Director of Public Prosecutions v Tiba

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2018 0123

DIRECTOR OF PUBLIC PROSECUTIONS

OSMAN TIBA

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	12–16 and 21–22 October 2020
DATE OF JUDGMENT:	29 October 2020
CASE MAY BE CITED AS:	DPP v Tiba
MEDIUM NEUTRAL CITATION:	[2020] VSC 717

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CRIMINAL LAW – Trial by judge alone – Intentionally or recklessly causing serious injury in circumstances of gross violence – Reckless conduct endangering persons – Victim wounded by gunfire from vehicle driven by accused – Accused’s brother shot victim – Circumstantial evidence – Whether accused party to an agreement, arrangement or understanding to shoot victim – Whether accused intentionally assisted, encouraged or directed commission of offence – COVID-19 Omnibus (Emergency Measures) Act 2020 – Criminal Procedure Act 2009 ss 420D, 420E, 420F, 420S – Crimes Act 1958 ss 15A, 15B, 23, 323(1)(a), 323(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson QC with Ms D Guesdon	Office of Public Prosecutions
For the Accused	Mr P Dunn QC with Ms A Sharpley	Emma Turnbull Lawyers

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Procedure............................................................................................................................................. 2

The charges: elements...................................................................................................................... 3

Charge 1.......................................................................................................................................... 5
Charge 2.......................................................................................................................................... 7
Charges 3 and 4............................................................................................................................. 8

The scene........................................................................................................................................... 11

CCTV footage................................................................................................................................... 12

Summary of evidence of prosecution witnesses........................................................................ 14

Medical evidence of injury............................................................................................................ 20

Forensic evidence............................................................................................................................. 21

Evidence of the accused man......................................................................................................... 24

Prosecution submissions................................................................................................................ 32

Defence submissions....................................................................................................................... 34

Analysis.............................................................................................................................................. 37

Conclusion......................................................................................................................................... 51

HIS HONOUR:

The accused man, Osman Tiba, is charged on indictment with one charge of causing serious injury intentionally in circumstances of gross violence (charge 1), one charge of causing serious injury recklessly in circumstances of gross violence (charge 2), and two charges of conduct endangering a person (charges 3 and 4). On application made on behalf of the accused, and with the consent of the prosecution, Hollingworth J made an order, pursuant to s 420D of the Criminal Procedure Act 2009, that the trial of the charges be heard by a judge alone without a jury.[1] The trial commenced before me on 12 October. On arraignment on the first day of the trial, the accused pleaded not guilty to each charge.
[1]DPP v Tiba (Judge alone trial ruling) [2020] VSC 600.

Background

In the early afternoon of Monday 17 April 2017, Mohammed Oueida (‘Oueida’), Feres Al Janabe (‘Al Janabe’) and Samir Chaarani (‘Chaarani’) attended the Coburg Islamic Mosque on the corner of Nicholson Street and Moore Street, Coburg. They left the Mosque at approximately 1:00 pm and walked in a western direction on the southern footpath of Moore Street towards Oueida’s white Lexus motor vehicle that was parked there. As they did so, a silver BMW X5 vehicle, driven by the accused man, followed them. The accused’s brother, Omar Tiba, was in the front passenger seat, and his nephew, Yousef Tiba, was in the rear passenger seat of that vehicle.

When Oueida and his companions approached the Lexus, Oueida walked onto the roadway in order to get into the driver’s seat of the vehicle. Al Janabe and Chaarani were then nearby on the footpath. As Oueida stepped onto the roadway, the BMW drove up alongside him and braked suddenly. At the same time, Omar Tiba leaned out of the passenger window of the vehicle and fired a number of shots from a handgun at and in the direction of Oueida, one of which struck him in the lower abdomen. The BMW then departed from the scene. Subsequently, Oueida was conveyed to hospital. On the following day he underwent surgery for a gunshot wound to the right abdomen, which had penetrated and caused serious damage to the bowel.

In the trial, it was not in issue that Omar Tiba fired the shots at Oueida, one of which hit him in the abdomen, and thereby caused him serious injury. Nor was it in issue that the accused was the person who drove the vehicle from which Omar Tiba fired those shots. The critical issue was whether the prosecution could prove beyond reasonable doubt that the accused was a party to an agreement, or intended, that Omar Tiba would fire those shots at Oueida.

Procedure

The system of trial of indictable offences before a judge sitting alone is quite new in Victoria. It was introduced into the Criminal Procedure Act by the COVID-19 Omnibus (Emergency Measures) Act 2020 as a consequence of the inability to hold jury trials in this State due to the outbreak of the COVID-19 pandemic. Section 420S provides that a trial by a judge alone commences when the accused pleads not guilty on arraignment before the judge. Section 420E provides that in a trial by a judge alone, the trial judge may make any decision that could have been made by a jury, and that such a decision by a trial judge has for all purposes the same effect as a verdict of a jury. Section 420F requires that, in a trial by a judge alone, the judgment must include the principles of law applied by the trial judge, and the facts on which the judge relied.

In hearing the trial as a judge sitting alone, I was, to all intents and purposes, occupying the role of both the judge and, importantly, the jury. The basic principle which must be applied is that the accused man is presumed to be innocent of each of the charges brought against him. In order to prove the guilt of the accused on each charge, the prosecution must prove beyond reasonable doubt each element of that charge. At no time throughout the trial has the accused borne, or does he bear, any obligation or onus to prove anything at all. From the commencement of the trial the onus of proof has remained on the prosecution. The standard of proof applicable in a criminal trial, including this trial, proof beyond reasonable doubt, is the highest standard of proof known to the law.

As a judge sitting alone, I have taken care to ensure that, in hearing and assessing the evidence, I have as much as possible put myself in the same position as a jury. I have taken care to ensure that at all times I keep an open mind, and that the findings that I ultimately make in this judgment are based on all the evidence that has been adduced by the parties in the trial. I have refrained from having access to or reading any extraneous material, including the depositions.

As a result of the COVID-19 pandemic, most of the witnesses who were called in the trial gave evidence via audio visual link. In hearing and assessing that evidence, I have borne in mind that the task of cross-examination of a witness who is giving evidence on audio visual link is more difficult than if the witness were to attend and be present in court.

The charges: elements

Before considering the evidence, it is necessary to identify the elements of the charges.

The prosecution case is that the accused is liable for each of the offences charged because he was involved in the commission of them pursuant to s 324(1) of the Crimes Act 1958. In particular, the prosecution alleges that the accused was involved in the offences on the basis specified in s 323(1)(c) of the Crimes Act, namely, that he entered into an agreement, arrangement or understanding with Omar Tiba to commit the offences, or alternatively on the basis specified in s 323(1)(a) of the Act, that he intentionally assisted, encouraged or directed the commission of the offences by Omar Tiba.

Section 323 and s 324 were introduced into the Crimes Act in 2014 by s 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act. Section 324C of the Crimes Act, which was also introduced in 2014, provided for the abolition of the common law concepts of complicity, including the doctrines of acting in concert, joint criminal enterprise and common purpose (including extended common purpose). Nevertheless, in a number of cases since the introduction of the new provisions, the form of complicity specified in s 323(1)(c) has been assumed to be relevantly the same as that which was comprehended by the concept of a joint criminal enterprise.[2] It was common ground, in this proceeding, that those principles should be applied to the form of the criminal involvement that is alleged against the accused.
[2]See R v Semaan (Ruling 7) (2016) 258 A Crim R 338, 341-2 [7] (Beale J); Falzon v The Queen [2019] VSCA 294, [16]–[18] (T Forrest JA).

In order to prove the criminal involvement of an accused person in an offence on that basis, the prosecution must prove beyond reasonable doubt each of the following:

1.The accused was a party to an agreement, arrangement or understanding with another to commit the offence charged, and the agreement, arrangement or understanding remained in existence when the offence was committed.
2.At the time at which the accused became a party to that agreement, arrangement or understanding, the accused intended that the offence be committed.
3.The accused did an act or acts in participation in, or in support of, the agreement, arrangement or understanding to commit that offence.
4.In accordance with the agreement, arrangement or understanding, one or more of the parties to it performed each of the acts necessary to commit the completed offence that was the subject of the agreement, arrangement or understanding.[3]

[3]See, eg, Likiardopoulos v The Queen (2010) 30 VR 654, 662 [41], 668 [59], 669 [63] (Buchanan, Ashley and Tate JJA); McEwan v The Queen (2013) 41 VR 330, 336-7 [32] (Redrich and Coghlan JJA and Dixon AJA).

The form of accessorial liability, prescribed by s 323(1)(a) of the CrimesAct, resembles, but is not identical to, the common law concepts of aiding, abetting, counselling or procuring the commission of an offence. Relevantly, in order that that form of criminal responsibility might attach to an accused person, the prosecution must prove that the accused knew all of the essential facts necessary to constitute the offence to which it is alleged that the accused was a party. In Giorgianni v The Queen,[4] Gibbs CJ stated:

No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.[5]
[4](1985) 156 CLR 473.
[5]Ibid 487–8; see also 494 (Mason J), 503 (Wilson, Deane and Dawson JJ).

Charge 1

The first charge on the indictment is that the accused intentionally caused serious injury to Mohammed Oueida in circumstances of gross violence contrary to s 15A of the Crimes Act, the circumstances of gross violence being that he planned in advance to have with him and to use a firearm and in fact used that firearm to cause serious injury.

In a case in which an accused person is alleged to have performed the act which caused the injury, the prosecution would need to prove beyond reasonable doubt each of the following elements of that offence:

1.The accused did an act or acts which caused serious injury to the victim.
2.The accused intended to cause serious injury to the victim.
3.The injury was caused in circumstances of gross violence — in this case, by planning in advance to have with him and to use, and in fact using, a firearm to cause a serious injury.
4.The accused acted without lawful justification or excuse.

As it is not alleged that the accused fired the shot which injured Oueida, in order to prove the guilt of the accused on charge 1 pursuant to s 323(1)(c) of the Crimes Act, the prosecution must prove beyond reasonable doubt each of the following elements:

1.The accused was party to an agreement, arrangement or understanding with Omar Tiba to cause serious injury to Oueida.
2.By that agreement, arrangement or understanding the accused and Omar Tiba planned to have with them and to use a firearm with which to cause serious injury to Oueida.
3.At the time of the agreement the accused intended that serious injury be caused to Oueida by shooting him with the firearm.
4.Pursuant to and in accordance with that agreement, Omar Tiba discharged the firearm at Oueida and thereby caused serious injury to Oueida.
5.The accused did an act or acts in participation in, or in support of, the agreement, arrangement or understanding to cause serious injury to Oueida, by driving the BMW vehicle, with Omar Tiba in it as a passenger, to the point at which Omar Tiba discharged the firearm at Oueida and seriously injured him.

In order to prove the guilt of the accused on charge 1 on the alternative basis that he was criminally involved in the offence pursuant to s 323(1)(a) of the Crimes Act, the prosecution must prove beyond reasonable doubt each of the following elements:

1.Omar Tiba discharged a firearm at and intentionally caused serious injury to Oueida.
2.Omar Tiba planned in advance to have with him and to use a firearm with which to cause serious injury to Oueida.
3.At the time at which the accused drove the vehicle from which Omar Tiba discharged the firearm at Oueida, the accused knew that Omar Tiba had planned in advance to have with him and to use the firearm with which to cause serious injury to Oueida.

4.With that knowledge the accused intentionally assisted, encouraged or directed Omar Tiba by driving the BMW vehicle, in which Omar Tiba was a passenger, to the point at which Omar Tiba discharged the firearm at Oueida.

Charge 2

As noted, charge 2 on the indictment alleges that the accused recklessly caused serious injury to Oueida in circumstances of gross violence contrary to s 15B of the Crimes Act, the circumstances of gross violence being that that the accused planned in advance to have with him and to use a firearm and in fact he used that firearm to cause serious injury. That charge is an alternative to charge 1 on the indictment, and would be relevant in the event that I am satisfied that the accused was a party to an agreement with his brother Omar Tiba to fire a shot or shots at or in the direction of Oueida, but that I was not satisfied beyond reasonable doubt that the accused intended that Oueida thereby suffer serious injury.

In order to establish the guilt of the accused on charge 2 on the basis that he was criminally involved in the offence charged pursuant to s 323(1)(c) of the Crimes Act, the prosecution must prove beyond reasonable doubt each of the following elements:

1.The accused was a party to an agreement, arrangement or understanding, with Omar Tiba that Omar Tiba would discharge a shot or shots from a firearm at or in the direction of Oueida.
2.By that agreement, arrangement or understanding the accused and Omar Tiba planned to have with them and to use a firearm which was to be used to discharge a shot or shots at or in the direction of Oueida.
3.At the time of the agreement, the accused was aware that the discharge of the firearm at or in the direction of Oueida would probably cause serious injury to Oueida.
4.Pursuant to and in accordance with that agreement, arrangement or understanding, Omar Tiba discharged the firearm at or in the direction of Oueida and as a consequence caused him serious injury.
5.The accused did an act or acts in participation in, or in support of, the agreement, arrangement or understanding by driving the BMW, with Omar Tiba in it as a passenger, to the point at which Omar Tiba discharged the firearm at Oueida and seriously injured him.

In order to establish the guilt of the accused on charge 2 on the alternative basis pursuant to s 323(1)(a) of the Crimes Act, the prosecution must prove beyond reasonable doubt each of the following elements:

1.Omar Tiba caused serious injury to Oueida by discharging a firearm at or in the direction of Oueida.
2.Omar Tiba had planned in advance to have with him and to use the firearm with which to shoot at or in the direction of Oueida.
3.The accused knew that Omar Tiba planned to have a firearm with him and to discharge it at or in the direction of Oueida in circumstances in which it was probable that serious injury would be caused to Oueida.
4.With that knowledge the accused intentionally assisted, encouraged or directed Omar Tiba to discharge the firearm at or in the direction of Oueida by driving the BMW to the position at which Omar Tiba discharged the firearm at Oueida.

Charges 3 and 4

The third and fourth charges on the indictment allege that the accused recklessly engaged in conduct that placed Al Janabe (charge 3) and Chaarani (charge 4) in danger of serious injury, namely, by discharging a firearm in the direction of each of them, contrary to s 23 of the Crimes Act.

The elements of that offence, and of the offence of recklessly engaging in conduct that places another in danger of death under s 22 of the Crimes Act, have been considered in a number of authorities, including R v Nuri,[6] Mutemeri v Cheesman[7] and R v Abdul-Rasool.[8] In R v Wilson,[9] Batt JA (with whom Buchanan and Vincent JJA agreed) described the relevant elements in the following terms:

Now, the elements of the offence of reckless conduct endangering a person are:- (1) that the accused engaged in the conduct alleged (here, the discharge of the rifle); (2) that, subjectively, the accused intended to engage in that conduct (that is, here, to discharge the firearm); (3) that, objectively, a reasonable person, in the position of the accused, engaging in the very conduct in which the accused engaged, would have realised that the conduct placed, or might place, the alleged victim in danger of serious injury, that is, under exposure to an appreciable risk of serious injury[10]; (4) that, subjectively, the accused was reckless in that he foresaw that a probable consequence of the conduct was serious injury to the alleged victim or, it may be, the danger of serious injury to the alleged victim in the sense of exposure of the latter to an appreciable risk of serious injury, and displayed indifference as to whether or not that consequence should occur (that is, nevertheless went ahead and engaged in the conduct); and (5) that the accused had no lawful excuse for the conduct: R. v. Nuri[11]; R. v. Campbell[12]; Filmer v. Barclay;Mansfield v. Arnold[13]; and Mutemeri v. Cheesman[14].[15]

[6][1990] VR 641, 643–4 (Young CJ, Crockett and Nathan JJ).

[7][1998] 4 VR 484, 488, 491 (Mandie J).

[8](2008) 18 VR 586, 591 [19] (Redlich JA).

[9][2005] VSCA 78.

[10]Compare Wilson v. The Queen (1992) 174 CLR 313.

[11][1990] VR 641 at 643-644.

[12][1997] 2 VR 585 at 592.

[13][1994] 2 VR 269.

[14][1998] 4 VR 484.

[15]R v Wilson [2005] VSCA 78, [17].

In the present case, in which the accused is alleged to be liable in respect of the offences that are the subject of charges 3 and 4 pursuant to s 323(1)(c) of the CrimesAct, the prosecution must prove beyond reasonable doubt each of the following elements:

1.The accused and Omar Tiba entered into an agreement, arrangement or understanding that Omar Tiba would discharge the firearm at or in the direction of Oueida in circumstances in which another person or other persons might be in close proximity to the direction of fire.
2.The accused intended that Omar Tiba would discharge the firearm in those circumstances.
3.Pursuant to and in accordance with that agreement, arrangement or understanding, Omar Tiba discharged the firearm in circumstances in which Al Janabe (charge 3) and Chaarani (charge 4) were in close proximity to the direction of fire.
4.That conduct of Omar Tiba placed Al Janabe (charge 3) and Chaarani (charge 4) in danger of serious injury; that is, a reasonable person who performed that conduct would have realised that the conduct carried with it an appreciable risk of causing serious injury to Al Janabe (charge 3) and Chaarani (charge 4).
5.In entering into the agreement, arrangement or understanding with Omar Tiba, the accused foresaw that that conduct would probably expose another person or other persons to an appreciable danger of serious injury.
6.The accused did an act or acts in participation in, or in support of, the agreement, arrangement or understanding, by driving the BMW vehicle, with Omar Tiba in it as a passenger, to the point at which Omar Tiba discharged the firearm at or in the direction of Al Janabe (charge 3) and Chaarani (charge 4).

In order to prove the guilt of the accused on charges 3 and 4 on the alternative basis pursuant to s 323(1)(a) of the Crimes Act, the prosecution must prove beyond reasonable doubt the following elements:

1.Omar Tiba discharged a firearm at Oueida from the BMW vehicle driven by the accused in circumstances in which Al Janabe (charge 3) and Chaarani (charge 4) were in close proximity to the direction of fire.
2.That conduct of Omar Tiba placed Al Janabe (charge 3) and Chaarani (charge 4) in danger of serious injury; that is, a reasonable person who committed that conduct would have realised that the conduct carried with it an appreciable risk of causing serious injury to Al Janabe (charge 3) and Chaarani (charge 4).
3.At the time at which the accused drove the BMW vehicle to the point at which Omar Tiba discharged the firearm, the accused knew that Omar Tiba intended to discharge the firearm at Oueida in circumstances in which Al Janabe (charge 3) and Chaarani (charge 4) were in close proximity to the direction of fire.
4.With that knowledge, the accused intentionally assisted, encouraged or directed Omar Tiba to discharge the firearm at Oueida in circumstances in which Al Janabe (charge 3) and Chaarani (charge 4) were in close proximity to the direction of fire.
5.The accused foresaw that the conduct of Omar Tiba would probably expose Al Janabe (charge 3) and Chaarani (charge 4) to an appreciable risk of serious injury.

The scene

The incident, that is the subject of the charges, occurred shortly after 1:00 pm on 17 April 2017 on the south side of Moore Street Coburg, approximately 80 metres west of the intersection of that street with Nicholson Street. Moore Street runs in an east/west direction between Sydney Road and Nicholson Street. The Coburg Islamic Mosque is located on the south-west corner at the intersection of Moore Street and Nicholson Street. Immediately to the west of the Mosque, on the southern side of Moore Street, are premises at 82 Moore Street. Those premises have a corrugated iron front fence. To the west of those premises is 22 East Street. Those premises, which have a timber fence, are located on the south/east corner of the intersection of Moore Street and East Street. The incident occurred outside the premises at 22 East Street.

Sometime after midday on 17 April 2017, Oueida and Chaarani met with Al Janabe at or near the premises of Falafel House, which is located near the intersection of Bell Street and Sydney Road Coburg. Having attended at that restaurant, they decided to attend the Mosque that was nearby. Oueida and Al Janabe decided to walk to the Mosque, and they set off walking south along Sydney Road, from where they turned left or east, into Moore Street. In the meantime, Chaarani drove a white Lexus vehicle, belonging to Oueida’s father, from Falafel House towards the Mosque, and parked it on the southern side of Moore Street outside the premises at 22 East Street. The three men then attended the Mosque for a little over ten minutes. After doing so, they left the Mosque through its entrance onto Nicholson Street, walked a short distance north and then turned west into Moore Street. As they approached the Lexus vehicle, Chaarani handed the keys to the vehicle to Oueida, who stepped onto the roadway to enter it. It was at that point that the BMW vehicle, driven by the accused man, approached the Lexus vehicle and from which Omar Tiba fired a number of shots at Oueida.

CCTV footage

The incident, and the movements of the Lexus, the BMW vehicle, and Oueida, Al Janabe and Chaarani, leading up to it, were captured on CCTV footage subsequently recovered by the police from premises at 69 Moore Street, 75 Moore Street, 93 Moore Street, the Mosque, and 110 Nicholson Street.

The premises at 69 Moore Street and 75 Moore Street are located on the northern side of the street some distance west of the intersection of East Street. The premises at 93 Moore Street are located at almost directly opposite the premises at 22 East Street. The premises at 110 Nicholson Street are located on the east side of Nicholson Street some distance north of the intersection with Moore Street. The CCTV footage from the Mosque was taken from a camera above the entrance to the Mosque on Nicholson Street.

The following is a summary of the relevant movements of the vehicles and people leading up to and including the time of the incident, as recorded on the CCTV footage:

12:28 pm — The Lexus vehicle drove east on Moore Street past the premises at 69 and 75 Moore Street.
12:30 pm — The Lexus parked outside the premises at 22 East Street.
12:42 pm — The BMW drove west past 75 Moore Street.

12:47 pm — Oueida and Al Janabe walked west on Moore Street past the premises at 69 and 75 Moore Street.
12:48 pm — The BMW vehicle drove slowly east on Moore Street past 69 and 75 Moore Street.
12:48 pm (14 seconds later) — Oueida and Al Janabe walked past the parked Lexus vehicle and continued east towards Nicholson Street. Chaarani got out of the Lexus and followed Oueida and Al Janabe.
12:49 pm — Oueida, Al Janabe and Chaarani entered the Mosque through the entrance on Nicholson Street.
12:52 pm — A blue Aurion vehicle drove west in Moore Street past 93 Moore Street.
12:54 pm — The BMW was stationary in Moore Street facing east opposite the intersection of East Street.
12:55 pm — The BMW executed a U-turn to drive west on Moore Street.
12:59 pm — The BMW drove east past 93 Moore Street and turned right into Nicholson Street, stopped opposite the Mosque, and then drove slowly south.
1:00 pm (about 30 seconds later) — The BMW drove north on Nicholson Street past the Mosque.
1:00 pm (about 40 seconds later) — Oueida, Al Janabe and Chaarani exited the Mosque from the entrance at Nicholson Street and turned to the left.
1:01 pm (about 12 seconds later) — The BMW is depicted coming into view of the camera at the Mosque travelling south on Nicholson Street. After pausing slightly north of the Mosque for about eight seconds, it then accelerated south on Nicholson Street.
1:01 pm (about 30 seconds later) — The BMW drove north on Nicholson street past the Mosque and turned left into Moore Street. It then paused behind the bushes on the corner of the street for approximately 30 seconds before moving in a west direction on Moore Street.
1:02 pm — Oueida, Al Janabe and Chaarani approached the Lexus vehicle with Oueida stepping onto the roadway.

It was then that the shooting occurred. The CCTV footage taken from 93 Moore Street depicts Oueida and Al Janabe walking towards the Lexus vehicle with Chaarani some metres behind them, and another unknown person slightly behind Chaarani. As Oueida and Al Janabe approached the rear of the Lexus vehicle, Oueida stepped onto the roadway a short distance behind the Lexus. At that point, Al Janabe was on the footpath approaching the Lexus and Chaarani was behind him. As Oueida reached the back right hand corner of the Lexus, the BMW approached rapidly from the east. It braked with its front bumper bar approximately level with the line between the front and rear right hand doors of the vehicle. Almost at the same instant, Oueida fell or rolled back from the rear of the Lexus vehicle. He immediately stood up and ran quickly towards the east on the south side of Moore Street. As he did so, the BMW drove west on Moore Street. It then did a three point U-turn at East Street, and drove rapidly east towards Nicholson Street.

After the incident, Oueida ran into the Mosque through the entrance on Nicholson Street. About ten seconds later Al Janabe also ran towards the Mosque. Chaarani moved out of the sight of the CCTV footage. About two minutes later, Chaarani and Oueida entered the Lexus vehicle, with Chaarani driving it.

Summary of evidence of prosecution witnesses

The first witness called by the prosecution was witness A, whose evidence had been pre-recorded. On 14 April 2017, witness A attended the home of Ms Nelle Mourad in Northcote. Omar Tiba was present at those premises at that time. Witness A gave evidence that on that day Omar Tiba took possession of his BMW X5 motor vehicle (registered number 1JS 4FZ) and that he did not subsequently recover the vehicle. On the same day, witness A saw some live bullets on the kitchen bench of Ms Mourad’s residence. He also saw some spent casings there. On a previous occasion he had seen Omar Tiba with a .32 pistol or revolver on his person.

On 17 April 2017, witness A was working in Epping renovating a house. At about lunchtime Ms Mourad attended at the premises in company with Omar Tiba. She told witness A that he should report that his BMW vehicle had been stolen. Ms Mourad and Omar Tiba then departed. Subsequently, Ms Mourad contacted witness A to tell him not to report that the vehicle had been stolen, but he told her that he had already made a report to Sunshine Police.

Al Janabe and Chaarani were each called to give evidence on behalf of the prosecution. Oueida had refused to cooperate with police and was not available to give evidence.

Al Janabe gave evidence that he first met the accused in late 2016 or early 2017. By that time, he had known Omar Tiba for about three years. In April 2017, he had formed a ‘new relationship’ with Oueida who he regarded as a good friend. Al Janabe said that about one month before the incident of 17 April, he saw Oueida talking with the accused’s brothers Zain and Ali Tiba at the Broadmeadows Shopping Centre.

Al Janabe gave evidence that on Monday 17 April 2017 he had made arrangements to meet Oueida in front of the Falafel House in Sydney Road, Coburg near the corner of Bell Street. Al Janabe arrived at that location in his silver Mercedes Benz at about 11:30 am or midday. Oueida invited him inside to have breakfast but Al Janabe declined. They then decided to walk to the Mosque to pray. Chaarani, who was a mutual friend, was also there. Chaarani had a heart problem so he did not walk, and instead he drove Oueida’s Lexus motor vehicle to the Mosque.

Al Janabe and Oueida walked south down Sydney Road and turned left into Moore Street. As they approached Nicholson Street, they crossed to the southern side of Moore Street, turned right into Nicholson Street and entered the Mosque. They were followed by Chaarani.

Al Janabe stated that as he turned the corner from Moore Street into Nicholson Street, he saw a BMW X5 vehicle driving south in Nicholson Street. He thought that the driver of the vehicle looked a bit suspicious. Al Janabe, Oueida and Chaarani entered the Mosque at about 12:45 pm and they remained there for 15 minutes. They then left through the Nicholson Street exit, turned left into Moore Street and walked towards the Lexus vehicle. As they did so, Chaarani received a telephone call from his wife and he dropped behind to speak to her. He handed the keys to the Lexus to Oueida.

Oueida then started to walk onto the roadway to enter the driver’s side of the vehicle. As he did so, a BMW vehicle drove past Al Janabe. The car window on the passenger side of the vehicle opened and a gun appeared out of it. Al Janabe was then three or four metres from the passenger side of the BMW, and Oueida was near the boot of the Lexus. Al Janabe noticed that Omar Tiba was holding the gun. Oueida was then about five metres from him. Omar Tiba was swearing and leaning out of the vehicle. A number of shots were fired. When Al Janabe saw the gun, he called out to Oueida ‘a gun, a gun’. After the shots were fired, Oueida fell down, stood up and ran towards the Mosque. Al Janabe saw the BMW coming back towards him. He followed Oueida to the Mosque but could not see him there.

Later Al Janabe received a telephone call from Oueida saying ‘We are coming back to get you’ so he left the Mosque and got into the Lexus vehicle which was driven by Chaarani. Oueida was in the front passenger seat. They then drove to the Falafel House. Oueida and Al Janabe remained in the Lexus vehicle and Chaarani drove Al Janabe’s Mercedes Benz. Al Janabe drove the Lexus vehicle to a friend’s house in Broadmeadows. They remained there for a period of time. Later, Oueida said he needed to go to the hospital, so Al Janabe drove him to the John Fawkner Hospital in the Lexus vehicle. After Oueida was attended there by medical staff, the police arrived.

In cross-examination, Al Janabe stated that he had met Oueida after he was released from jail. He said that Oueida was a very well-known figure in the Lebanese community. There was a lot of publicity that police had seized $6 million in foreign bank accounts held by him, that he had a lavish lifestyle, that he was a very big drug dealer and that he had millions of dollars in assets. Oueida had shown Al Janabe a photograph of himself (posted on Facebook) wearing a Comanchero Motorcycle Club logo.

Al Janabe said that when he and Oueida walked to the Mosque, they had left their telephones with Chaarani, so that they could have a private conversation which could not be overheard by anyone who had intercepted their telephones. Al Janabe did not see the BMW driving in either direction along Moore Street, but he saw it on Nicholson Street before they entered the Mosque. He said that after they left the Mosque, and walked along Moore Street, he did not hear the BMW approach. When he looked up, the BMW was almost alongside him. The vehicle stopped in front of Oueida and Al Janabe. At that point, Al Janabe was about to open the door of the Lexus vehicle. He heard shouting from the BMW and then the sound of gun fire. He called out to Oueida ‘There is a gun, a gun’. He could see both Omar Tiba and the accused, and he did not see the accused man grab Omar. He disagreed with the proposition, put in cross-examination, that during the exchange Oueida had shouted out at the occupants of the BMW vehicle.

Chaarani gave evidence that on 17 April 2017, Oueida had come to his house to have breakfast with him. They decided to travel to Falafel House in Sydney Road, Coburg. After they entered the restaurant, they were joined by Al Janabe. The three men then left the restaurant and decided to go to the Mosque. Oueida and Al Janabe decided to walk. Chaarani was given the Lexus to drive there. He drove down Sydney Road, turned left into Moore Street and parked on the southern side of the street. The journey had taken about ten minutes. When Oueida and Al Janabe walked past him, the three men entered the Mosque and prayed there. After they left the Mosque, they turned left into Moore Street. At Oueida’s request, Chaarani handed him the keys to the Lexus vehicle.

Chaarani then received a telephone call from his wife and he dropped behind the other two men to talk to her. At that point, the BMW approached near the Lexus. The front passenger side door of the BMW was next to the boot of the Lexus. The BMW suddenly stopped and Omar Tiba began shooting from the front passenger window. Chaarani could see that Omar Tiba was in the front passenger seat and the accused was driving the vehicle. He also thought that someone was in the rear seat of the BMW.

At that point, Oueida had only just stepped onto the roadway. Chaarani said that five or six shots were fired over a period of about ten to fifteen seconds. As he fired the weapon, Omar Tiba swore at Oueida in Arabic and English saying ‘Die you bastard’. Oueida went to turn back to the footpath, but he fell to the ground. He then stood up and proceeded to Nicholson Street. Throughout the incident, the driver of the BMW (the accused) was ‘just staring’ at them, and he did not say anything. After the shooting, the BMW did a U-turn a couple of blocks further west and turned back. Chaarani stayed near the Lexus. When Oueida returned to it, he told Chaarani that he had been hit in the stomach. Chaarani then drove the Lexus vehicle to Falafel House. Al Janabe gave him the key to his car and Al Janabe drove the Lexus with Oueida in it.

In cross-examination, Chaarani said that as he approached the Lexus vehicle, both Al Janabe and he were moving to enter the passenger side of it. He did not hear the BMW vehicle approach, but he heard it when it braked to a standstill. At that point, Chaarani was close to the passenger door of the Lexus vehicle. He did not hear any conversation between Oueida and Omar Tiba. He said that Omar Tiba was swearing at Oueida. He said that the driver of the vehicle was directly in line with him. The driver did not say anything. He had both his hands on the steering wheel and was facing towards Chaarani. Omar Tiba’s body was more than half way out the window, and his head was nearly to the rear door window. He was leaning out towards the rear door and his hands were extended in that direction.

Chaarani said that he had known Oueida before he went to jail in 2012. He did not know that Oueida was in jail for the offence of large commercial drug trafficking. He knew that Oueida drove a Ferrari vehicle and lived in a large house in Greenvale. He had visited Oueida in jail, but he did not ask him why he was in prison or for how long he would be there.

Chaarani said that when the three men were at the Falafel House restaurant, Oueida and Al Janabe left their telephones there and went outside to have a discussion. Subsequently, when they set out to walk to the Mosque, Al Janabe and Oueida again left their mobile telephones in Chaarani’s possession.

In April 2017, Mohammed Viq Mirza lived in a house on the north side of Moore Street near the intersection of Nicholson Street. On Monday 17 April, he visited his father’s house which was on the south side of Moore Street. He then returned to his own home at about 1:00 pm (in fact, the CCTV footage from the camera at 93 Moore Street depicted him crossing the road at 12:51pm). After he had crossed the road and was about to enter the front gate of his house, Mr Mirza noticed that a BMW X5 vehicle was stationary in front of his next door neighbour’s house. There were people in it who ‘didn't look right’. He said that they were sitting in the vehicle and were looking around, and that they appeared to be ‘paranoid’ and ‘nervous’. He could see someone sitting in the driver’s seat, someone in the front passenger seat and someone in the rear seat. Mr Mirza was concerned about their conduct, because his children were playing in the front garden. When he saw his wife, he told her to go inside. While they were in their house, about two or three minutes later, they heard some gun shots. Mr Mirza ran outside. He saw the BMW driving in an easterly direction towards Nicholson Street, and then turn left. He said that the occupants of the BMW were of Middle Eastern background. He thought one was a male, one was a female, and the person in the rear seat was a male. He said that the female in the front passenger seat was wearing either a hoodie or a headscarf.

In April 2017, Adam Schipano was also living in a house on the north side of Moore Street with his partner Natasha. It was about twenty or thirty metres west of the intersection of Nicholson Street. He said that on 17 April 2017, as he was about to leave the premises for some exercise, he heard three loud bangs, a short pause, and then two further bangs. He thought that they might be gunfire. Mr Schipano and Natasha went to the front bedroom window. There they saw three elderly men standing on the corner of Nicholson Street and Moore Street. Another man, who was younger, was running up and down the alleyway that was adjacent to the Mosque. He then saw a Lexus vehicle pull up at the edge of the alleyway. The man who was running in it got into the Lexus, which then drove off.

Medical evidence of injury

As mentioned, after the incident, Oueida was driven by Al Janabe to the house of another friend in Broadmeadows. Due to the nature of his injury, he then attended the John Fawkner Hospital in Coburg. An X-ray performed there revealed the presence of a bullet in the abdomen. Oueida was transferred to the Royal Melbourne Hospital for surgery and further treatment, and the police were notified.

The evidence as to the nature and extent of the injury sustained by Oueida was given by Dr Marc Xia, medical practitioner who worked in the Emergency Department of the Royal Melbourne Hospital, and by Dr Jason Schreiber, a forensic physician employed by the Victorian Institute of Forensic Medicine. It is not in dispute that the injury sustained by Oueida was a serious injury as defined by s 15 of the Crimes Act. Accordingly, it is only necessary to summarise the evidence of the medical practitioners in short compass.

On arrival at the Royal Melbourne Hospital, Oueida was examined in the Emergency Department. Further radiology was performed. It demonstrated a bullet wound that had entered in the region of the right iliac fossa (the lower right abdomen) with evidence of hemopneumoperitoneum (free blood and air in the abdominal cavity). That finding was consistent with an abdominal visceral injury. Surgery was undertaken in the form of a laparotomy. Oueida was found to have a wound which penetrated the caecum/distal ilium (the point at which the small bowel joins the large bowel). The wound had also penetrated the transverse colon (middle portion of the large bowel). The angle of the wound was front to back and slightly downwards. The surgeons removed a piece of the large bowel and a small part of the small bowel, and removed bullet fragments which were later handed to police. Following the conclusion of the operation, Oueida remained in hospital for a few days before he was discharged.

Dr Schreiber examined the hospital records relating to Oueida’s injury. He considered that in the absence of treatment, the injury was potentially life-threatening. He explained that because of the perforation of the colon, faecal matter had leaked, and would continue to leak, into the abdominal cavity resulting in inflammation and infection constituting peritonitis. That condition is very dangerous to the health and without appropriate treatment, would be potentially fatal.

Forensic evidence

Police who attended the scene in Moore Street located a fired bullet on the roadway outside the premises at 22 East Street. They also located a bullet hole in the timber fence to the premises of 22 East Street, and another bullet hole in the corrugated iron fence of the premises at 82 Moore Street.

Senior Sergeant Stephen Farrar, a member of the Ballistics Unit of Victoria Police Forensic Science Centre, attended the scene on 18 April 2017. Senior Sergeant Farrar took possession of the fired bullet. He noted that the bullet hole to the timber fence of the property at 22 East Street was located west of the driveway to the property. The hole was 1.06 metres above the ground level. He examined the inside of the fence but was unable to determine whether the bullet had passed completely through the fence. Senior Sergeant Farrar said that the damage to the metal corrugated iron fence at 82 Moore Street was shaped in the form of a horizontal trench, which indicated that it was struck at an acute angle (described by Senior Sergeant Farrar as a ‘low angle of incidence’). He considered that on impact the bullet had ricocheted a very short distance to the east before causing further damage to the fence. The hole was 0.66 metres above the ground level.

Senior Sergeant Farrar examined the bullet that was recovered from the abdomen of Oueida. He concluded that it was a .32 automatic pistol calibre fired bullet. He was unable to determine the brand. He noted that it had been fired from a firearm with six lands and grooves, where the relationship between the grooves to lands was narrow, and they had a left hand twist. Senior Sergeant Farrar also inspected the fired bullet that he had retrieved from the roadway of Moore Street. He concluded that it also was a .32 automatic pistol calibre fired bullet. He was unable to determine the brand. It had the same characteristics as the bullet that was recovered from the abdomen of Oueida, but it had insufficient individual characteristics that enabled him to determine whether the two bullets had been discharged from the same firearm.

In cross-examination, Senior Sergeant Farrar agreed that the discharged bullet that was located on the roadway, might not have been in its original position when he found it. He also said that he did not observe any damage by gunfire on the surface of the road in the region of 22 East Street. He was unable to determine whether the timber paling fence or the corrugated iron fence was hit first. He was also unable to determine the trajectory of the bullets which struck the two fences, other than that the bullet that damaged the paling fence was fired at an angle that was close to 90 degrees from the fence.

On 18 April 2017, the informant, Detective Acting Sergeant Matthew Lacey, and Detective Senior Constable Rhett Rattray, of the Echo Taskforce, attended the scene. In their evidence they described their observations of the scene.

In cross-examination, Detective Senior Constable Rattray stated that the role of the Echo Taskforce was to deal with the criminal activities of organised motorcycle gangs and Middle Eastern organised crime gangs. He confirmed that Oueida was linked to the Comanchero Motorcycle Club and that he was a person of interest to the Echo Taskforce. He said that Oueida had said at the hospital that he sustained injury to his stomach by using a drill while undertaking home renovations, and that he was not cooperative with police. He also confirmed that in 2012 Oueida had been sentenced to a term of imprisonment for the offence of large commercial drug trafficking, and that on his arrest he had $6 million in his Swiss bank account, a mansion in Greenvale, a luxury motor vehicle and an aeroplane.

Detective Senior Constable Rattray agreed that a common anti-surveillance technique, used by people who are involved in criminal activity, is to hold any discussions, which they do not want to be overheard, away from their mobile telephone. It was also common practice for people like Oueida to use different motor vehicles in order to evade surveillance. Senior Constable Rattray confirmed that the premises at 26 Mount Street Preston were the then address of the Tiba family home, and that it was located approximately 2.5 kilometres from Moore Street.

Detective Acting Sergeant Lacey gave evidence about a number of matters relating to the investigation. On 19 April 2017, he ascertained that a BMW X5 motor vehicle had been destroyed by fire in a creek reserve in Reservoir. The BMW had a vehicle identification number that enabled it to be identified as the BMW owned by witness A. He also confirmed that Omar Tiba was arrested on 22 April. On 11 October, the accused and Yousef Tiba were each arrested at separate locations.

Detective Acting Sergeant Lacey produced WhatsApp messages, that were extracted from Oueida’s telephone, that had passed between that telephone and the accused’s telephone on 17 April 2017. They commenced with a message from Oueida’s telephone to the accused’s telephone at 2:10 pm stating ‘Hey dog lucky u [you] c…s are a shit shot lol!’. In the following six minutes, the accused’s telephone sent three messages to Oueida’s telephone, stating, respectively, ‘Who’s the dog?’, ‘Who’s this?’ and ‘I think u [you] got the wrong number’. At 2:17 pm, Oueida’s telephone sent a message to the accused’s telephone stating ‘Osman Tiba you mutt u n ur [you and your] dog pack will learn who the fuck I am rat! Big mistake!!! Should of done a better job.’ In turn, the accused’s telephone sent a message to Oueida’s telephone stating ‘U [you] still haven’t told me who u [you] are.’ Oueida’s telephone then responded ‘Missed Me bitches’.

Detective Acting Sergeant Lacey also produced a recording from Oueida’s telephone of an intercepted call at 1:02 pm on Monday 17 April 2017, on which could be heard five (and possibly six) gunshots. In addition, Detective Acting Sergeant Lacey produced a transcript of a recorded Arunta call between Bassam Tiba (at the Melbourne Assessment Prison) and the accused on 17 April 2017 at 4:11 pm. In the course of that telephone conversation, the accused said ‘… I’m saying the fat one, we saw the fat one. Like you know what I mean.’ Bassam Tiba responded ‘We saw who?’ to which the accused said ‘Yeah, don’t worry about it but that’s it.’ Bassam Tiba then asked: ‘Something nice, you mean?’ to which the accused responded ‘It’s divine destiny from God, that’s it, all good.’ Bassam Tiba then asked ‘Was it bad or good?’ and the accused responded ‘It was good but, you know, all good.’

In cross-examination, Detective Acting Sergeant Lacey confirmed that the Echo Taskforce paid particular attention to motorcycle gangs and to people associated with them, including Oueida. He described Oueida as a dangerous man and a criminal, who was very anti-police. He agreed that a standard procedure undertaken by people such as Oueida is to hand their telephones to someone else when they wish to have a conversation that could not be intercepted by the police. Detective Acting Sergeant Lacey confirmed that when he was at the John Fawkner Hospital, Al Janabe had asked Oueida what he should say to police. In the first statement signed by Al Janabe, he gave an untruthful account as to what had occurred. Subsequently, Al Janabe made two further statements in which he gave a truthful account as to these events.

Evidence of the accused man

At the conclusion of the prosecution case, the accused gave evidence. He commenced by stating that at no time before Omar Tiba fired the gun at Oueida did he know that that was his brother’s intention. He said that he did not know before the shooting that Omar had a gun, and he did not plan with Omar or encourage him to shoot Oueida.

The accused gave detailed evidence as to his background and family. In 2008, he was in custody for a number of offences. In addition, he was on remand in respect of an aggravated burglary. When he was released in 2009, he met and commenced to have dealings with Oueida. Those dealings were related to drug trafficking and associated matters. During that time, the accused was arrested and drugs were found in his vehicle which belonged to Oueida. He was sentenced for the aggravated burglary to six and a half years’ imprisonment with a minimum non-parole period of four years. He was ultimately released from custody in April 2016. The accused said that while he was in prison he had embarked on a process of reform in which he engaged in education, sport and religion. After his release he obtained work as a concreter. At the same time, he met his wife Lara whom he married in late March or early April 2017. At that time, he was living at premises in Mount Street Preston. His brother Ali, his brother Omar and his wife, and his nephew Yousef, also lived there.

The accused stated that after Oueida was released from prison in December 2016, they happened to meet at the Fawkner Mosque. They exchanged telephone numbers and agreed to catch up with each other and have a meal together. At that meeting, Oueida mentioned an outstanding debt of $90,000 owed by the accused to him for drugs, but at that stage the accused did not think that Oueida was serious about it.

Subsequent to that meeting, however, Oueida sent messages to the accused through other people claiming that the accused was a ‘dog’ and that the accused still owed him $90,000. The accused attempted to telephone Oueida on a number of occasions but was not successful in doing so. He was keen to resolve the issue about the debt which he regarded as past history, and which, he considered, Oueida should put behind him.

During the weekend that preceded the shooting, and commencing on the Friday, the accused attended a religious event at Fawkner Mosque, where he stayed on Friday, Saturday and Sunday nights. The event included a number of sermons and lectures by religious scholars, together with worship. On the Monday morning, after attending the final prayer session, he drove to his wife’s parents’ house in Craigieburn, where he collected his wife. They planned to visit the accused’s brother Bassam who was then in custody in the Melbourne Assessment Prison (‘MAP’). At the time the accused was driving the BMW X5 vehicle which his brother Omar had provided to him. He said that he did not know where Omar had got it from. The accused himself had a rental vehicle at the time, but he had preferred to use the BMW over the weekend when he attended the Fawkner Mosque.

The accused then drove the BMW vehicle, with his wife, to his home in Mount Street Preston, where he prepared to visit his brother at the MAP. He then set off in the BMW with his wife, and two nephews. After he entered Nicholson Street, he drove south to Moore Street, where he turned right to drive towards Sydney Road. As he did so, he sighted Oueida and Al Janabe who were walking east towards Nicholson Street. He then executed a U-turn and followed them. He said he wanted to talk with Oueida to resolve the outstanding issue about the drug debt with him, and he thought it was a good time to do so. However, his wife wanted to go to the MAP, and she was very displeased with the accused for diverting from their plan to do so. As a consequence, they had a discussion which degenerated into an argument between them.

In the course of the argument, the accused brought his vehicle to a stop. The argument with his wife deteriorated further. The accused did not see where Oueida and Al Janabe went when they left Moore Street, but he assumed they had turned right into Nicholson Street. At that point, the accused telephoned his nephew Yousef and asked him to attend. In his evidence, he explained that Yousef is a tall man (in the old terminology about 6 feet 1 inch tall) and he wanted to have Yousef with him when he confronted Oueida about the drug debt. At that stage, the accused had assumed that Oueida and Al Janabe had attended a restaurant or café in Nicholson Street.

Shortly afterwards, Yousef arrived in a blue Toyota Aurion vehicle. He turned into Moore Street and parked on the south side of the street. The accused executed a U-turn in the BMW and parked near him. It was then that he noted that his brother Omar was also in the Aurion vehicle. Yousef and Omar got out of the Aurion and they had a conversation together. The accused told his wife and his two nephews that he wanted to speak to Oueida to resolve the problem between them. At that point, the accused’s wife became very angry. She got out of the BMW, and drove with the two nephews in the Aurion to visit Bassam at the MAP.

The accused said that Yousef then got into the back seat of the BMW, and Omar got into the front passenger seat. He executed another U-turn, in order to look for Oueida. He drove east to Nicholson Street and then turned right to drive south. However, he was not able to sight Oueida. He thought it was possible that Oueida had turned left (north) from Moore Street into Nicholson Street. Accordingly, he did another U-turn and drove north in Nicholson Street past Moore Street. However, he was unable to see Oueida. He therefore did another U-turn and again drove south on Nicholson Street to have a final look for Oueida. When he did so, he saw Oueida and Al Janabe walking out of the Mosque towards Moore Street. As a result, the accused executed another U-turn and turned back (north) to follow them. He then turned left (west) into Moore Street and stopped the vehicle shortly after doing so. Having done so, he told Omar and Yousef that he intended to drive along Moore Street and park near Oueida, and he wanted each of them to alight from the vehicle, and to stand near him while he spoke to Oueida. Before the accused drove away from the corner of Moore Street and Nicholson Street, Omar remarked ‘catch up to this fucking dog’. The accused then drove towards Oueida, over a distance of about 80 metres.

The accused said that everything then happened quickly. As he was driving towards Oueida, Omar opened his window and started swearing at Oueida. The accused put one arm on Omar’s jumper and tried to pull him back. He then heard gunshots. The accused immediately pressed the brake pedal, took his other hand off the steering wheel, and with both hands, tried to pull Omar back into the cabin of the vehicle. As he was doing so, he could still hear further gunshots. At that point, Omar’s body was out of the vehicle. The accused then drove off. He executed a three point U-turn at East Street, drove to Nicholson Street and turned left (north) to drive home. As he did so, he asked Omar why he had brought the gun with him and why he fired it. Omar responded ‘I was only trying to scare him’. The accused drove home to Preston, parked the BMW vehicle and cleaned up. He then got into the rental vehicle and drove it to the MAP, where he arrived at 2:50 pm. However, he was not permitted to enter the prison, because his wife Lara and his two nephews had already done so.

The accused said that at that point, he did not know that Oueida had been shot. He received SMS messages from Oueida, which confirmed to him that Oueida had not been shot. He said that when he spoke with Bassam on the recorded Arunta call later that afternoon, he knew that he could not say much because the call would be recorded. When he referred to the ‘fat one’ in the conversation, he was referring to Oueida. He said ‘something good’ had happened. He wanted to say something bad had happened, but he thought it unwise to do so.

The accused was cross-examined in some detail. He agreed that when he turned left from Nicholson Street into Moore Street, and stopped for 30 seconds, he was in a position to observe Oueida as he walked down Moore Street, but Oueida would not be able to see him unless Oueida turned around. He also agreed that the BMW, while stationary, would have blocked the path of any vehicle wishing to drive west in Moore Street. The accused also agreed that when he first sighted Oueida in Moore Street, his desire to speak to him was such that he was prepared to ignore the wishes and concerns of his wife and to abandon his plan to visit his brother Bassam in the MAP. He said that he felt some anger towards Oueida and he wanted to resolve the issue that was between them. He agreed that it was not a good time to resolve that issue, because he had his wife and two 18 year old nephews with him and they had all been looking forward to seeing Bassam. The accused agreed that the BMW vehicle could not be linked to him by anyone who saw it, because he was not the registered proprietor of it. He did not know if it was stolen. At the time the accused owned a Nissan Navara vehicle, but he was unable to recall whether it was then ‘written off’. He also had a Holden utility vehicle available to him on that day. He said that after he sighted Oueida he telephoned Yousef because he was close to Yousef. He wanted someone with ‘a bit of size and muscle’ to support him. He denied that he telephoned his brother Omar. He said that, at the time, Omar was on drugs, that he would go out for days, and then come home and sleep.

The explanation given by the accused as to why he stopped the vehicle at that point was also quite questionable. There was nothing complicated in the ‘plan’ that he explained to Omar and Yousef Tiba, namely, that when he alighted from the vehicle they should each also be with him and stand next to him. That plan could easily have been explained to Omar Tiba and Yousef Tiba earlier in the journey, or while the BMW continued west on Moore Street.

Based on those considerations, it may safely be concluded that the more probable reason, why the accused halted the vehicle at the corner of Moore Street and Nicholson Street, was to enable him to watch Oueida in Moore Street without himself being observed, and to wait for a suitable moment at which to drive in the direction of, and approach, Oueida.

The next, and critical aspect, of the evidence, concerns the movements of the BMW as it approached and came alongside the Lexus vehicle, at or during which time Omar Tiba discharged the firearm at and in the direction of Oueida. The critical question is whether the movements of the BMW, being driven by the accused, support, or detract from, the inference contended for by the prosecution, namely, that the accused was party to a plan that Omar Tiba discharge the firearm at Oueida.

In considering this aspect of the evidence, a number of points made on behalf of the accused do have some force. First, the BMW did not come to a stop until after the front passenger door of that vehicle had gone past Oueida. The CCTV footage from 93 Moore Street indicates that when the BMW stopped, Oueida was then at or near the rear corner of the Lexus on the off-side of it. At that point, he was opposite the rear passenger window of the BMW. The observations of both Al Janabe and Chaarani were that, in order to shoot at Oueida, from that position, Omar Tiba had to lean out of the window of the BMW and lean backwards. In particular, Al Janabe said that at that point Omar had to lean out of the front passenger window of the vehicle and lean across towards the back of it. He said that Oueida was then about five metres from Omar Tiba. In cross-examination, Chaarani said that when Omar Tiba was shooting at Oueida, ‘more than half of his body was outside the window’. He said that Omar Tiba’s head was ‘nearly to the back door window’, that is, his head was ‘right out of the car’. He said that Omar Tiba’s hand extended further back than his head.

Taking that evidence together, it can be safely concluded that when the accused applied the brakes and brought the BMW to a halt, he had travelled sufficiently past Oueida that, in order that Omar Tiba fire at Oueida, he needed to lean out of the window and lean not insubstantially backwards. As senior counsel for the accused pointed out, such a position was far from optimal if, as alleged by the prosecution, the accused was intending to drive up to Oueida, and to stop in a position that would give Omar Tiba the opportunity to shoot at and wound Oueida.

The prosecution case was that the accused man deliberately braked the vehicle in order that Omar Tiba could shoot at him. In particular, it was submitted on behalf of the prosecution that I should conclude that Omar Tiba did not commence to fire at Oueida until after the accused had brought the BMW to a halt.

In his evidence, the accused said that he had no intention of braking the vehicle when he was alongside Oueida, but rather that his intention was to drive past him and then park further west of the Lexus. He said he only applied the brakes because of, and in response to, the actions of Omar Tiba in unexpectedly shooting at Oueida.

It is very difficult from the CCTV footage to assess whether the first shot was fired before or after the vehicle came to a halt. However, having viewed the relevant part of the footage taken from 93 Moore Street on a number of occasions, it can be seen that Oueida fell at almost exactly the same moment that the BMW came to a halt. In those circumstances, the safer conclusion is that Omar Tiba fired the first shot at Oueida a fraction of a second before the accused applied the brakes on the BMW. That sequence does not assist the prosecution case, and, if anything, it provides some (albeit limited) support for the evidence of the accused as to his actions.

About three or four seconds after the vehicle came to a halt, it then moved forward for a very short distance before braking again. That movement of the vehicle was consistent with the accused momentarily releasing his foot from the brake pedal. It was consistent with the evidence of the accused that, at that point, he was endeavouring to pull his brother back inside the vehicle to stop him from continuing to shoot at Oueida.

Both Chaarani and Al Janabe stated in their evidence that they did not observe the accused intervene in that way and attempt to stop Omar Tiba from firing the gun at Oueida. Each of them said that the accused did not, to their observation, do that. However, their evidence, in that respect, must be treated with some reservation. The shooting happened entirely unexpectedly and very quickly. Al Janabe said that when he heard the gun firing, he immediately took cover behind the Lexus vehicle. In view of the angle of the BMW, and the fact that Omar Tiba’s body would have fully occupied the passenger window, the fact that Chaarani and Al Janabe did not observe the accused intervene at that point does not contradict his evidence that he did so.

In that context, senior counsel for the accused placed some substantial weight on the ballistics evidence. As he pointed out, members of the Echo Taskforce, and ballistics specialists, attended the scene, and searched for evidence of gunfire. One fired bullet was found on the roadway. The timber fence to the premises of 22 East Street sustained one piece of gunfire damage approximately one metre above ground, the angle of fire being at approximately 90 degrees to the fence. Another piece of damage observed was to the metal fence of the premises at 82 Moore Street, that damage being .65 metre above the footpath. The bullet struck the fence at an acute angle. A further bullet was, of course, recovered from Oueida’s abdomen on surgery.

The evidence of the recording of the gunfire, contained on Oueida’s mobile telephone, and the evidence of the witnesses Mr Mirza and Mr Schipano, establishes that there were at least five, and probably six, shots fired by Omar Tiba. There was no evidence that any of those shots had struck the roadway. Further, there was no evidence that any of the shots had occasioned damage to nearby houses or other property. Thus, there were at least two, and possibly three, unaccounted for shots fired by Omar Tiba. As counsel for the accused submitted, a safe inference may be drawn that those shots were fired in the air and consequently had not been recovered.

In my view, the submission made by counsel for the accused as to the spread of the bullets fired by Omar Tiba is sound. The circumstance that one bullet struck Oueida front on in the abdomen, another struck the fence of 82 Moore Street at an acute angle, another struck the fence of 22 East Street, and then at least two further gunshots probably were fired while the weapon was pointed well above ground (and above the neighbouring houses), supports an inference that during that short period in which Omar Tiba was firing the weapon, his right arm was moving quite erratically in an arc. Those movements of Omar Tiba’s arm were consistent with the accused’s evidence that, at that time, he was endeavouring to pull Omar Tiba back into the vehicle. While some care must be taken in drawing inferences in a case in which the incident occurred in a dynamic situation, nevertheless the evidence concerning the spread of the gunfire is consistent with, and does provide some support for, the evidence of the accused that, at that point, he intervened to try to stop his brother from discharging the weapon.

Finally, I should say something about the accused as a witness. Overall, there was no significant contradiction in the evidence given by the accused. His evidence was substantially internally consistent. He made some concessions, including that he could and should have tried to speak to Oueida in Nicholson Street after Oueida had exited the Mosque. That concession, and the manner in which he made it, was to his credit. On the other hand, it did not resolve the question why he did not at that point try to speak to Oueida, if that was his intention.

The accused was basically responsive to questions put to him. He did not make any attempt to evade the questions asked of him, or to obfuscate in his answers to them. I felt that when he explained the steps that he had taken towards reform, and of his desire to succeed in gaining a role in the forthcoming SBS program, he was quite sincere and, if anything, passionate. Overall, I regard his ‘demeanour’, as distinct from the content of his answers, as neither telling for or against acceptance of his evidence.

Conclusion

The critical question, then, is whether the prosecution has proven, beyond reasonable doubt, that at the time at which the accused drove the BMW vehicle up to and alongside the Lexus vehicle, he was then a party to an agreement with Omar Tiba, or he knew and intended, that Omar Tiba would discharge a firearm in the direction of Oueida and his two companions, Al Janabe and Chaarani.

The circumstantial evidence relied on by the prosecution, standing alone, and in the absence of any other explanation, certainly provides respectable support for a reasonable inference that the accused was a party to such an agreement with Omar Tiba, and that he intended Omar Tiba to discharge the weapon at Oueida. In particular, the movements of the BMW after it entered Moore Street, and as it approached the Lexus vehicle, support the inference contended for by the prosecution.

In those circumstances, the critical issue is whether the prosecution has negatived the explanation given by the accused, relating to his actions, as being reasonably possible in all the circumstances.

As the foregoing analysis demonstrates, the initial sighting by the accused of Oueida in Moore Street was quite adventitious. The accused was then driving the BMW vehicle. Thus, no inference can be drawn against the accused from the fact that he was using that vehicle at the time of the incident. Further, the telephone records support the accused’s evidence that he telephoned Yousef Tiba, and not his brother Omar Tiba, after he had caught sight of Oueida. The fact that he summoned Yousef, and not Omar Tiba, to the scene, also tends against the inference contended for by the prosecution.

As I have discussed, it could not be concluded that the accused had any reason to connect Oueida with the Lexus vehicle that was parked on the south side of Moore Street. That consideration is important, because it undermines the contention made by the prosecution that subsequently, when the accused stopped his vehicle after entering Moore Street from Nicholson Street, he was then waiting until Oueida reached the Lexus.

The fact that the accused abandoned his plan to visit his brother, Bassam, in the MAP, and that in doing so he put further strain on his vulnerable marriage, does tend against acceptance of the explanation given by the accused for summoning Yousef Tiba to the scene, namely, that he wished to approach Oueida and speak to him. Nevertheless, the accused did give an explanation as to why he felt a pressing need to speak to Oueida on that day. While I have some reservations about that explanation, they are not sufficient to enable me to be satisfied that his explanation was not a truthful one.

As discussed, after the BMW entered Nicholson Street, and on the two occasions on which it was driving in a southern direction, it is common ground that the accused stopped the vehicle opposite, or just north of, the Mosque, in order to try to locate Oueida. However, I could not infer from those actions that he then knew or believed that Oueida was in the Mosque, as distinct from considering that Oueida might be in the Mosque. Thus, I reject the submission made by the prosecution that the accused then had a ‘ready-made’ plan to wait for Oueida to exit the Mosque, and then follow him to a suitable point in Moore Street. Indeed, if that had been his plan, he could have remained in Moore Street, rather than driving up and down Nicholson Street on two occasions.

As I have explained, the actions of the accused, in making a very slow left hand turn from Nicholson Street into Moore Street, and his actions in stopping the BMW in Moore Street for almost thirty seconds, weigh in favour of the prosecution case. The accused’s explanation for stopping in Moore Street was improbable, although it could not be rejected out of hand.

Finally, the actions of the accused in driving the BMW west on Moore Street and stopping alongside the Lexus, on the face of it, support the prosecution case that he was a party to what then ensued, namely, Omar Tiba discharging the weapon at Oueida. However, as I have discussed, there were a number of features of the evidence, relating to that critical aspect of the incident, which do not support the prosecution case, and which provide some support for the explanation given by the accused as to his actions, namely, that he braked the vehicle in order that he could try to restrain Omar Tiba from further discharging the firearm at Oueida.

In the final analysis, it might be accepted that there are a number of features of the evidence which provide cogent support to the prosecution case. Indeed, if I were to determine this case on the balance of probabilities, I would find in favour of the inference contended for on behalf of the prosecution.

However, as I have emphasised, that standard is not applicable in a criminal trial. Taking into account the matters that I have discussed, I cannot conclude that the prosecution has negatived the explanation given by the accused, relating to his actions, as being reasonably possible in all the circumstances. I am not satisfied, beyond reasonable doubt, on all the evidence, that the explanation given by the accused, for his actions in driving the BMW, was untruthful. Based on the evidence, there remains a reasonable possibility, which I cannot exclude, that the accused was not a party to an agreement, arrangement or plan with Omar Tiba to shoot at Oueida, but rather that he was attempting to approach and meet up with Oueida in order to try to resolve their differences over the debt that Oueida claimed was owing to him.

Accordingly, I am not satisfied, beyond reasonable doubt, that the accused was a party to an agreement, arrangement or plan with Omar Tiba, or that he knew or intended, that Omar Tiba would discharge a firearm at or in the direction of Oueida, and in the direction of or close proximity to Al Janabe and Chaarani.

It follows that I find the accused not guilty of each of the four charges on the indictment. I therefore direct that verdicts of not guilty be entered in respect of each of those charges.

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[2020] VSC 717

29 October 2020