Director of Public Prosecutions v Giacominato

[2019] VCC 1723

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00845

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY GIACOMINATO

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2019, 2 October 2019, 3 October 2019 & 16 October 2019
DATE OF RULING:	18 October 2019
CASE MAY BE CITED AS:	DPP v Giacominato
MEDIUM NEUTRAL CITATION:	[2019] VCC 1723

EX TEMPORE REASONS FOR RULING
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnet
For the Accused	Mr D. Kantor

1R U L I N G

2HIS HONOUR:  On 1 October 2019 the accused, Anthony Giacominato, pleaded guilty before me to one charge of conduct endangering life and one charge of possess a drug of dependence.  These offences are alleged to have occurred on 6 March and 11 March 2018.

3The matter before me concerns the charge relating to the conduct endangering life where issue was taken by Mr Kantor of counsel on behalf of Mr Giacominato on whether the prosecution can prove beyond reasonable doubt that it was he who shot the firearm the subject of that Charge 1.

4In order to better understand this factual dispute it will be necessary for me to examine at some length the substance of the prosecution case and the evidence which the prosecution rely upon in pointing to Mr Giacominato as being the person who fired the gun.

5At the time of the offending Mr Giacominato was 42 years of age and lived at 11 Prince of Wales Avenue, Mill Park, a premises which had some considerable significance in this course of events leading up to and after the incident in question.

6Other parties to the events are Ahad Mohamad and Anthony Yacoub and Luke Zidarich.  The complainant was Jordan Bisignano who at the time of the offending was 21 years of age.  He was not in any way known to or associated with the accused or any of the other persons involved in the events of the night or the early morning of the night of 6 March 2018.

7At about 2.49 am Mr Giacominato riding a Suzuki motorcycle attended at the Mernda carwash.  He was met by an associate only known as Mick who was washing his Ford Territory sedan.  Shortly thereafter at 3.06 am Ahad Mohamad attended driving his grey Ford XR6 sedan.

8At 3.23 am dark coloured Hyundai sedan also attended at the location and began circling the wash bays.  Mr Mohamad left the carwash and about the same time so too did the Hyundai vehicle.  Mr Mohamad travelled in a southerly direction along Plenty Road, Mernda, when three vehicles began to follow him. These vehicles began pursuing him and attempting to box him in.  At the conclusion of the chase Mr Mohamad was forced to drive his Ford XR6 sedan over the median strip near the intersection of Plenty Road and McDonalds Road in South Morang to escape the pursuing vehicles.

9Shortly after that at 3.33 am Mr Giacominato left the carwash on his motorcycle followed by Mick who was driving his Ford Territory sedan.  At his premises at
111 Prince of Wales Avenue there was CCTV which captured the front entry area to those premises. Mr Mohamad is seen arriving at those premises at about 3.40 am.  A minute later Mr Giacominato also arrived at the premises on his motorcycle.  Anthony Yacoub was already present as were a number of other unidentified associates.

10The group, including the accused, and Mr Yacoub, discussed with
Mr Mohamad what had happened.  That discussion and that video I have watched.  An audio transcript of that discussion became Exhibit 6 on this contested plea. I do not intend to go through in detail what was said by the various participants save that it is plain that Mr Yacoub took a very active part in these discussions and said a number of things that Mr Kantor, on behalf of the accused, particularly relied upon as demonstrating his involvement in what was later to occur.

11Indeed it is Mr Yacoub who makes the suggestion that the group of them should obtain a gun and use it in order to seek retribution against those who had tried to run Mr Mohamad off the road some little time earlier.

12Having in broad terms set out the events the conversation continued, Yacoub saying, 'Arnie why have you got your lights, them on.'  Mohamad:  'I took it over, the fucken, middle of fucken, um Plenty Road.'  Yacoub:  'Why?'  Mohamad:  'Cause these cunts blocked me in.' Yacoub:  'Are you serious' Mohamad:  'Word' Yacoub:  'What's that hanging at the bottom?’ ……… ‘What the fuck, his car blocked in.’ Mohamad:  'Right outside fucking um ….. right near the cop shop.'  Yacoub:  'Let's go find these cunts bro.’ Mohamad:  'Let's go for a drive. hey I lost them near the carwash in South Morang, yeah.' An unknown person then says, 'Let's go to where they got you.'  Mohamad:  'Did you see a white four wheel drive hanging around, Let's go, let's go for a drive, c’mon.'  Yacoub:  'Arnie got chased, hey wait wait, get the, the thing…………  We will go find these cunts right now bro, and we will blast them.' Mohamad:  'What do you mean blast them, we will take their fucking cars off the road'.  Yacoub:  'Like this pfft (makes a gunshot noise)……. Pfft pfft (making two further gunshot noises)’.  Mohamad:  'The, the only visible fucking damage is probably, just, a spot, the front bar and has just popped out……. But I skipping over the middle of the fucken Plenty road so I did well…… nah nah fuck it we will go now bro.'  Giacominato:  'hey where you going, to have a look?'  Mohamad:  'Yeah.'  Giacominato:  'Ring me.'

13And so it was that Mr Mohamad left first in order to see if he could find any of these vehicles that had chased him with the idea being that should he locate any of the vehicles he should ring the accused man, Mr Giacominato.

14The reference in the discussion by Mr Yacoub, 'get the, the thing', is a reference to Mr Giacominato's cut down 22 rifle that was in the house at the time.  It is plain from this conversation that Mr Yacoub took the matters to a higher degree than simply trying to isolate these men to one where these other vehicles should be identified and a gun actually used in retribution.

15A little later Mr Yacoub's state of mind is further illustrated where he said, Yacoub: 'Hey call these cunts, let's go, call these cunts tell em bro.'  Giacominato:  'how many cars, four cars?'.  Yacoub:  'What cars were they?'  Giacominato:  'White little car, grey little car, Ford falcon.' Yacoub:  'That's them bro, hey let's get the thing and let's go find these dogs.'  A female then says, 'Whereabouts?'  Yacoub:  'Whereabouts, whereabouts was he?'  Giacominato:  'Whereabouts were you, yeah'  Yacoub makes phone call:  'Hey come back, come back, somebody else just got chased……. Come back.'

16And so it is that later Mr Giacominato goes into the premises and retrieves the cut down 22 rifle which was wrapped in some cloth and is seen taking it from the front door of the premises to the front area of his motor vehicle.

17Later Mr Giacominato is the driver of that vehicle with Mr Yacoub in the front passenger seat and Luke Zidarich in the back seat.  Before going into any further detail of the events as they unfolded in Mernda on Sumner Drive, Mernda, the video of Mr Yacoub and Mr Giacominato demonstrates something else, that being that Mr Yacoub is a very big man standing 6 foot 2 inches tall and at the time was 140 kilograms. He is startlingly distinctive in the videos because of his sheer size. 
Mr Giacominato, on the other hand, altogether has a different appearance.  Detective Senior Constable Mullenger describes Mr Giacominato upon arrest that same month as being skinny.

18Mr Giacominato has plainly changed in his appearance to present date, putting on a not inconsiderable amount of weight. The custody description of
Mr Giacominato on 8 March 2018 was 168 centimetres or about 5 foot 6 inches, medium build, and on a later date upon his rearrest the custody description on 15 March 2018 was 173 centimetres, medium build. On both occasions the custody description included a description of fair complexion.  Exhibit 2 is the arrest image of Mr Giacominato on that first occasion which was a couple of days after the events of 6 March 2018. It is plain that he is of fair description.  His face is lean compared to his current appearance.  He had close cropped hair and facial hair and a beard that looks a couple of days old.

19Mr Yacoub on the other hand is pictured upon his arrest on 13 March 2018 in Exhibit 3.  He is plainly a man with facial features of very different ilk to that of Mr Giacominato.  In that photograph taken on 13 March 2018 of Mr Yacoub has him wearing a hoodie, a similar kind to the hoodie that he is wearing and shown on the CCTV footage at the Prince of Wales address.

20I do not suggest that it is the same but similar, the significance of which I will come to in due course.  Mr Giacominato driving his vehicle continues to be in contact with Mr Mohamad.  As I have mentioned, Mr Giacominato is seen on that CCTV entering the driver's seat of his Ford G6 sedan. So the three travel on in his vehicle in the seating I have already described. 

21Meanwhile Mr Mohamad had come upon another vehicle which turned out to be a vehicle driven by the victim, Mr Bisignano.  He followed Mr Bisignano's vehicle.  Mr Bisignano realised that he was being followed and makes a number of evasive movements, including executing a U-turn which Mr Mohamad in his vehicle replicated.

22At this point I pick up the description of the events by Mr Bisignano in his statement which became Exhibit 17 on this hearing:

'As I reached Everard, I could see the car was still following me.  I then saw a second car.  It was parked in Sumner Dr, maybe 10-20 metres from Mernda Village Drive, and it had its lights on.  I could see that it was a dark sedan that I know to be a Ford FG Falcon. I know what an FG Ford looks like because my dad has the exact same car.  I didn't really think too much at this point as it was the first time I had seen this car. 

As I got closer to it, I saw in my rear view mirror the car behind me flashed its headlights. 

When I saw the car behind me flash its lights, I could see something happening with the parked car ahead of me.

I could see a male leaning out of the driver's window.  I had my windows up but he yelled so loud I could hear him.  He yelled something along the lines of "Get out of the car!" or "Stop the car!" 

The male looked Caucasian, possibly bald in his late 20s, early 30s and wearing a light grey jumper.  I do not know if there was anybody else in the car.

I could see that he was holding something in his hands.  It looked like he was holding a rifle of some sort as he was holding it with both hands. 

It didn't look quite like a proper gun; it could have been possibly a BB gun.

As I had passed the parked car, I heard a bang; I knew it was something hitting my car.'

23He later discovered what looked to him like a bullet hole in the panel of the driver's side of the car just in front of the rear wheel at the bottom of the car on the sill area.  Before I further examine the evidence in relation to this incident I turn to the photographs that have been tendered of the area where this incident occurred.

24At the time of the incident Mr Giacominato's car was parked on the western side of Sumner Drive which broadly runs north-south.  Sumner Drive, near Everard Street which is slightly further north, has a discretely constructed parking area for one, perhaps two, vehicles, as seen in the second photograph of Exhibit 14. That second photographs also shows the bridge which is further north on Sumner Drive past Everard Road.  Exhibit 14, being aerial shots of that area.  Exhibit 4, on the other hand, has been taken on the ground.  Photograph 5 shows that parking area with in the near distance the breach that is past Everard Road.

25Thus, there is a clear picture of the position of Mr Giacominato's vehicle in that parking area, looking north, with the vehicle driven by Mr Bisingano coming towards the position where the photographer would be in Photograph No.5 on Exhibit 4.

26During the course of this hearing, Mr Bisignano gave evidence before me on 1 October 2019.  Mr Kantor, on behalf of the accused made it plain that he did not in any way dispute the evidence of Mr Bisignano and his description of the event.  Indeed he described Mr Bisignano as a credible and reliable witness.  That concession was plainly properly made.

27Mr Bisignano elaborated upon what he observed during the course of his evidence, saying at p.41, line 2.  'That car was just parked, all right.  And the driver - and the driver’s, you said, from about waist down hanging out the window; did you - - -' I corrected: ‘Waist up.’  Mr Pirrie:  'Sorry, waist up. Sorry waist up, hanging out the window.  What was your window? Was your window up or down?'  Answer:  'My windows were up the whole time.'  Question:  'Could you hear what the person hanging out the window yelled?'  Answer:  'ah, he was screaming something along the lines of it was either, "Get out of the car" or "Stop the car".

28Shortly thereafter Mr Pirrie asked, 'And how far from his car, that is the car with the man hanging out the window, how far from that car were you when you heard this?'  Answer:  'Maybe a car length'.  Question:  'Are you able to – are you able to describe how the man that was hanging out the car window, out of the driver's window, looked?'  Answer:  'Ah - - -'.  Question:  'What did he appear like, what was his appearance?'  Answer:  'Older in his age, maybe, ah, late 20's to early 30's.'  Question:  'Yes?'  Answer:  'Wearing a grey jumper'.  Question:  'Grey comes in many shades, what colour grey? Have you got - - -?'  Answer:  'Oh, like a lighter grey jumper'.  Question:  'What about his hair?  Were you able to identify his hair?'  Answer:  'I didn't, ah, notice any hair'.  Question:  'By that are you saying you didn't actually see any hair or did he not have any hair or what was the situation?'  Answer:  'From what I can remember I do not, ah - I had never seen any hair'.

29Later in cross-examination at p.49, Mr Kantor asked Mr Bisignano the following questions, line 5, Question:  'When you saw the car behind you flash its lights, you could see something happening with the parked car ahead of you, is that right?'  Answer:  'Yep'.  Question:  'And that's what you mentioned or gave evidence about earlier.  You could see a male leaning out of the driver's window, correct?'  Answer:  'Correct'.  Question:  'So somebody who was a bit larger than yourself, correct?'  Answer:  'Yes'.  Question:  'And on a previous occasion, you gave sworn evidence that that male appeared to be bulky, correct?'  Answer:  'Yes'.  Question:  'Bulkier than yourself, is that right?'  Answer:  'Yep'. 

30Earlier in evidence-in-chief, Mr Bisignano had given this evidence at p.46, line 21.  Question:  'Are you able to give any idea as to the weight of the man?  Thin, fat, medium, whatever?'  Answer:  'Um, he was a medium sized with a bulky build'.  That was a question from myself.  Mr Pirrie, 'What do you mean by bulky build?  Medium sized bulky build?'  Answer:  ‘Um, like not - - -'.  Question:  'How would you describe yourself for example?'  Answer:  'Like myself?'  Question:  'Compared to you, what was he like compared to you?'  Answer:  'Well I would describe myself as average. Um, and he was a little bit fitter than me'. Question from myself:  'How tall are you?'  Answer:  ‘I'm six two and a half'.  Question:  'And your weight now?'  Answer: '120'. Over the page at p.47, Mr Pirrie asks, 'Are you able to give an estimate of the size of this man?'  Answer:  'I'm not sure, sorry'.  Question:  'Yes. Are you able to say whether he was very fat or - - -' I asked the question: 'Very thin or something in between?'  Answer:  'Just something in between'.

31Thus on Mr Bisignano's evidence, the description of the man hanging out the driver's side window of Mr Giacominato's car was a large size, similar in size to Mr Yacoub but something less than 120 kilos in weight.  This is the second major point that Mr Kantor seeks to rely upon in suggesting the shooter was indeed not his client, but rather Mr Yacoub. 

32Further, Mr Kantor relied upon the fact that Mr Giacominato at all points in time was wearing a distinctive hoodie jacket with stripes down the side of the jacket.  Contrasting that with questions at p.50 in cross-examination, line 9. Question from Mr Kantor:  'Now, this person who was wearing a light grey jumper, he wasn't wearing a black jacket, was he?'  Answer:  'No'. 

33This, as I have referred to, is in contrast to the informant's description at p.125 of the hearing transcript who described Mr Giacominato, as I have already adverted to as "quite skinny at the time of his arrest" and so there are differences in size, bulk and in apparel being worn by the person who shot the firearm. 

34It is unsurprising that in the period of some two to three seconds, where
Mr Bisignano had an opportunity to see the person leaning out of the driver's side window, errors would occur.  Having made his statement that same day, shortly thereafter, a composite face image was prepared, with the assistance of a police artist over the telephone.  This face image as I have indicated, became Exhibit 1.

35Of moment to the prosecution is the fact that the description of the light grey coloured jumper has an additional and not unimportant aspect to it.  That face image shows the alleged offender to be wearing a jumper with a crew neck is plain from the video images that the premises, both before and after this incident, and also CCTV footage of Mr Giacominato when he stopped at a 7-Eleven, that he was indeed wearing a crew neck jumper underneath his black jacket.  This is in stark contrast to the hoody that Mr Yacoub was wearing, which to my mind is similar to the hoodie, though not necessarily the same hoody, that he was photographed wearing upon his arrest on 13 March 2018, Exhibit 3.

36It was put by Mr Regan that when one looks to the face image and contrasts it with the arrest image of Mr Giacominato and Mr Yacoub, that the face image more closely resembles Mr Giacominato.  There may be some small force to this submission but it really does not advance the matter in my view in any material way.

37The description that the offender was possibly bald basically fits with the descriptions of either Mr Giacominato, a photograph image of Mr Giacominato, Exhibit 2 and Mr Yacoub, Exhibit 3.  The age, late 20s, early 30s of the offender, may also more accurately describe Mr Giacominato as he then was, who in that Exhibit 2, looks young for his age, whereas today he looks his age. The description that the offender was Caucasian matches both Mr Giacominato and Mr Yacoub. 

38A further factor that potentially implicates Mr Giacominato is that gunshot residue was found on his jacket, it being explained by Mr Giacominato in his second record of interview that it could well have been because he'd earlier discharged the firearm on a separate occasion.

39Nonetheless there is a consistency in the fact that there is gunshot residue on his jacket, consistent with the firing of the rifle as described by the complainant.

40There are, as Mr Kantor has relied upon, clear differences in terms of the size as described by the victim of the shooter and the skinny appearance of Mr Giacominato at that particular time.

41Any description in circumstances where the person making the observation has but a brief opportunity to view someone they have never seen before must of course be approached with caution.  Without more, it could not be said that Mr Giacominato was the person who shot the firearm.

42It is therefore to other matters that I must turn in order to establish whether or not the prosecution has indeed proven beyond reasonable doubt that it was
Mr Giacominato as opposed to anybody else, Mr Yacoub or Mr Zidarich, firing the rifle.

43Before turning to a further more detailed examination of that evidence, it is useful to visit the first and second records of interview of Mr Giacominato.  In the first record of interview, which became Exhibit 15, conducted on 8 March 2018, Mr Giacominato maintained that he had nothing whatsoever to do with this incident, but that he had heard details of it.  However in the interim period between that interview and his second interview on 15 March 2018, the police investigation had been a busy one, obtaining CCTV footage of both the 7-Eleven store and at Mr Giacominato's premises.

44Mr Giacominato, during the course of that second record of interview, changed his account to being the driver of the vehicle from first to last during the course of this incident, consistent with the CCTV footage at his premises at Prince of Wales Drive, Mill Park and also at the 7-Eleven store. In a very lengthy series of answers he set out his account of his involvement.  It is sufficient for me to read his answer to question 63.  It is an answer which goes for some six or so pages.

'All right, O.K. So, yeah, at Mernda car wash, at the service station car wash there was my landlord. I met my landlord there and I met a friend of mine there. They got - and then he left and that's – I got a phone call. That's when he got chased. So - now, I was on a bike so I didn't get no other phone calls until I got home. When I got home that's where he - where I met him. He's got some other people with him as well obviously to meet at my house. While I was just talking to him about, you know, what happened and why he got chased and so forth there was some messages on my phone. As my landlord left the service station heading down to - to my place he must - he also got chased by these same people that chased the first car, because obviously he got away. He lost them near South Morang pub somewhere. And they've done a U-turn back up Plenty Road going - heading – heading towards Plenty Road back to the service station where they must have seen me come down on the motorbike, and my landlord done a U-turn and tried - they've pulled him over. He thought it was the police so he pulled over, and they've had not an - an alterate - no, alteration. He's tried to get away. He's drove straight down to Mill Park Police Station on Centenary Drive. Obviously they've seen him drive to the police station so they've taken off. At this stage I was at home talking to Arnie and some other boys that were at the house, and I've seen my phone and I've seen some messages off my landlord telling me what happened with him, and thought, "Well," you know, "what's going on?" And then, yeah, my friend who got chased wanted to go. Obviously he's had - he's got some more people there, his - his mates and that, so they wanted to go looking for the people that chased him. Yeah. So there was something that was - that was left at my house prior - prior to this which was a firearm. It was - it was left there due to someone - it was - I don't even know how it came about that someone was selling it to somebody else and didn't make it on time. The other guy had to leave and he left it there, and that was two weeks prior to this incident, two and a half weeks maybe, max, prior to this incident. Some of those people knew that it was there. They've asked me obviously to grab it 'cause they want to have - they wanted to go and find whoever was chasing our friend. I was hesitant at times but it's not mine and the person who wanted to buy it was - was there and I - I thought it was a good opportunity just - hopefully that, you know, he would take it and it's out of my hands and that's it. Now, one - one car's taken off. He's with some people in the car to go and look for these – for these four cars that were supposedly chasing him. They wanted to use my car but I was getting sick and tired of people just taking my car. There's a few people that live at the house and my car gets used by - you know, by a lot of people - by a few people that live there, and while I'm sleeping they'll take the keys out of my pocket and I was just over it so I said to 'em I'll drive. I - I grabbed the firearm that they wanted me to take up in the driver's seat, and I started driving. I drove away from the - where the incident was hoping they - I could throw off a little bit and take the long way. They went straight-up towards Whittlesea way. I went towards Bundoora way, Mill Park, hoping, like I said, just to - woops, just to throw off a little bit. I've got a phone call. Apparently they've - they – they found one - one of the cars that was involved in the - in the chase or - or so forth. Now, apparently the person who got chased had a firearm pulled on him. So apparently the landlord - my landlord also had a firearm pulled on him and a fire - a shot fired, you know, aimed at the top of his head. I'm not quite sure. I wasn't - I wasn't there. So that was obviously brought as a pre-caution measure. I got a phone call. They were - they - they - they'd seen the car so they wanted me to meet up with 'em, and then when I got there - well, on the way – on the way there the firearm was getting, you know, looked at by - by the people in the car, a couple of mates. As - as - I didn't actually think there was - it was even - it was even loaded or there was actually ammunition for it, but there - I think there was one - one round for it or in it. They - as we drove to Mernda - no, I'm just trying to think of the area. I can't - I can't think of it now. But as we got into Mernda we were on the phone to - to the other car that was following - that was following. And then they were coming - as we were driving up the street there was a white car coming towards us, which is - apparently is a car that was chasing my - my friend at the start. I'm not quite sure if it was. The other Ford was behind it that was chasing - that was chasing him. I've sort of, like, gone slow, probably walking speed. I could see 'em in the distance as they're coming down. As they were coming towards me 'cause it was – it looked like they were - they were coming head-on towards me but, you know, they were being chased by the other cars. So as they were coming towards me I hear my friend next to me say - scream out, "Pull over, pull over," telling the - the white car to pull over. As the - it's - as it's coming past me I've - I'm trying to stay close to the gutter. I hear a bang. I look around and there was a - a shot - you know, a round discharged so, you know, "What the fuck?" like - and then a person, a friend – a associate really, not a friend, that was in the back said, "Look, relax. You know, relax, relax. I was just - it was just a warning shot down to the ground. I was trying to shoot the wheel out," or something like that. "Are you cunts fuckin' normal or what?" I've - I've pulled over. That - the – my friend who was chasing this white car also pulled over. He goes, you know - you know, "Well, you know, keep - let's keep chasing him. Just keep chasing him." I said, "No." I said, you know, "Fuckin' ridiculous." I said, "No." I said, "Fuckin', mate, you've scared him. Obviously fuckin' they've - you know, they've got the message if it's them or whatever. Like, no, I'm going back home." I started driving home and I've gotten home. You know, on the way home, like, you know, I said, "What the fuck have youse done?" or, "What have - what have we done?" you know, "What the fuck have we done? What have we - you know, that could have been fuckin' - I don't even know if that's the right person. That could have been someone going to work." You know, I've gotten home, gone back inside and, you know, they're all thinking it's all a joke and, you know, high fiving each other basically. I knew the sincerity of it, you know. You know, I've had my firearms licence, you know, unfortunately taken off me and it's something I love, you know. A passion of mine sort of thing, but - so I know – I know the sincerity of - the responsibility and the things like that, and I - like I said, I just wanted to get just, yeah, like this thing out of here. Yeah. So I told - I told the people to get this firearm out of here, which they did. Now I got problems with the person that he left it there, basically saying that, you know, I have to pay for it. The - the person who - who originally wanted it who organised it had been in my - my place at the start, at the beginning, he's the one who I asked to basically fuck it off. "Get it out of here." It shouldn't been here in the first place and - so he's disposed of it for me and that's all I can say. The last couple of days I - I know the sincerity of what's been happening and - and I've tried to, you know - you know, make inquiries to getting it back so I could get it back to the police and get it off the street. You know, that's all I can pretty much say.’

45Later at questions 239 to 240, Mr Giacominato said that he hid the firearm in the back of the heater.  He later said at question 250 that the calibre was high velocity bolt action, as indeed it was. He described the firearm at questions 251 and 252, as being about 50 to 60 centimetres, with the police officer estimating that.  Then he admits at question 293 that it was he who put the firearm in the car. At question 302, having returned, he ‘put it behind the couch sort of thing'.  Describing the placement of the firearm, the initial placing of the firearm in the front floor well on the driver's side, it being ‘under the seat nozzle facing, like, towards the back under the seat' and was wrapped.  See answers to question 321 to 325.

46He described how in the vehicle, he became a bit worried because the firearm is now in someone else's hands and it was unwrapped.  See answers to questions 364 to 366. He describes what happened after the firearm was discharged at question 369.  Towards the end of the answer to that question he says:

'And then at the roundabout I drove up there, got to that - that road. I stopped, you know, like trying to - you know, thing - that I – I went past the road .......... shot the road sort of thing. Gone to reverse and someone in the – the person that was in the back has gone to jump out of the car and, like, I've turned around and I got, "What the fuck are doing?" I go, "Get  back in the car," like, you know - - -‘

47Then in partial answer to question 375, he says:

‘A little bloke – you know the white car was close. I was up near against the gutter pretty much and I thought the white car was heading towards me, but, you know, like head-on 'cause it was on the other - pretty much almost on the other side of the road. So as he's come through the roundabout he's probably looking to see if he was getting followed or - and then he's gone – veered off onto my side of the road. And then he's gone back to his - his side and I've - like, close to the gutter and, like, I hear - I hear - I hear a bang.’

Question:  ‘Sorry?’

‘No, sorry, I hear, “Pull over, pull over, pull over,” or somethin.'

48He later describes in answer to question 387 that the car was ‘almost at my car pretty much driving past each other. And then I heard a bang of – like, “What the fuck?”’ He describes the fact that his window was down. See question 394 to 395. 

49In question 405 he elaborates. Question: ‘- - - all right, ‘cause it’s a bit hard to get it out of you. Are you saying that the firearm’s been put over your shoulder?’ Answer:

Right in between I - I - I think - like, snuck out more like - so over my shoulder sort of - oh, no, from the - it would have been from the back  window. I don't know where - where it was actually positioned when it went off, you know, 'cause I - because I've tried to think about it and thought - you know, 'cause when I said, "What the fuck? What the fuck are you doing? What's going on? What the fuck?" like I go - he goes, "Oh" - he goes, "Oh, I was only showing down at the ground." [presumably it should be shooting].

50Question: ‘Yeah.’ Answer: All right. “It was only – it was only a warning just shooting down to the ground.” I go, “Are you fuckin’ crazy?”

51At question 408, he is asked: ‘Do you remember if the window in the back was down?’ Answer:

'I - I - I don’t remember. I remember, like, a lot of - a lot of commotion in the car. Because I mean I'm only short, like, you know, I drive close to the steering wheel so I've got control sort of thing. And there was a lot of movement going in the car from - from the front - the back sort of - like, you know, you could feel the car sort of move. Well, I - I - I believe the window could have been halfway maybe. The back window would have been halfway open and shut - or halfway closed, and it's - it was more like the person, you know, whoever from the back - it was more like a sneaky kind of out between the pillar and the front, around that - that kind of - kind of way.’

52At question: ‘Mm’hm.’ Answer: ‘Cause – ‘cause it was right next to me.’ Questions: ‘Yeah. So are you saying the person behind you is the person responsible for firing the firearm?’ Answer: ‘Well, I'm - I'm saying that that's where the -that's where the - where it come from. That's where it's - - -‘ Question: ‘Well, I’ll ask you point blank. Was Luke the person responsible for pulling the trigger?’ Answer: “I can’t – you know, I can’t – I can’t say that, you know. Like, I – I have to think - - -‘ Question: ‘All right. I’ll – I’ll rephrase it a different way. Did you pull the trigger?’ Answer: ‘No.’ Question: ‘Did the person seated in the front passenger seat - - -‘ Answer: ‘No.’ Question: ‘- - - pull the trigger? All right. We’re – we’re happy with our investigation that at this stage Anthony Yacoub was the person seated in the front. Can you confirm that?’ Answer: ‘Yeah.’ Question: ‘Yes.’ Answer: ‘Yeah.’ Question: ‘O.K. But at this stage you don’t want to say the name of the person who pulled the trigger.’ Answer: ‘Yeah.’ Question: ‘Is that fair to say?’ Answer: ‘Yeah.’

53Later in the interview, towards its end, at question 570 the police officer asked:’ How did you – how did you come to be back in possession of it?’ Answer:

‘All right. 'Cause I've - 'cause at this stage I've - I've cracked it, you know, like, "What the fuck?" Right? And then he's going on. "Sorry, man, I – I didn't - you know, I didn't shoot - I didn't shoot at him. I shot - I was shooting - I was shooting at the ground at the wheel." I go, "Bro, bullets can ricochet, mate. That could have fuckin' ended up coming back into our car." All right.’

54Question: ‘O.K. So we’ve spoken about what happened there.’ Answer: ‘Yeah, yeah. And then you were saying how I got in possession of it. That's how, 'cause of the conversation.’ Question: ‘O.K., yeah yeah.’ Answer: ‘Right. So I got possession back of it. And then I wrapped back in it’s pillow case and then I’ve pulled up home. I come in – I got out first or I half got out and tied some srting about it and brought it back in – back inside, I believe.’

55Later he gives the explanation about how gunshot residue could have come onto his jacket from question 619 to question and answer 620, saying that he had been to a mate's farm and 'that's the jacket I pretty much wear', especially if he's going shooting as I understand it.

56It is plain through that series of statements that Mr Giacominato places himself squarely at all times in the driver's seat, that his vehicle was either travelling slowly near the gutter, consistent with the account given by Mr Bisignano, that the vehicle, his vehicle, was stationary.

57Mr Giacominato made it very plain that it was not he who shot the rifle.  It appears that his version of events is that the rifle moves from where he placed it in the driver's passenger well into the front of the car where it is unwrapped.

58Mr Yacoub, he concedes, was in the front passenger seat.  Necessarily Luke Zidarich, is in the backseat area.

59The angle of firing according to the firearm to Mr Stephen Farrer, Sergeant of police attached to the Ballistics Unit, is that the angle that the bullet struck Mr Bisignano's vehicle was at a 35 degree angle to the driver's side of the vehicle.  Plainly, that must have occurred at a point when Mr Bisignano's vehicle was passing the stationary vehicle of Mr Giacominato.  This is graphically illustrated by Exhibit 10, which sets out Mr Farrer's opinion.

60For that to occur, the shooter had to have been able to pivot from a front position looking north to a position looking east and backwards at the point of time when the firearm was discharged. This evidence is entirely consistent with the statement of Mr Bisignano, that he saw a male with the upper part of his torso literally outside the driver's side window of Mr Giacominato's vehicle.

61That position permitted the person who shot to pivot in the required way in order to take the shot as it were, at Mr Bisignano's vehicle.  Importantly, although
Mr Farrer could not state the trajectory of the bullet, plainly, in order for it to have struck the sill area near the rear driver's side wheel of the wheel, the muzzle had to be pointed downwards.  Mr Bisignano describes the shooter holding the rifle in a classic way, namely with his left arm up at a horizontal position and the right hand in a position holding the rifle barrel area.

62The suggestion in Mr Giacominato's second record of interview that the shot was fired from the rear of the vehicle in some fashion to the immediate right of Mr Giacominato's shoulder and the centre pillar, is impossible given those angles.  It would only be possible to fire forward from the rear of the vehicle if that is the correct scenario.

63That scenario stands in stark contrast to the clear description unchallenged of Mr Bisignano that the man who fired the shot was protruding outwards through the front driver's side window.  Indeed, as is plain from Mr Bisignano's evidence, from waist up, leaning out the driver's side window.

64But there is a further proposition that has been put forward by Mr Kantor, that even if the scenario put forward by Mr Giacominato of firing from the rear of the vehicle is dismissed, as I do, Mr Yacoub could have in some way managed to move from his passenger seat across to the driver's seat and shot the rifle.

65Bearing in mind Mr Giacominato's statement in the record of interview, his second record of the interview, that he drives in a close position to the steering wheel, or even if he weren't, the sheer size of Mr Yacoub in the position as suggested, getting to any point where he could have any part of the rifle outside beggar's belief.

66Mr Giacominato, if anything of the sort occurred, would to some degree or other be crushed by this very large man straddling him, let alone for Mr Yacoub to be able to get a large portion of his body out through the driver's side window, even assuming that Mr Yacoub's upper body could fit through the driver's side window, it leaves the lower part of his body in the lap of Mr Giacominato.  Again, that scenario is utterly inconsistent with the evidence of Mr Bisignano as to his description of the male hanging outside the driver's side window.

67That scenario is also one that suffers from the same problems as the shooter from the rear of the vehicle.  How could Mr Yacoub not only get to the position that he was in, but also from that position fire backwards in order to create the 35 degree angle impact of the bullet on the complainant's vehicle in a downward trajectory.

68As Mr Kantor has pointed out in his very thorough submissions, simply excluding these scenarios may not be sufficient to prove the prosecution's assertion that it was Mr Giacominato who fired the rifle. 

69It is plain that Mr Giacominato, a skinny man, was well able from his seated position in the driver's seat, to move himself up and outside with the gun and pointed in the direction of the victim's vehicle, pivot to his right in order to follow the vehicle, driven by Mr Bisignano, and fired the shot backwards and downwards so as to hit the sill near the front rear wheel housing of Mr Bisignano's vehicle.

70I am fortified in that finding by the description given by Mr Bisignano that the shooter wore a grey jumper which had the distinctive crew neck collar to it which accords with the jumper that Mr Giacominato was wearing underneath the jacket.

71True it is that the description of the shooter was of a heavier set male than
Mr Giacominato.  I have taken into account the submission concerning that matter and in combination, the active role that Mr Yacoub had taken in suggesting that the gun should be obtained and that the gun should be used, should the person's involved in the pursuit be identified, but so too did Mr Giacominato, for it was he at Mr Yacoub's suggestion who got the firearm, which was loaded, and brought it with him.  It was he who removed the firearm from the exact same area when he returned, namely, it appears, the driver's side well of the vehicle.

72Looking to all of the evidence before me, it is in my view fanciful that anybody else could have shot the firearm other than Mr Giacominato in the manner in which it was fired.  I am satisfied therefore beyond reasonable doubt that it was Mr Giacominato who fired the rifle from the position described by Mr Bisignano.

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