are separately dealt with ... The question is one of fact which the court must decide by making its own independent assessment of the evidence[18] and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of the jury to stand”.[19]
(Footnotes in original)
[15] Weiss v The Queen (2005) 224 CLR 300 at [40]-[42] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[16] M v The Queen (1994) 181 CLR 487 at 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).
[17] See Raspor v The Queen (1958) 99 CLR 346, 350-351; Plomp v The Queen (1963) 110 CLR 234, 246, 250.
[18] Morris v The Queen (1987) 163 CLR 454.
[19] See Hayes v The Queen (1973) 47 ALJR 603, 604.
An appellant must do more than show that the evidence was open to criticism,[20] or that there was material which might have led to a different conclusion.[21] Where, following an independent review undertaken of the whole of the record, the appeal court entertains reasonable doubt, it should proceed in the following way:[22]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(Footnotes omitted)
[20] R v Shueard (1972) 4 SASR 36 at 39 (Bray CJ, Hogarth and Bright JJ). See also R v Weetra [2004] SASC 337 at [28] (White J).
[21] Lipke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, with whom Gleeson CJ and Heydon JJ agreed); R v Bolte [2010] SASC 112 at [73] (Layton J, with whom Gray and Kourakis JJ agreed).
[22] M v The Queen (1994) 181 CLR 487 at 494-495 (Mason CJ, Deane, Dawson and Toohey JJ). See SKA v The Queen (2011) 243 CLR 400 at [13] (French CJ, Gummow and Kiefel JJ).
That is, in making due allowance for the role of the jury and any advantages it may have had in seeing the evidence given at trial,[23] the appeal court will first determine whether it has a doubt which the jury should have shared, before next considering whether the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt and permitting the conclusion that no miscarriage of justice occurred.[24] Recently, the High Court has explained the need for the parties to identify the evidence that the appeal court must review and assess:[25]
However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought[26] and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.
In some appellate courts, the practice in criminal appeals is for the entirety of the trial court’s file to be provided to the appellate court. Even so, given the adversarial nature of an appeal and the appellate court’s function in hearing an appeal, it is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court’s function[27] and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.
(Footnotes in original)
[23] Dearman v Dearman (1908) 1 CLR 549 at 561 (Isaacs J); MFA v The Queen (2002) 213 CLR 606 at [75] (McHugh, Gummow and Kirby JJ).
[24] See also the argument recorded in Pell v The Queen (2020) 268 CLR 123 at 128-129.
[25] R v ZT (2025) 99 ALJR 676 at [11]-[12] (Gageler CJ, Gleeson, Jagot and Beech-Jones).
[26] See Whitehorn v The Queen (1983) 152 CLR 657 at 682; 57 ALJR 809; R v Baden-Clay (2016) 258 CLR 308 at [48]; 90 ALJR 1013.
[27] Pell v The Queen (2020) 268 CLR 123 at [10]; 94 ALJR 394.
It will be necessary to return to the relevant authorities on s 158(1)(a) of the CPA when addressing this ground of appeal later in these reasons.
The precise nature and scope of a wrong decision on ‘any question of law’ under s 158(1)(b) of the CPA has been regarded as problematic.[28] Nonetheless, this limb will include mis-directions on matters of substantive as well as adjectival law, and the question is whether the error constitutes a miscarriage of justice in the sense of a departure from a trial according to law.[29]
[28] R v Vaughan (No 2) (2009) 105 SASR 532 at [71] (Kourakis CJ).
[29] Filippou v The Queen (2015) 256 CLR 47 at [13] (French CJ, Bell, Keane and Nettle JJ).
In Williams v The Queen, the High Court considered the phrase ‘question of law alone’ in connection with the admission of evidence at a criminal trial.[30] The Court drew a distinction between questions of mixed law and fact, and questions of law alone, concluding that an appeal on a ground that there had been a wrongful rejection of evidence was not an appeal on a question of law alone.[31] In R v Vaughan (No 2), Kourakis J (as he then was) gave examples of questions of law:[32]
A decision on a question of law made by the trial Judge does not require permission even if the decision must be made in a factual context. A trial Judge is required by law to charge the jury with respect to a number of matters. The elements of the offence, the onus of proof and, I think, any limits on the proper use of the evidence which has been received, are the most obvious of these matters. A failure to correctly direct the jury on these matters is an error of law.[33] A failure to direct on an alternative verdict may be an error of law even though whether the verdict is available will depend on the evidence.[34] Rules of practice relating to warnings about some types of evidence have sometimes crystallised into rules of law and a failure to give a warning about evidence of that nature is also an error of law. The obligation to give these directions does not involve any determination of fact or exercise of discretion by the trial Judge; the content of the legal obligation to give the warning exists independently of a determination of the particular facts of the case even though the content of the mandatory direction will obviously be affected by the evidence adduced in the case. Rulings that a charge is not bad for latent duplicity, that there is a case to answer, or that certain evidence is potentially corroborative, are also I think examples of rulings on questions of law against which an appeal can be brought as of right.
(Footnotes in original)
[30] Williams v The Queen (1986) 161 CLR 278.
[31] Williams v The Queen (1986) 161 CLR 278 at 301-302 (Mason and Brennan JJ).
[32] R v Vaughan (No 2) (2009) 105 SASR 532 at [81] (Kourakis J).
[33] It is an appeal on a question of law to allege that there has been a misdirection on a rule of substantive or procedural (or evidential) law Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 150 (Kirby J).
[34] In Gillard v The Queen (2003) 219 CLR 1 the High Court held that it was a wrong decision on a question of law for the trial Judge not to direct the jury that manslaughter was available as an alternative verdict to murder because on “one available view of the facts” the appellant was guilty of manslaughter by unlawful and dangerous act: (Gillard v The Queen (2003) 219 CLR 1, 14, [26], 30 [85], 40 [129]).
The High Court has articulated the following types of error required to establish a miscarriage of justice under s 158(1)(c) of the CPA:
1.There must be a departure from a trial conducted according to law which, short of a fundamental departure,[35] is to the prejudice of the accused.[36]
2.Prejudice is not presumed. Rather, it must be shown that there is a real chance or possibility of prejudice.[37]
3.The Court must inquire into how the error or irregularity may have ‘affected the basis on which the trial jury actually reached its verdict in the totality of the events that occurred’.[38]
4.The error or irregularity must have the capacity for practical injustice, capable of affecting the outcome of the trial.[39]
5.The Court must undertake an inquiry into the nature of the error or irregularity, considering its capacity to affect the verdict, rather than its likely effect on the verdict, or whether the irregularity may have deflected the jury from its proper task.[40]
[35] Maher v The Queen (1987) 163 CLR 221 at 234 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ); Katsuno v The Queen (1999) 199 CLR 40 at [35] (Gaudron, Gummow and Callinan JJ); Lee v The Queen (2014) 253 CLR 455 at [48] (French CJ, Crennan, Kiefel, Bell and Keane JJ).
[36] Hofer v The Queen (2021) 274 CLR 351 at [41] (Kiefel CJ, Keane and Gleeson JJ).
[37] Hofer v The Queen (2021) 274 CLR 351 at [118] (Gageler J); HCF v The Queen (2023) 97 ALJR 978 at [2] (Gageler CJ, Gleeson and Jagot JJ); Zhou v The Queen [2021] NSWCCA 278 at [22] (Beech‑Jones CJ at CL, with whom Davies and Wilson JJ agreed).
[38] Hofer v The Queen (2021) 274 CLR 351 at [121] (Gageler J).
[39] Edwards v The Queen (2021) 273 CLR 585 at [74] (Edelman and Steward JJ); HCF v The Queen (2023) 97 ALJR 978 at [78] (Edelman and Steward JJ).
[40] Huxley v The Queen (2023) 98 ALJR 62 at [41] (Gordon, Steward and Gleeson JJ).
These different approaches emerged following Weiss v The Queen,[41] in cases such as HCF v The Queen,[42] and Huxley v The Queen.[43]
[41] Weiss v The Queen (2005) 224 CLR 300.
[42] HCF v The Queen (2023) 97 ALJR 978.
[43] Huxley v The Queen (2023) 98 ALJR 62.
In Brawn v The King the High Court has now harmonised those various formulations concerning a ‘miscarriage of justice’ holding that, aside from a ‘fundamental’ error or irregularity, it must be shown that an error or irregularity was ‘material’ in the sense that it ‘could realistically have affected the reasoning of the jury to a verdict of guilty’:[44]
A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross‑examination by a crown prosecutor[45] or a misstatement of fact by the trial judge in the summing up.[46] If such an error or irregularity was “fundamental” in the sense discussed in the authorities[47] then there will be a miscarriage of justice and no occasion to address the proviso separately will arise. The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.[48]
For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.
In each instance where the materiality threshold is met, the error or irregularity will be one that could realistically have affected the jury’s reasoning to a verdict of guilty.
(Footnotes in original)
[44] Brawn v The King [2025] HCA 20 at [9]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones) (‘Brawn’).
[45] Such as in Hofer (2021) 274 CLR 351.
[46] Such as in Simic v The Queen (1980) 144 CLR 319 at 333-334.
[47] Wilde v The Queen (1988) 164 CLR 365 at 373; Katsuno v The Queen (1999) 199 CLR 40 at 60 [35]; Weiss v The Queen (2005) 224 CLR 300 at 317-318 [46]; Hofer (2021) 274 CLR 351 at391-392 [123], referring to Maher v The Queen (1987) 163 CLR 221 at 234; Hoang v The Queen (2022) 276 CLR 252 at 268 [42]; Huxley (2023) 98 ALJR 62 at 72-73 [44]; 416 ALR 359 at 371.
[48] HCF (2023) 97 ALJR 978 at 982-983 [7] at 996 [83]; 415 ALR 190 at 193, 211.
Following a trial by jury, where the appeal court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, whether there has been no substantial miscarriage of justice under the ‘proviso’ in s 158(2) of the CPA necessarily invites attention to whether guilt was established regardless of any error or irregularity.[49] In Kalbasi v Western Australia, the majority revisited the High Court’s decision in Weiss v The Queen,[50] explaining:[51]
… The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court. The appellate court’s assessment does not turn on its estimate of the verdict that a hypothetical jury, whether “this jury” or a “reasonable jury”, might have returned had the error not occurred.[52] The concepts of a “lost chance of acquittal” and its converse the “inevitability of conviction” do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.
(Footnote in original)
[49] AK v Western Australia (2008) 232 CLR 438 at [59] (Heydon J) ‘deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury’s verdict might have been different if the identified error had not occurred’.
[50] Weiss v The Queen (2005) 224 CLR 300 at [12]-[25] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[51] Kalbasi v Western Australia (2018) 264 CLR 62 at [12] (Kiefel CJ, Bell, Keane and Gordon JJ; Gageler, Nettle and Edelman JJ dissenting).
[52] Weiss v The Queen (2005) 224 CLR 300 at 314 [35].
The High Court explained the requisite approach to the proviso in Hofer v The Queen:[53]
In Weiss[54] this Court resolved the apparent tension in the former Victorian equivalent of s 6(1) of the Criminal Appeal Act between the command to allow an appeal where the court is of the opinion that there was a miscarriage of justice, and the proviso that it may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred, on the basis that the appellate court’s assessment of the appellant’s guilt “is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do”, but on the basis that the appellate court is itself satisfied of the appellant’s guilt beyond reasonable doubt. As was explained by the plurality in Kalbasi v Western Australia[55], in such a case “the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had”.
(Footnotes in original)
[53] Hofer v The Queen (2021) 274 CLR 351 at [59] (Kiefel CJ, Keane and Gleeson JJ).
[54] (2005) 224 CLR 300 at 314 [35], 317 [44].
[55] (2018) 264 CLR 62 at 70 [12].
More recently, in Brawn the High Court explained that the inquiry required by ‘the materiality threshold or test’ does not ‘collapse into the inquiry undertaken in applying the proviso’:[56]
… The inquiry required by this materiality threshold or test does not collapse into the inquiry undertaken in applying the proviso. The question posed by the materiality test looks to the possible effect of the error or irregularity on the trial that was had. In contrast, the task required of an appellate court in applying so much of the proviso that requires it to address the “negative proposition” stated in Weiss,[57] namely by asking whether “the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”, is qualitatively different from asking whether an error or irregularity could realistically have affected the jury’s reasoning to the verdict of guilty that was returned by the jury in the trial that occurred. The proviso was addressed by all members of the Court in Hofer. As the judgments in Hofer illustrate,[58] it is conceivable but not inevitable that an appellate court, having concluded that an error or irregularity was such that a miscarriage of justice has been established, could nevertheless be satisfied of the negative proposition, depending on the nature of the evidence and the nature of the error or irregularity.[59]
(Footnotes in original)
[56] Brawn [2025] HCA 20 at [11].
[57] Weiss (2005) 224 CLR 300 at 317 [44].
[58] (2021) 274 CLR 351 at 367 [49], 374-375 [72]-[77], 391-392 [123], 393 [130].
[59] See Kalbasi (2018) 264 CLR 62 at 83 [57].
Later, the Court explained that the burden of satisfying the proviso rests on the prosecution:[60]
… The burden of satisfying the proviso rests upon the prosecution and the proviso, including the negative proposition, is to be addressed by the appellate court in accordance with existing authority, principally Weiss.[61] If the burden imposed on the prosecution by the proviso is discharged, the appeal must be dismissed. Otherwise, the appeal must be allowed.
(Footnote in original)
[60] Brawn [2025] HCA 20 at [16].
[61] See also Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Castle v The Queen (2016) 259 CLR 449.
It is therefore necessary for this Court to make its own independent assessment as to whether each appellant was proved guilty on the evidence on which the jury returned their verdicts of guilt.[62] The question for the appeal court is effectively whether, on the evidence properly admitted at trial, guilt was established beyond reasonable doubt. If so, no substantial miscarriage of justice occurred and the appeal may be dismissed.
[62] Hofer v The Queen (2021) 274 CLR 351 at [84] (Gageler J).
Whether there was scope to apply the proviso in this case will be addressed later in these reasons.
The prosecution case
The prosecution case was that after the firebombing of the Alzuain family home at 12 Rosecombe Place, Parafield Gardens on the evening of 20 November 2012, the accused men and Dwayne Bradley entered into a plan to exact revenge upon the Finks. Their revenge took the form of a joint enterprise to kill or cause serious harm to Bonnici, the Sergeant-at-Arms of the Finks. Alternatively, it was alleged that each accused was party to a criminal enterprise and foresaw the possibility that one of their number would discharge a firearm with murderous intent.
The prosecution case against the appellants was largely circumstantial and based on the following lines or strands of evidence:
1.The Hells Angels membership evidence, by which the prosecution alleged that each accused was associated with the Hells Angels.
2.The motive evidence, comprising the series of events which both revealed and caused ongoing hostility between the Hells Angels and the Finks, including the ‘firebombing’ of the Alzuain family home on the night before the shooting. This evidence was said to demonstrate a ‘corporate motive’ in those associated with the Hells Angels to commit the subject crime.
3.The evidence of the witness VI, who was said to be known to the accused, or at least some of them, and who gave evidence about each of them having been seen by him at 501A Salisbury Highway, Parafield Gardens earlier on the morning before the shooting. Evidence was given about the distribution of hooded tops and firearms to the group of nine which included the eight accused at this address. The prosecution case was that by the time of this gathering the joint enterprise was agreed and had commenced being implemented.
4.The evidence concerning the movements of the two small white vehicles, a Nissan Pulsar and a Mazda 2, in which the nine men were said to have travelled in convoy to the tattoo parlour owned by Bonnici, the ‘Lords of Ink’. At that address, one employee was assaulted, others were threatened, and property was damaged. The prosecution case was that the convoy then moved to Langford Street, and the workshop which Bonnici was known to visit and where it was believed Bonnici would be found.
5.The evidence of the CCTV footage at Langford Street which was said to depict the group of nine in a way which matched the descriptions of the accused men.
6.The evidence about what occurred at Langford Street which comprised forensic evidence, eyewitness evidence, as well as the CCTV footage.
7.The evidence regarding the movements of the Mazda after the shooting. The Mazda was owned by RM, the girlfriend of Montgomery, and it returned to 501A Salisbury Highway before travelling south towards Kangarilla, where it was destroyed by fire.
8.The telecommunications evidence concerning the mobile devices of each of the accused, which was relied on to trace their movements.
9.The DNA samples evidence as to what was found on certain exhibits, including the Nissan Pulsar.
These strands of evidence were relied on by the prosecution to demonstrate the guilt of the appellants in the following way.
It was agreed that as at November 2012 each accused had the following connections with the North Crew chapter of the Hells Angels:
1.Husain was a full member;
2.Bradley, Mohamed, Jalleh, Moradi, Pryde, and Sianis were prospects;
3.Musa was neither a member nor a prospect; and
4.Montgomery was a ‘hang‑around’.
The membership or association of each was relevant on the prosecution case as to motive. The prosecution maintained that the firebombing of the Alzuain family home at Rosecombe Place was regarded as an attack on both the Hells Angels and the Alzuain family. In addition, however, there were numerous other incidents in the 18 months preceding the shooting which were said to demonstrate growing hostility.
The Crown called Lienert to give evidence about the culture of OMCGs such as the Hells Angels. On this evidence, the prosecution case was that each accused had an ‘obligation’ to uphold the reputation of the Hells Angels as an organisation to be feared. In this way, it was alleged that each of the accused had a ‘corporate motive’ to address the firebombing by targeting the Finks. In particular, the prosecution case was that it was determined to target Bonnici who, as a senior member of the Finks, was perceived as a figurehead of that club in South Australia.
The motive evidence represented an important part of the primary prosecution case. As a result, it occupied much of the hearing. The evidence was presented as a series of trials within the trial to suggest that, after 18 months of growing hostility between the Hells Angels and the Finks, tensions between these clubs erupted after the firebombing. The prosecution case was that the accused, or at the least some of them, believed the Finks to be responsible for the firebombing and they devised their revenge. The plan revolved around the targeting of Bonnici so as to send a message to the Finks that disrespecting the Hells Angels, or those associated with them, would not be tolerated and the joint criminal enterprise to kill or cause serious harm to Bonnici was intended as the means by which that message would be sent.
On the prosecution case, the accused attended at 501A Salisbury Highway, where Mohamed and Montgomery lived. The evidence of VI as to who was present was at this gathering was important. On the evidence of VI, firearms were displayed on a table in the living area of the home. Though VI left around 10 to 15 minutes before the convoy left, the prosecution case was that some of the accused armed themselves with these firearms and took them in the convoy to the Lords of Ink tattoo parlour and then Langford Street in their search for Bonnici.
On his own account, however, VI’s evidence could not identify which, if any, of the accused he saw left those premises and, if they did, in which car they may have travelled. This was said to be significant given the evidence of Detective Maidment about the presence of four vehicles in the driveway or immediate vicinity of 501A Salisbury Highway at 3:00pm on the day of the shooting. At least two of these vehicles had not been seen by VI.
The convoy comprised the white Nissan Pulsar owned by Jake Martin‑Herde, an associate of the North Crew chapter of the Hells Angels, and the white Mazda 2 owned by Montgomery’s girlfriend, RM. On the prosecution case, Musa drove the Nissan and Montgomery drove the Mazda.
The prosecution case was that the convoy arrived at Bonnici’s Lords of Ink tattoo parlour at around 1:15pm and only remained for about five minutes. When the group arrived at the premises and found that Bonnici was not present, they assaulted an employee, damaged property and made threats. There was no evidence that any firearms were used or seen at the Lords of Ink.
The prosecution case was that the same group, still looking for Bonnici, left the Lords of Ink and travelled in the same convoy to Langford Street where it was presumed they would find Bonnici. CCTV footage from Langford Street as well as from premises across the road captured the arrival of the two vehicles and the group of nine making their way down the driveway before the shooting. Again, Bonnici was not present in the workshop. Nonetheless guns were produced and discharged, resulting the death of Mr De Ieso.
The prosecution did not invite the jury to conclude that the shooting was a case of mistaken identity, and there was evidence to suggest that this was unlikely given the dissimilarity in the appearances of Mr De Ieso and Bonnici.
In the course of addressing the events at Langford Street using the CCTV footage, the prosecution assigned a number to each of the men depicted, linking who was seen to a particular accused:
1.Person 1 was armed with a firearm and was said to be Husain.
2.Person 2 was also armed with a firearm and was said to be Jalleh.
3.Person 3 fired the fatal shot using a sawn-off shotgun, and was said to be Musa.
4.Person 4 was armed and was said to be Sianis.
5.Person 5 was unarmed and was said to be Mohamed.
6.Person 6 was also unarmed and was said to be Bradley.
7.Person 7 was also unarmed and was said to be Moradi.
8.Person 8 was armed and was said to be Pryde.
9.Person 9 was unarmed, though carrying a baton or stick, and was said to be Montgomery.
The trial judge directed the jury that the CCTV and eyewitness evidence was incapable of proving that a particular person on the CCTV footage was any particular accused. That direction was given as a matter of law.[63] This left open the reasonable possibility that, if any accused were present, they could have been one of the unarmed men.
[63] Summing Up, p 101.
An important limb of the prosecution case was what was described as an unusual ‘period of inactivity’ concerning each accused’s mobile telephone device at the time of the shooting. On the basis of this evidence, it was said that each accused had left his mobile phone at 501A Salisbury Highway so as not to leave any trace of their movements. This data was said to show that none of the accused answered any calls or responded to any text messaging in the period of about one hour surrounding the shooting. The prosecution suggested that this behaviour was unusual.
After the shooting, the Mazda was driven back to 501A Salisbury Highway where Montgomery and Jalleh collected RM before driving south and leaving her at the Marion shopping centre. The prosecution case was that they continued on to Kangarilla and set fire to the Mazda.
Whilst this was occurring, the prosecution case was that Musa met with VI at a local park and handed him a bag containing a number of firearms, instructing him to dispose of them by taking them to an associate, Rabeah Hamra.
Two days later, on the morning of 23 November 2012, the prosecution case was that Musa and VI attended a tattoo parlour and, whilst Musa was being tattooed, he handed VI another firearm which he told VI to keep.
Later that night, VI was found in possession of that firearm when he was arrested by police in Light Square, Adelaide. The firearm was a Harrington & Richardson revolver which ballistics testing later revealed had been discharged during the shooting at Langford Street. It will be necessary to return to the evidence concerning VI.
Issue 1: Failure to exclude the evidence of Detective Senior Sergeant Lienert
The complaint that the primary judge erred on the voir dire in refusing to exclude the evidence of Lienert was made by Mohamed Alzuain (Ground 4), Jalleh (Ground 1), Musa Alzuain (Ground 7), Montgomery (Ground 8B), and Pryde (Ground 9). All appellants, including Husain Alzuain and Sianis, adopted the joint submissions of Mohamed Alzuain and Jalleh on this issue. Mohamed Alzuain’s Ground 4 reads:
The learned Judge on the voir dire erred, and occasioned a miscarriage of justice, by admitting the expert evidence of Detective Lienert as to the characteristics and culture of Outlaw Motorcycle Gangs and of the Hells Angels Motorcycle Club, in circumstances where there was a realistic risk, owing to Lienert’s “significant and ongoing involvement” in the investigation of the murder, of bias affecting his evidence, such that its probative value did and could not outweigh its prejudicial effect: R v Alzuain & Ors (No 2).
Ground 7 of Musa Alzuain’s appeal is in similar terms, although it separates out the complaint of bias by reason of Lienert’s involvement in the investigation as occasioning a miscarriage of justice separately from the probative value not outweighing the prejudicial effect of the evidence. Ground 1 of Jalleh’s Notice of Appeal complains that Lienert could not give opinion evidence as an expert on OMCGs as he was not independent from the investigation. In the event, the appellants all adopted the submissions made jointly on behalf of Mohamed Alzuain and Jalleh. That being the case, to the extent that there were differences in the grounds of appeal, those differences were effectively resolved by a single set of submissions.
The challenge on appeal did not extend to challenging the relevant expertise of Lienert, although this had been at issue on the voir dire.[64] The primary judge set out in detail Lienert’s extensive history of involvement in investigating OMCGs, especially since 2006, and his ongoing study of and research into OMCGs. The primary judge noted that Lienert had previously given expert evidence about the workings of OMCGs in disputed fact hearings and bail hearings in the Magistrates and District Courts and had provided expert witness statements for use in the Supreme Court.[65]
[64] R v Alzuain & Ors (No 2) [2022] SASC 162 at [3] (Lovell J).
[65] R v Alzuian & Ors (No 2) [2022] SASC 162 at [7]-[22].
Given the nature of the challenge to the admission of Lienert’s evidence, the primary judge’s summary of the nature of Lienert’s evidence is set out:[66]
[66] R v Alzuian & Ors (No 2) [2022] SASC 162 at [24]-[34].
Lienert stated that members of OMCGs and the clubs to which they belong are often referred to as “one percenters” which means that over time OMCGs have identified themselves as outlaws and adopted the “1%” label as part of their culture. Obtaining membership of OMCGs involves a lengthy process, open only to males. New members are usually sponsored by way of nomination by existing members into the club. Club rules determine the manner in which new members are received. During this period of membership, persons are often referred to by other members as “prospects”, “nominees” or “noms”.
Common characteristics exhibited by OMCGs and their members include:
·a strict code of silence throughout the entire membership
·a culture and acceptance of violence applied internally and externally
·demonstrated loyalty to the club and its members
·strict obedience to club hierarchy and rules that are enforced by monetary fines, expulsion and/or violence
·disregard for established social norms and law enforcement authority
·practices of intimidation towards the community and police
·a high percentage of members have history of prior criminal behaviour
·use of sophisticated electronic equipment
·counter surveillance is conducted and intelligence gathered against law enforcement and rival gangs
·cultivation and corruption of contact persons within key agencies and utilities
Most OMCGs have a similar hierarchical structure, which includes a President, Vice President, Secretary, Treasurer and Sergeant at Arms. OMCGs traditionally have a range of sanctions against members and prospects who fail to obey club policy or rules. Sanctions include suspension, monetary fine, violence or dismissal from the club. Expulsion from the club is likely to result in violence and a seizure of “colours” and property.
Evidence relating to the Hells Angels
The Hells Angels is an international OMCG or “1% club”. The Hells Angels are governed by chapter bylaws, national guidelines and world rules. The Hells Angels in South Australia have formally had chapter clubhouses in Clarence Park, Mansfield Park and Collinswood. Chapters of the Hells Angels have regular meetings commonly referred to as “church”. Members and prospects are required to attend the meetings. Persons associated with the Hells Angels North Crew (“North Crew Chapter”) referred to their clubrooms as the “restaurant” or the “rest”.
“Patched members” are full members of the gang who have earned the right to wear the gang’s “patch” or “colours”. To become a full member the person must go through a “prospect” period where they are assessed by those already within the gang. The rules state that a prospect must serve 12 months before he can be voted on as a member and “there must be a unanimous 100% vote for a prospect become a member” by his chapter.
A Hells Angels prospect is a prospective member seeking full membership to the club. He rides with the gang and performs menial tasks for the club and members. The gang culture demands and expects obedience and subservience from the prospect.
A “hang-around” is a person intending to gain membership of the club. After a period of time a full member may sponsor this person to become a prospect. To do so he must get a 75% majority vote from the chapter and have a history that is “fully traceable”.
Associates are persons invited to spend time in company of members on club “runs” or at club functions. They may not necessarily intend to become a club member.
“Colours” are the official uniform of all OMCGs and are held as “sacred” by club members. Only the full member can wear colours. Prospects and hang-arounds wear different clothing. Photographs of the different types of clothing form part of Lienert’s statement.
Only fully patched members of the Hells Angels are allowed to have club tattoos with the Hells Angels “death head” logo or the words “hells angels”. A member who leaves on “bad standing” will have their club tattoos blanked out or physically removed.
Lienert provided similar evidence in relation to the organisation of the Finks.
Similarly, counsel for Sianis conceded a ‘bare relevance’ of the holster. He also submitted that the prejudicial effect of the evidence outweighed its probative value, having regard to the common opprobrium of firearms and likelihood of speculative reasoning:
That ultimately, in my submission, invites reasoning that becomes more speculative and circumstantial because when you do look clinically at the holster it has played no active part that I can see in the actual commission of the alleged offence. There is no evidence at play as to the dynamic way in which the alleged offence occurred that puts that holster into any active sense.
The trial judge ruled that the evidence of the holster was admissible. He did so within the framework of the s 34P challenge, noting the steps to be taken in considering the admission of evidence under s 34P:
Having regard to each of those steps, in my view this evidence has significant probative value as a piece of circumstantial evidence and it should not be overlooked. That circumstantial evidence is to be considered in the totality, not just taking one piece of evidence and saying, ‘Is it capable of probative value? What weight can be given to it as an individual piece of evidence?’
In the context of the whole case, in my view, this evidence plainly is admissible and should not be excluded in the exercise of the discretion. Its probative value far outweighs any prejudicial effect and, in that context, it needs to be remembered that a significant amount of evidence that will be led in this trial involves discreditable conduct as ruled by Lovell JA, the culture and conduct of the Hells Angels, weapons, etc. It cannot be that these things need to be isolated out individually. Of course care must be taken that they do possess the probative value, even as a piece of circumstantial evidence.
In my view this evidence is plainly admissible against Mr Husain and Mr Sianis.
Notwithstanding the concession by counsel for Husain on the voir dire that the evidence of the holster was relevant, if weakly so, to the case against him, the primary challenge on appeal to its admission was based on the contention that it was irrelevant.
Admissibility of the holster against Husain
Husain’s challenge to the admissibility of the holster against him was based on the proposition that it was ‘entirely irrelevant to any fact in issue and could not be supportive of VI in any way’. This was on the basis that there was ‘no evidence whatsoever’ to connect the holster either to the premises at 501A or to the shooting. In this regard, Husain relied on the following propositions:
·VI said he saw weapons and a single holster on the table at 501A;
·he said the holster was the same holster Musa handed him on 23 November 2012, with a revolver in it;
·he said police seized this holster and the revolver when they searched his place, the day after the holster in the boot of Sianis’s car had been seized by police;
·police denied they had seized a holster from VI, which undermined VI’s credibility;
·there was no evidence of use of holsters at the shooting and no basis for inferring their use;
·there was no evidence of Husain touching or having possession of a holster at any time prior to the shooting;
·there was no evidence of Husain being connected to any pistol at 501A or at Langford St. VI said he saw Husain at 501A with a ‘submachine gun’. Offender 1, said to be Husain on the prosecution case, held a weapon consistent in appearance with a ‘submachine gun’, but there was no independent evidence corroborating VI in this respect;
·it was not possible to date the deposition of the DNA or the gunshot residue;
·there were four contributors to the mixed DNA profile on the holster;
·there was a significant possibility of DNA transference or contamination by reason of the location and handling of the holster; and
·the gunshot residue could not be connected with any particular weapon.
Husain also submitted that other than the firearm found in VI’s possession, no other weapon was identified as having been used in the shooting or was otherwise recovered by police. There was no comparison to be drawn between the holster and a firearm to determine the likelihood of the holster being connected with the shooting. It followed, in Husain’s submission, that the holster was just as likely not to have any connection with the shooting as it was to have a connection. Any inference of connection would be based on nothing more than speculation. The seizure and analysis of the holster could not rationally affect the jury’s assessment of the circumstantial case against Husain.
In assessing this submission, it is necessary to bear in mind that to be admissible as circumstantial evidence, the evidence of the holster had to tend to prove a fact from which the existence of a fact in issue may be inferred.[467] It is not necessary, for example, that it form an indispensable link in a chain between Husain and a firearm proved to have been used at the scene.
[467] Festa v The Queen (2001) 208 CLR 593 at [5] (Gleeson CJ).
The DNA evidence had the capacity to connect Husain to the holster. It did not go further to show how Husain may have been connected to the holster. The possibility of transference was the subject of expert evidence, but that did not necessarily deny a connection between the holster and Husain. In this regard, the trial judge directed the jury:[468]
So, ladies and gentlemen, DNA expressed in this way is a piece of circumstantial evidence, it is circumstantial only and it is to be considered with other evidence, but you are entitled to take into account all of the evidence in deciding whether a particular accused’s DNA was left on an object and, if it was, did the particular accused come into contact with the object? Did the DNA get there by primary, secondary or tertiary transfer? And, even if it did come into contact with the accused, what significance is to be attached to that contact?
[468] Summing Up, pp 50-51.
Later, having addressed further the expert evidence about primary and secondary transfers, the trial judge said:
I remind you of all these possibilities to emphasise that you need to examine very carefully, in each instance, where the DNA came from, the possibilities of how it was transferred and the significance or otherwise of any contact in any event.
Husain was a passenger in the car where the holster was found. That car had been seen at 501A at the time of the shooting. VI said he saw a holster at 501A. The holster was in the car the day after the shooting. The DNA evidence, like all circumstantial evidence, was required to be viewed in the context of the totality of the evidence, not in a piecemeal fashion.
The holster was capable of holding a handgun. The CCTV footage of the shooting shows three handguns. VI’s evidence was that he saw handguns at 501A. The gunshot residue on the holster, associated with .22 ammunition, was consistent with spent projectiles at the crime scene.
These matters distinguish the present case from Driscoll v The Queen,[469] on which Husain relied. In that case, the majority held that evidence of firearms found in the possession of the accused was inadmissible. However, it was established on the evidence that those weapons had not been used in the killing of the deceased, as the murder weapon had been recovered. Unsurprisingly, the Court found that the fact that the accused had a number of weapons not used in the crime was not probative of the fact that he had committed the murder.[470]
[469] (1977) 137 CLR 517.
[470] Driscoll v The Queen (1977) 137 CLR 517 at 532 (Gibbs J).
VI’s evidence that the police seized a gun and holster from him is not consistent with the holster in the car being the holster that VI said he saw on the table at 501A. However, the police denied seizing any holster from VI. It was a matter for the jury how they approached this inconsistency. They were not required to accept or reject VI’s evidence in its entirety.
Similarly, the weight that the jury placed on the evidence of the holster was a matter for the jury.
We reject Husain’s submission that the evidence of the holster was not admissible against him.
Husain also submitted that the evidence of his possession of the holster ‘in the circumstances of the case’ tended to show that he was a person of bad character. This submission was based on ‘how the evidence was led’, to the effect that he had no good reason for possessing the holster. The inference was that he was a person of criminal propensities (to possess without good reason a holster with gunshot residue on it) and for that reason was more likely to have committed or been involved in the shooting.
Husain made this submission in the context of his broader submission that there was no proper basis for the admission of the evidence. Having rejected that submission, it is still necessary to consider whether the evidence of the holster was discreditable conduct evidence. We would accept that this evidence tended to suggest that Husain was in possession of a gun holster bearing gunshot residue for no good reason and, therefore, was discreditable conduct evidence. However, any prejudicial effect occasioned by such a suggestion was, in the circumstances, slight. As the trial judge noted, those circumstances included the various items of discreditable conduct evidence, in particular the evidence of Lienert, relating to the culture and conduct of the Hells Angels, including the acceptance of violence internally and externally to the club. The circumstantial use of the holster evidence, summarised above, clearly outweighed any relatively mild prejudicial effect that the holster may have had. In our view, the trial judge did not err in concluding that the evidence was admissible.
The trial judge’s directions
Given the ultimate disposition of the appeal, it is unnecessary to determine the complaints about the trial judge’s directions in relation to the holster evidence. We note Proposed Ground 4A, however, the effect of which is to complain that the trial judge did not distinguish between the use of the evidence against Husain as compared with Sianis. In this regard, the trial judge said:[471]
The Crown placed this evidence before you in the context of the evidence of [VI] that weapons and a holster were on the table at 501A, and in the context of the CCTV and ballistics evidence the Crown says points strongly to the use of at least one other handgun, that is, other than the revolver, or probably two in the shooting. So the Crown rely upon this as part of the circumstantial evidence tending to support the view that Mr Sianis and Husain were part of the group of nine.
[471] Summing Up, p 284.
Husain submitted that this ‘conflation’ of the use of the evidence against Husain with that against Sianis created a pathway to guilt that was not contended for by the Crown, namely that the holster implicated Husain as being present at the shooting in the same way as it did for Sianis.
While it is not strictly necessary to decide, we would be disinclined to accept this contention. The holster evidence was relevant in the same way against Husain as it was against Sianis. When the jury came to consider the holster in the context of all the evidence, it may be that they would have engaged in different forensic paths, given, for example, that Sianis had a closer connection to the car. However, it is difficult to see that this would have required a specific direction.
Husain complained in his written submissions about several further matters concerning the directions relevant to the holster. It is not apparent that these complaints are supported by any ground of appeal. In any event, given the disposition of the appeal, it is not necessary to address these complaints, even if they could be said to be incorporated in the grounds.
We dismiss Ground 4 of Husain’s appeal.
Issue 29: Admission of the Dymocks bag against Jalleh
This complaint was raised by Jalleh (Ground 3). Montgomery adopted this ground. The ground reads as follows:
3.His Honour Auxiliary Justice Martin erred in admitting evidence of the Applicant’s disposal of the Dymocks bag and its contents [i]n a local neighbourhood waste bin unrelated to his home on the night of the murder.
3.1 None of the items in the bag, or the bag itself, were connected in any way to the events of the day of the murder, [i]ncluding its aftermath.
3.2 Without any such connection, or forensic evidence of use, to admit the evidence as circumstantial evidence of the applicant “having something to hide”, as he did, was more prejudicial than probative.
Part of the prosecution case against Jalleh and Montgomery was that on 21 November 2012 after the shooting, Jalleh and Montgomery travelled in convoy to Kangarilla in a Mazda 2 [redacted] and in a dark coloured sedan. The Mazda 2 was said to have been part of the convoy from 501A to Lords of Ink and then to the crime scene at Langford Street. The trip to Kangarilla was to dispose of the Mazda 2, which was found on fire at Kangarilla at 4:47pm that day.
The only witness who provided any description of those responsible for the destruction of the Mazda 2 described the appearance of the male driver of the dark sedan, driving away from the scene of the fire, as a ‘tallish’ man with white skin, about 30-40 years old. He was wearing a white T-shirt, had a shaved head, and a tattoo on his arm.
Later the same night, police conducted surveillance of Jalleh’s home address in Hyde Park. They observed a male carrying a red bag departing from that address at about 8:55pm. He returned at 9:16pm. At 10:36pm, police found the red bag in a nearby wheelie bin on Thomas St, Unley. The bag was a red Dymocks bag. DNA analysis of the bag and the items within it revealed the following profiles:
·a red Dymocks shopping bag: a mixed DNA profile, originating from four contributors. The inclusionary likelihood ratio was greater than 100 million in favour of Jalleh’s inclusion in the sample (extremely strong support);
·black Adidas shorts: a mixed DNA profile, originating from three contributors. The inclusionary likelihood was greater than 100 million in favour of Jalleh’s inclusion in the sample (extremely strong support);
·a dark blue G-star T-shirt: a mixed DNA profile, originating from three contributors. The inclusionary likelihood ratio was greater than 100 million in favour of Jalleh’s inclusion in the sample (extremely strong support). The inclusionary likelihood ratio was 7900 in favour of Montgomery’s inclusion in the sample (very strong support). If Jalleh was a contributor to the mixed DNA profile, that contribution was best explained by Jalleh being the contributor who had contributed 63 per cent to the mixture. If Montgomery was a contributor to the mixed DNA profile, that contribution was best explained by Montgomery being the contributor who had contributed 14 per cent to the mixture. This would be around 40 cells of DNA.
·white/grey Nike shoes with red piping:
a.tapelift from inner heel and tongue of left shoe: a mixed DNA profile, originating from four contributors. The inclusionary likelihood ratio was greater than 55,000 in favour of Jalleh’s inclusion in the sample (very strong support);
b.tapelift from inner heel and tongue of right shoe: a mixed DNA profile, originating from four contributors. The inclusionary likelihood ratio was greater than 100 million in favour of Jalleh’s inclusion in the sample (extremely strong support).
Jalleh complained about the admission of this evidence on the basis that the prosecution case was that he had disposed of clothing that he must have worn during the afternoon, or when he was involved in the destruction of the Mazda 2. He submitted that the evidence of the clothing in the bin had no direct probative value in the case against him. In this regard, he emphasised that there was no evidence of any such items of clothing at the shooting. As to the destruction of the Mazda 2, the driver of the dark sedan leaving the scene (on the prosecution case, Jalleh) was seen to wear a white T-shirt, not a navy one. The police did not identify Jalleh as the male disposing of the red bag later that night.
Jalleh submitted that in those circumstances, neither the disposal of the clothing, nor of the bag or any of its contents, was related on the prosecution case to any circumstance or event connected with the shooting. As post-offence conduct, it was distinguishable from cases such as R v Loader,[472] where the Court held that post-offence conduct and lies constituted circumstantial evidence of guilt:[473]
In my view, it was appropriate for the trial judge to invite the jury to consider these actions and statements of the appellant as part of the body of evidence from which they were entitled to draw an inference of guilt. They were actions clearly intended by the appellant to distance himself from the disappearance of the two men. The reason why he wished to distance himself in this way was a matter for the jury. However, it was open for the jury to infer that he did so because of his involvement in the murders. To the extent that lies were involved, their relevance was not restricted to mere credibility; they could be used as part of the circumstantial case to establish positive evidence of guilt.
[472] [2004] SASC 234.
[473] R v Loader [2004] SASC 234 at [31] (Duggan J, Besanko and Anderson JJ agreeing).
The respondent on the appeal accorded a different relevance to this evidence. The respondent accepted that there was no evidence of the contents of the bag in the crime scene footage or any evidence linking those contents to the torching of the Mazda 2. The respondent submitted, rather, that the contents of the bag were evidence of a connection between Jalleh and Montgomery that existed on the day of the murder and that the disposal of the bag constituted an effort to conceal that connection. In its closing address at trial, the prosecution submitted as follows:
The DNA profiles that were obtained provide support for the proposition that there were items in that bag that had been in contact with both Mr Jalleh and Mr Montgomery that day, they provide a link not just between Mr Jalleh and the bag but a link also between Mr Jalleh and Mr Montgomery which you can then layer over that phone data evidence that I spoke of a moment ago.
A DNA profile taken from around the collar of the shirt and the shoulders, an analysis of that provided very strong support for the hypothesis that Mr Montgomery was a contributor to that profile. Now we know that DNA can’t be dated, we don’t know how the DNA got deposited there but given that it was found in a bin, the shirt is found in a bin that night, you might conclude that someone was keen to get rid of it, they might be keen to get rid of it because they had been in contact with Mr Montgomery that day. But the evidence has relevance for another purpose, because it does rather beg the question why was Mr Jalleh throwing away those clothes? We heard some evidence from Dr Taylor that on examination the clothes weren’t in bad condition, they’re not exactly clothes you would relegate to your painting clothes, members of the jury, that you would only wear for gardening or painting so it begs the question why they were being thrown away.
Now it’s accepted, I don’t argue otherwise, you cannot see any of those clothes in the footage of the offenders at Langford Street but you wouldn’t necessarily expect to either because they all had hoodies and long pants on. They all had something underneath those items. The hoodies had to go. We know that at least one or probably more were burnt in that Mazda down at Kangarilla, so the killers had to get rid of their clothes because we know there’s this thing called gunshot residue, for example, the offenders would know that and we know that there’s this thing called DNA, the offenders would know that too. So whoever the killers were for the moment, whoever, they had to get rid of their clothes. And of course those that were involved in the destruction of the Mazda you might think they would be keen to get rid of any items of clothing when they carried the task out as well, so there’s a continual need to get rid of items of clothing, to jettison clothing. There is no evidence at all, let me be plain, no evidence at all, that links the items in that bag to Kangarilla. But nor need there be.
On the prosecution case Mr Jalleh was engaging in very furtive clandestine conduct on that evening.
(Emphasis added)
The prosecution also relied on what they submitted was a surreptitious route taken by, on their case, Jalleh in disposing of the Dymocks bag that night. The prosecution invited the inference that Jalleh was aiming to avoid being seen and wanted to distance himself from those clothes.
The evidence of the Dymocks bag and the circumstances surrounding its disposal (including the departure of the unidentified male from Jalleh’s residence) was circumstantial evidence of Jalleh attempting to distance himself from any connection with Montgomery. This evidence was ultimately to be viewed in conjunction with various other pieces of circumstantial evidence of, on the prosecution case, Jalleh attempting to distance himself from the murder. This included evidence that, on the prosecution case, showed Jalleh attempting to create a false alibi through his employer, City Discount Tyres, by a false entry in his time book. It also included evidence that Jalleh had changed his appearance.
Neither could it be said that the evidence was more prejudicial than probative. If it is taken, as Jalleh submitted on appeal, that the evidence invited the inference that Jalleh ‘had something to hide’, that is a descriptive phrase of the probative value of the evidence identified above. The fact that a person disposed of a bag of clothing is not, of itself, discreditable conduct. It is difficult to see that the evidence carries some prejudice separate from its probative value. In Dennerley v The Queen,[474] this Court observed of evidence of washing clothes following a shooting:[475]
In the present case, the act of washing clothes in the circumstances presented by the evidence might be thought to be unusual, and more so by the inclusion of gloves in the wash. However, washing is generally not understood to be a discreditable activity. It did not carry the same danger of prejudiced inference as is understood to attach to conduct such as lies or flight.
[474] [2022] SASCA 92.
[475] Dennerley v The Queen [2022] SASCA 92 at [30].
The Court went on to observe, referring to R v Adamson,[476] that there was no requirement for an Edwards-style direction[477] in respect of such evidence.
[476] R v Adamson [2018] SASCFC 114 at [111] (Doyle J, Vanstone and Lovell JJ agreeing).
[477] Edwards v The Queen (1993) 178 CLR 193.
The evidence of the Dymocks bag and its contents was properly admitted. We are not satisfied that it had any prejudicial effect that outweighed its probative value. We dismiss Ground 3 of Jalleh’s appeal.
Issue 30: Admission of evidence of photographs and evidence of Dr Sorrell
This complaint was raised by Jalleh (Ground 4). The ground reads as follows:
4.His Honour Auxiliary Justice Martin erred in admitting a police photo taken of the Applicant on an occasion when he had been arrested prior to the date of the murder:
4.1 the photograph was taken after the police officer conducting a lawfully commenced forensic procedure, had terminated the procedure.
4.2 the photograph was taken after the termination of the procedure but before the Applicant was charged, such that the Applicant was being improperly detained while being photographed.
4.3 for the purpose of taking the photograph, police required the Applicant to stand down a stairwell below the photographer to achieve a reconstruction of what police would be captured by a CCTV camera, and as such, improperly transgressed police power to photograph for identification purposes subsequent to charge.
The photograph the subject of this challenge was taken on 3 June 2011, following the arrest of Jalleh that day. He was charged in relation to his suspected involvement with the City Nightclub incident. The events the subject of the charge were alleged to have occurred on 29 May 2011.
The arresting officer was Senior Constable Randall (‘Randall’). The trial judge found Randall to be ‘an impressive and patently honest and frank witness’. He accepted that Randall gave truthful and, within the constraints of her memory, reliable evidence. He found that at the time of the arrest, Randall was relatively inexperienced in procedural respects. She had never worked in the City Watch House. The following narrative is taken from the trial judge’s findings.
Randall arrested Jalleh at his home at about 6:20am on 3 June 2011. She advised Jalleh of his rights. Jalleh indicated he did not wish to answer questions. This was recorded on video. At 6:25am, Randall advised Jalleh she was suspending the videorecording and would reactivate it if Jalleh wished to answer questions. She conveyed Jalleh to the City Watch House and placed him in a holding cell.
At about 7:04am, Randall activated the video and asked Jalleh if he would participate in a line-up. Jalleh declined. At about 7:10am, a buccal swab was taken. The video recording continued throughout this procedure. Randall then advised Jalleh that she intended to apply for and conduct a forensic procedure under the Criminal Law (Forensic Procedures) Act 2007 (SA) (‘CLFPA’), being to conduct a medical examination, as well as to take various types of photographs of him, including photographs of him at a 45-degree angle downwards (as he would be viewed from a surveillance camera).
Jalleh indicated he would like a lawyer to be present during the application for the forensic procedure. He made a phone call to his mother, requesting a telephone number. His mother gave him the details of a lawyer, Mr Richardson.
Jalleh telephoned Mr Richardson and left a voice message. He then indicated he would like to go ahead with the hearing in the absence of a lawyer.
At about 8:18am, Randall commenced the application for a forensic procedure to Detective Chief Inspecter Gerlach (‘Gerlach’). She stated to Gerlach that Jalleh had been depicted on closed-circuit security footage as taking part in an aggravated riot in the city, during which weapons had been used. She sought a medical examination and ‘overall photographs of the accused, front, both sides, back, hands, 45-degree downward photographs depicting accused’s image as if it were from a surveillance camera’. She also sought photographs and documentation of any injuries and tattoos. She explained the basis on which she sought to take the photographs.
At about 8:20am, Jalleh asked to make a phone call to Mr Richardson again. Mr Richardson answered the call and spoke with Jalleh. Randall’s understanding was that as a result of that phone call, Mr Richardson would not be attending but had provided Jalleh with advice.
The forensic procedure hearing continued from 8:25-8:27am. Jalleh then said he did not understand the application and wanted his lawyer present. The hearing was suspended at 8:27am and Mr Richardson was contacted. Jalleh was placed in the holding cells.
While police were waiting for Mr Richardson to arrive, Randall received advice from other police officers that they had located weapons and pills at Jalleh’s home. At about 8:30am, Randall reactivated the videorecording and spoke to Jalleh about those items and advised that he would be charged in respect of those matters.
Mr Richardson arrived at about 8:57am. The forensic procedure hearing recommenced. Mr Richardson argued that the overhead photographs should not be taken under the authority of a forensic procedure. In consequence, Gerlach removed that component of the application from the order. At about 9:22am, Gerlach granted the balance of the application.
At about 9:20am, Randall made a note that the 45-degree angle photographs were taken out, ‘but able to be taken under S81 SOA’. ‘SOA’ was a reference to the Summary Offences Act. Randall’s evidence was that Mr Richardson had expressed the view that the taking of the photographs under s 81 of the Summary Offences Act was the more appropriate procedure.
The forensic procedure was completed at 9:40am. At 9:50am, a police officer took the photographs the subject of this ground of appeal in the stairwell of the watch house. The notes record that the photographs were taken at the direction and in the presence of Randall.
Jalleh was charged at 10:12am. It is common ground that prior to charging Jalleh, police had no power to take the photographs under s 81 of the Summary Offences Act. Sub-sections 81(4) and (4a) of that Act provide:
(4)Where a person is in lawful custody on a charge of committing an offence, a police officer may, if the officer believes on reasonable grounds that it is necessary to do so for the purpose of identifying that person or identifying that person as the person who committed an offence—
(a) take, or cause to be taken, photographs of that person and prints of the hands, fingers, feet or toes of that person, and may use, or cause to be used, such reasonable force as is necessary for that purpose;
(c) make a recording of the voice of that person;
(d) request that person to supply a sample of his or her handwriting.
(4a)A police officer may not exercise a power under subsection (4) for the purpose of identifying a person in lawful custody as the person who committed an offence unless—
(a) the person has been charged with the offence; or
(b) the police officer is acting upon the authorisation of a magistrate given under this section.
Had the photographs been taken after Jalleh was charged, 22 minutes later, they would have been lawfully taken. The trial judge accepted Randall’s evidence that she believed police possessed the necessary authority to take the photographs under s 81. The trial judge also found that it appeared ‘from her notes and memory of Mr Richardson’s involvement that she was not alone in holding this mistaken belief’.
The trial judge made findings to the following effect:
·Randall had followed correct procedures throughout the morning until the photographs were taken;
·Randall and others believed they were authorised by s 81 to take the photographs. The trial judge rejected a submission that this was an exercise in avoiding delay, or that in some other way it amounted to a cynical exercise in pursuing the objective of obtaining the photographs as evidence. He found that it was an honest mistake, not a deliberate disregard of the law;
·at the time the photographs were taken, Jalleh was in custody and Randall had decided to charge him;
·Jalleh was charged 22 minutes after the photographs were taken. ‘In practical terms, police jumped the gun by 22 minutes’;
·the taking of the photographs 22 minutes early did not cause any disadvantage or unfairness to Jalleh. It did not affect the probative value or reliability of the evidence.
The trial judge had regard to Bunning v Cross[478] and noted the importance of the legislative scheme of protections in the Summary Offences Act, including s 81. He noted that it was the duty of police to be aware of and comply with those provisions. Having found that this was not a wilful or deliberate disregard of police obligations, that Randall was not experienced in the procedures, had endeavoured to comply with her obligations throughout the morning and had made an honest mistake, he concluded that this was not a case warranting curial disapproval in the form of excluding the evidence. In reaching this conclusion he noted that the photographs were probative, reliable and important in the Crown case.
[478] (1978) 141 CLR 54.
The trial judge rejected a submission that he should decline to admit the evidence because an earlier warning might have been operative at the relevant time, as police were entitled to insist on taking the photographs only 20 minutes later. He also rejected a suggestion that taking the photographs amounted to a re‑enactment or forcing the accused to participate in the investigation.[479]
[479] Cf Mullins v Lillyman (2007) 70 NSWLR 26.
On the appeal, senior counsel for Jalleh submitted in writing that the proper administration of justice should not allow evidence obtained in breach of a statutory authority in respect of one alleged offence to be employed in the prosecution of an entirely different offence. Senior counsel did not explain the significance of the fact that the photographs were taken in the investigation of a different offence.
In oral submissions, senior counsel submitted:
We say that this was – this photograph was obtained in circumstances of illegality. It could not be said that it had been obtained by an honest misunderstanding of the obligations under s 81 because it had been – because the arresting officer had recognised the need to get a forensic procedure authorisation. Having tried to get that and having had it refused, contrary to that refusal, the procedure went ahead as if it had been approved.
This is not an accurate statement of the factual history of the matter as found by the trial judge. No submission was made explaining why the trial judge’s findings of fact as to what had transpired leading to the taking of the photographs, including the apparent acceptance by all concerned that the procedure under s 81 was available and the honesty of Randall’s mistake, should be overturned. Senior counsel went on to submit that this was not a case of mistaken understanding of s 81(4), but a blatant breach of obligations. Again, this submission was not supported by any explanation of why this Court should not act on the trial judge’s findings of fact.
The submissions made in support of this ground do not identify any material consideration to which the trial judge could be said to have failed to have regard. On the basis that the principles of appellate restraint apply in accordance with House v The King,[480] no such failure is apparent. In any event, even on the basis that the proper standard of review is the correctness standard,[481] this is manifestly a case where the trial judge was correct in declining to exclude the evidence of the photograph, for the reasons that his Honour gave.
[480] (1936) 55 CLR 499 at 504; see further R v Rockford (2015) 122 SASR 391 at [37]-[47] (Stanley J, Kourakis CJ and Sulan J agreeing).
[481] See Young v The King [2024] SASCA 47 at [141] (Doyle JA).
Contrary to Jalleh’s submissions on appeal, this was not a reconstruction of the crime scene. Neither did the police purport to take the photographs under the CLFPA. Police took the photographs under the mistaken view that they were authorised to do so by s 81(4). Randall’s mistake was honest and occurred in circumstances where she had been scrupulously adhering to her obligations throughout the morning. Jalleh was charged 22 minutes later. He suffered no forensic disadvantage. The photographs are reliable evidence. They were important to the prosecution case. This is not a case where it cannot be known how compliance (by not taking the photographs for another 22 minutes, after the charge was laid) would have changed the forensic landscape.[482]
[482] Cf Thomas v The King [2024] SASCA 51 at [54].
We dismiss Ground 4 of Jalleh’s appeal.
Conclusion on the appeal
We grant leave to appeal. We set aside the convictions of each appellant and order that in each case the matter be remitted for retrial.
75
0