El-Badawi v The Queen

[2021] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

El-Badawi v R [2021] NSWCCA 196

Hearing dates:

24 March 2021

Decision date:

20 August 2021

Before:

Hoeben CJ at CL at [1];
Campbell J at [191];
Hamill J at [217]

Decision:

(1)   Leave to appeal against conviction is granted.

(2)   The appeal against conviction is dismissed.

Catchwords:

CRIMINAL LAW – conviction appeal – wound with intent to cause grievous bodily harm – s 33A(1)(a) Crimes Act 1900 – whether there was a reasonable possibility that the applicant believed that his conduct was necessary in order to defend his sister – if so was there also a reasonable possibility that what the applicant did was a reasonable response in the circumstances as he perceived them – applicant brought loaded pistol to meeting with complainant – reasonable possibility that applicant believed it was necessary to shoot complainant in order to defend his sister excluded – whether verdict of the jury was unreasonable or cannot be supported having regard to the evidence – whether mental element of offence proved beyond reasonable doubt – evidence of witnesses required careful assessment – reliability and credibility issues – unreasonable verdict not established.

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Chidiac v R (1991) 171 CLR 432; [1991] HCA 4

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Dziduch (1990) 47 A Crim R 381

R v Katarzynski [2002] NSWSC 613

R v Nguyen (2010) 242 CLR 491; [2010] HCA 38

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Sivaraja v R; Sivathas v R [2017] NSWCCA 236

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:

Principal judgment

Parties:

Ahmed Mouner El-Badawi – Applicant
Regina – Respondent Crown

Representation:

Counsel:
E Ozen SC – Applicant
K Jeffreys – Respondent Crown

Solicitors:
Abbas Jacobs Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2017/020278

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

26 April 2019

Before:

Armitage ADCJ

File Number(s):

2017/020278

JUDGMENT

1. HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction by a District Court jury on 13 December 2018 of an offence contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act).

2. The indictment presented at trial contained two counts charged in the alternative:

1. on 18 January 2017 at Villawood in the State of New South Wales the applicant did shoot at Abdul Alzaaim with intent to murder Abdul Alzaaim contrary to s 29 of the Crimes Act 1900; and

2. on 18 January 2017 at Villawood in the State of New South Wales the applicant discharged a firearm with intent to cause grievous bodily harm to Abdul Alzaaim contrary to s 33A(1)(a) of the Crimes Act 1900.

Factual background

3. It was the Crown case that the applicant and his brother, the co-accused, were involved in a joint criminal enterprise to shoot the complainant, Abdul Alzaaim. It was the Crown case and it was not in dispute that the applicant shot the complainant. It was not in dispute that the applicant intended to shoot the complainant. It was the applicant’s case that he discharged the weapon in defence of another, namely his sister, Najle El-Badawi. Accordingly, a primary issue at trial was whether the Crown could eliminate the reasonable possibility that the applicant acted in defence of Najle El-Badawi.

4. Following a 17 day trial, the jury delivered a verdict of not guilty of the offence contrary to s 29 of the Crimes Act but guilty of the s 33A(1)(a) alternative. The jury returned verdicts of not guilty in respect of the counts alleged against the co-accused.

5. On 26 April 2019, the applicant was sentenced to imprisonment for 8 years with a non-parole period of 5 years, commencing 28 February 2018.

6. It appears to have been accepted by both the Crown and the applicant that it was apparent from the jury’s verdict that the jury was not satisfied beyond reasonable doubt that the applicant shot the complainant with the intention of murdering him, but that he did shoot the complainant with the intention of causing him grievous bodily harm and did so in circumstances where he was either not acting in defence of another or that what he did was not a reasonable response to the circumstances as he perceived them. Equally, it appears to have been accepted by the parties that by its verdict, the jury was not satisfied, beyond reasonable doubt, that a joint criminal enterprise existed between the applicant and co-accused.

7. The applicant has appealed against his conviction on the single ground that the verdict is unsafe and unreasonable because on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of an offence contrary to s 33A(1)(a) of the Crimes Act.

8. It is the applicant’s case on the appeal that the jury acting rationally ought to have had a reasonable doubt about his guilt in circumstances where the evidence was incapable of eliminating the reasonable possibility that the applicant was acting in defence of his sister and the reasonable possibility that what he did was a reasonable response to the circumstances as he perceived them. It is the applicant’s case that the inconsistencies, discrepancies and inadequacy of the Crown case compels the presence of such a doubt. The applicant submitted that this was so in circumstances where the weight of the evidence overwhelmingly favoured the account given by him that he shot the complainant because he (the complainant) was running towards Najle El-Badawi and while doing so, was in possession of a firearm.

9. The applicant submitted that while it was neither practical nor necessary to recount in detail all of the evidence at trial, it was necessary to consider a number of events which preceded the shooting of the complainant on 18 January 2017. The applicant noted that these events were the subject of extensive evidence at trial and placed in context the actions of the applicant on 18 January 2017. The relevance of this material was said to be the extent to which it informed the applicant’s belief as to the degree of threat which the complainant posed generally and to his sister in particular.

10. The applicant identified the following events as relevant for that purpose:

1. the December wake;

2. the trip to Parramatta;

3. the Georges River event;

4. the visit to the park;

5. the destruction of Najle’s phone; and

6. the incident in the early hours of 16 January 2017.

11. Attached to this judgment and marked as “Annexure “A”” is a list of persons who gave evidence at trial and their relationship to the applicant or the complainant.

12. There were a number of factual matters which were not disputed.

13. The complainant was cross-examined as to his criminal history. At the close of the Crown case, Exhibits V, W, X and Y were tendered. Exhibit V was the criminal record of the complainant; Exhibit W was the sentencing file for his offending in 2012; Exhibit X was the ERISP of the complainant in respect of the 2012 offending. Exhibit Y comprised sentencing material in relation to the 2006 offending.

14. The 2006 offending concerned actions of the complainant in Bondi in respect of which he was charged with the malicious wounding of six people. He entered a plea of guilty and was sentenced to a term of imprisonment of 2 years and 3 months.

15. The 2012 offending comprised the complainant shooting a man in the back. He was sentenced to a term of imprisonment of 5 years. He was on parole in connection with that offence at all times material to this appeal.

16. It was common ground that the El-Badawi family had known the Alzaaim family for “about twenty years”. The children of each family attended the same primary school. Najle gave evidence that she knew the complainant’s sister, Eman, who was in the same year at school as Najle. Layla and Ibtisam (the mothers of the applicant and complainant respectively) thereafter maintained a friendship.

17. The complainant was diagnosed with testicular cancer in April 2016. He commenced chemotherapy in about August 2016. Upon returning from chemotherapy one day in August or September of 2016, he found Najle and Layla in his home, visiting his mother. At the time, the complainant resided with his mother and father in Alcoomie Street, Villawood. Thereafter, Najle and the complainant “commenced a friendship” and exchanged telephone numbers.

18. Within a couple of days of that first meeting, Najle and the complainant communicated by text message. Very soon thereafter, the complainant proposed marriage to Najle who accepted his proposal. What was referred to by the complainant as an “Islamic marriage”, followed on 27 November 2016. It is elsewhere referred to as a formal engagement ceremony. The purpose of the ceremony was to formalise the relationship.

19. During the ceremony, rings and gifts were exchanged. The El-Badawi family brought the complainant a wrist watch and the complainant’s family brought Najle a jewellery box. The wrist watch was valued at $3,900 and a ring that was bought for Najle was valued at $3,100. The jewellery box contained a gold necklace, a gold bracelet, a gold ring and gold earrings. It was valued at approximately $1,500. A separate engagement ring (different to the one in the jewellery box) had been purchased for $10,700. All of the items in the jewellery box were made of 24 karat gold.

20. On and from the date of the ceremony on 27 November 2016, the relationship deteriorated. Asked in examination in chief about the relationship from that date, the complainant said:

“... I couldn’t trust her at all. She was just lying to me constantly, and I just – just the lies kept on unravelling by themselves, and I was just finding out more and more stuff along the way, and just before the marriage. It was like I was getting signs that, like, to move away from this family.” (T227.20-.24)

Communication between Najle and the complainant reduced following the ceremony:

“... the visiting and spending time decreased a lot, like, from spending every single day at chemotherapy, after chemotherapy spending all that time together that we weren’t engaged, to getting engaged and not spending no time at all.” (T227.28-31)

Events preceding the critical incident

The December Wake

21. Najle El-Badawi gave evidence about a wake which the complainant attended in Waterloo Road in Greenacre. She said that the complainant telephoned her and said “I need you to pick me up from this location, right now”. The complainant said that the matter was urgent. When Najle picked him up, he said “Drive, I need you to drive, but be really --, don’t speed”. He also said “Drive safe. Don’t get pulled over by a police officer”. He refused to answer her questions and she described his demeanour as “erratic”.

22. When they arrived at his home, the complainant said “I need you to wait a few minutes. I’ll be back”. She described his demeanour on his return as “he was acting like he had a sigh of relief”. When Najle asked him “what was that about?” He told her “I had to take my hadeeda with me”. This was the first occasion on which the complainant had mentioned to her anything about a “hadeeda”. She said to him “What is a hadeeda?” to which he responded, “ Don’t you know what a hadeeda is? It’s a gun”. (T 737-T 739)

23. When the complainant gave evidence about this event, he agreed that such an incident had occurred but denied that he said “Quickly, take me home”. He denied that he went into the house upon arrival at his home and then came back out. He denied telling Najle “I had to take my hadeeda with me. There were people there”. He denied that he said “that it was some ... issue with a member of a family at Goulburn gaol”. He denied making any mention at all of a “hadeeda”. It was his evidence that he asked Najle to pick him up “because I didn’t want to be there no more” (T 576-578).

The trip to Parramatta

24. Najle gave evidence of an event which occurred in the “second half of December”. She said that she picked the complainant up from his home and drove him to Parramatta. The complainant said that he “needed to pick something up”. When they arrived at Parramatta, she stayed in the car while the complainant went inside a prayer hall. She gave the following evidence about his return to the vehicle:

“[He] entered the car from the passenger’s side. Upon entering, he closed the door. He, he took something out from under his jumper, and it was, I just remember it being an item wrapped in white fabric, and then he turned to the back of that seat, the passenger seat, and it’s like he bent, like, he kneeled down and placed it under the seat. And he said, “Drive me home. Drive slow. Please don’t get any attention. Drive me home”. And he was acting very strange.” (T 748-749)

25. Najle said that when they arrived at his home, he went into the house for about five to ten minutes. When Najle asked “What’s going on, what’s going on?” he said “It was my hadeeda” and she said to him “What do you mean? What’s happening with you” and he said “It’s my hadeeda”. It’s the last of four. It’s the last one. I just got rid of it for 15 thousand.” The following exchange then occurred between the Crown and Najle:

“Q. Sorry, the last of four, you say?

A. Four guns.

Q. Did he mention the word guns?

A. He didn't say gun. He said hadeeda.”

26. When Najle asked him “What was that Parramatta trip about?” he said “I had to pick it up from there. That’s where I kept them.”

“Q. Okay.

A. And previous to that I kept them at my ex’s home, Carla” (T 749).

27. When the complainant was cross-examined about this event, he said that he went to Parramatta to look at an apartment block. He said that he decided not to proceed when he found out information about the apartment block. In cross-examination he said that “bad people live there” (T 580-581).

28. He said that he left Najle in the car for that reason. The complainant denied that he went straight home from Parramatta because he needed to get something to his home as quickly as possible. The complainant denied that upon arrival at his home, he removed an item from under his car seat and took it into his house. He denied telling Najle “It was a hadeeda I’m selling to make some [cash]”. He denied any mention of a “hadeeda” (T 584-585).

The Georges River Event

29. Although not specified as to time, it was common ground that there was an occasion when the complainant contacted the applicant and asked him to pick him up from his home. The applicant obliged. The complainant agreed that when the applicant arrived at his home, he directed him to the Georges River (T 405).

30. The complainant agreed that the purpose of the trip to the Georges River was to discuss with the applicant his concerns with Najle’s continued use of social media, notwithstanding their relationship. The complainant agreed that he wanted “to have a conversation with [the applicant] in order to get Najle to do what [he] wanted” (T 574). The complainant denied that upon his arrival at Georges River, he pulled out a black pistol from around his waist. He denied that he placed the pistol in the glove box. He denied that upon returning to his home in Alcoomie Street, he removed the firearm from the glove box, returned it to the front of his pants and went indoors (T 575-576).

31. The applicant gave evidence that the complainant was “very agitated”, was swearing and was “getting rowdy”. The applicant said that the complainant “pulls a gun, a black pistol out of his – the front of his waist, opens my glove box and throws it in, closes it”. The applicant said “We didn’t talk about what I just seen or witnessed or nothing”. The applicant said that he thought the complainant had put the pistol into his glove box “to intimidate me and it did” (T 1032-1033).

32. The applicant said he went home and told Najle “Look, you have to leave this guy as a matter of priority, this guy is not normal, just pulled out a gun”. He recalled that Najle said “... I know about - I know about his guns, I just didn’t tell you anything about it because I didn’t want to scare you any more than I had to” (T 1034).

33. The complainant gave evidence that he contacted the applicant to tell him that he did not want to be with Najle (T 403). The applicant picked him up and the complainant directed him to Georges River. The complainant told him that he did not like Najle being on Facebook and Snapchat and that he wanted the applicant to get her to do what he wanted (T 574). The complainant gave evidence that they consumed drugs together (T 405) with the complainant using marijuana and Valium. The complainant denied having a pistol and placing it in the glove box as asserted by the applicant.

The Incident in the Park

34. Najle gave evidence of a deterioration in her relationship with the complainant towards the end of December. She said that there were “multiple issues that arose ...” and that the complainant would accuse her of cheating on him. Najle gave evidence that the complainant “kept threatening me and, you know, being erratic”. She gave evidence that he would then be really nice to her and that his mood kept going up and down (T 734).

35. Najle gave evidence of an occasion when she drove to the complainant’s house and drove him to a nearby park. She described his mood as “eerie” and “strange”. She gave evidence that when she got close to him, he became really “loud and erratic”.

36. Najle gave evidence that the complainant put the hood of his jumper on his head, and put on gloves and said “Where do you want it?” (T 734). Najle said that at first she did not know what the complainant was talking about. He then asked “Where do you want the bullet?” and said “I’m knocking you tonight”. When Najle asked him “What are you talking about? What’s wrong with you? Are you on something?” she recalled that he responded by saying “I’m sick of the lies. I’ve told you if you lie to me I’ll kill you. I’m going to kill you tonight. Where do you want the bullet?” She recalled he said “I have my hadeeda with me” (T 734).

37. Najle said that she was pleading with the complainant and started to cry. She was in the park with him for about half an hour. She said that “... after pleading with him, he walked home” (T 736) and she drove home.

38. The complainant denied that this event occurred. He denied that he had asked her to drive to the park. He denied saying to her “Where do you want it?” and “I have my hadeeda on me and I’m knocking you tonight” (T 606). He accepted that he was wearing a pair of gloves and that Najle asked him on one occasion “Why have you got gloves on?” to which he replied “I lift my body weight [on] metal so it rubs on my hands and I get callouses and blisters”. The complainant denied that Najle was shaking and crying.

The destruction of Najle ’s phone

39. Najle gave evidence that on the morning of 15 January 2017, the complainant rang her saying “I think you’re cheating on me ... I need to see something in your phone” (T 750). Najle went to his house. He snatched her car key and phone and went into his room where he opened her Facebook page. Najle asked that her phone and car keys be returned. The complainant screamed names loudly and banged her phone against the wardrobe until it broke into pieces (T 751-752).

40. Najle described it as a loud incident with angry shouting and that the complainant was in a rage in front of his parents, who were trying to settle him down. Mr Alzaaim managed to return Najle’s car key (T 752) and he encouraged her to leave (T 837). As she was leaving, the complainant got his hands on an axe. His parents tried to restrain him and he ran from his mother with the axe as the complainant drove away (T 752-753). Najle called a friend, Tagrid Yassine, from a pay phone and met her in Burwood. Tagrid advised Najle to go to the police. Najle gave evidence that she was too frightened to do so as the complainant had told her about an incident when he intimidated his brother’s ex wife’s family after they reported him to police. She said that the complainant also threatened to kill her if she went to the police and boasted about having shot someone in the head (T 753-755).

39. At about 12:00 to 12:30pm on the same day, Najle had a conversation with the complainant through a friend’s Facebook page. In those exchanges (which are Exhibit 6), Najle explained a fake Facebook profile and said “we are clearly over, we will sort out the divorce in a few weeks when everything calms down”. The complainant replied, calling Najle a liar and saying, “Like I hope u die drowning”. He also said he would buy her a new phone. Najle did not tell the applicant what had happened to her phone (T 842).

40. Khola and Sarah El-Badawi (the applicant’s sisters) and Lena Sabra (the applicant’s neighbour) gave evidence that Najle told them that day that the complainant had broken her phone. Khola and Mrs Sabra also said Najle told them that the complainant had chased her with an axe.

41. The complainant gave evidence that he called Najle one morning and asked her to come to his house. He looked through the messages on her phone, in accordance with a rule they had. He accessed her Facebook page and saw that males were commenting on a photo. Najle snatched the phone and said she wanted a divorce. The complainant gave evidence that he was very upset. He took her phone and threw or banged it on the wall, causing it to break. He told her to get out of his house (T 228). When the complainant walked out of his room, his mother asked about the noise. The complainant said that he had just broken Najle’s phone and that she wanted a divorce.

42. Najle went to a friend’s flat and called him through WhatsApp from that friend’s phone, and he started swearing (T 229). The complainant denied that he had ever communicated with Najle on Facebook and suggested someone had opened an account in his name (T 612). He said he barely used his Facebook account, though he may have messaged Najle on Facebook messenger, which he accessed separately to Facebook. The complainant said the phone incident did not occur on 15 January 2017 but a couple of days earlier.

43. Ibtisam Alzaaim gave evidence that she did not remember the complainant smashing Najle’s phone, though she remembered Najle and the complainant being upset and saying they would not continue with each other. Mrs Alzaaim said she did not know if her husband gave Najle her car key, but the axe incident did not happen (T 134, 146).

44. Mohammed Alzaaim gave evidence that he did not know that the complainant had smashed Najla’s phone, he had never seen her car key and never saw the complainant chase her with an axe (T 510). He did not remember hearing a bang or raised voices at his house (T 509-10). When he rang Najle’s sister later, rather than Najle, it was because Khola had called him using that number (T 511).

Incident on 15 - 16 January 2017

47. It is uncontroversial that this event occurred. It occurred in the early hours of 16 January 2017 when the complainant arrived at Najle’s home and repeatedly demanded that Najle return with him to his home. Evidence was given by a number of witnesses about what occurred and what was said. There was evidence from some of the witnesses that the complainant was enraged, screaming and behaving violently. There was also evidence that he made threats to kill Najle at that time.

48. The applicant gave evidence that the complainant called him at about midnight on the night of 15 -16 January 2017, wanting to see him (T 1035). The applicant picked up the complainant, who asked to be taken to Najle. The applicant called Khola’s phone and spoke to Najle who said “don’t bring him here”, or “don’t you dare go near him”. The applicant then called again to tell Najle to come outside. The applicant said he drove the complainant to his home as requested. The complainant was a “bit on the agitated side but he was relatively okay” (T 1092).

49. When Najle came out of her house, the complainant started screaming and shouting at her, and it continued for hours. He was shirtless, jumping up and down, punching and kicking the trees, and screaming. The complainant’s parents arrived and tried to intervene and the complainant assaulted them (T 1038). The applicant knew the co-accused was at home in bed, but he did not want to leave his sisters to wake him, even though the co-accused was a much bigger man than him or the complainant (T 1102). At one point, when the applicant had his back to the complainant, he heard a loud noise, turned and saw Mr Alzaaim on the ground and Mrs Alzaaim trying to push the complainant off him. The complainant was making threats saying that Najle had to go with him under Sharia law. Najle was saying “I divorce you” and that she wanted nothing to do with him. The complainant’s parents were blaming the “poison” he was on. The complainant kicked his father on the ground and was pushing everyone around (T 1039).

50. During these events, the applicant was struck on the head or back by a door and afterwards he could not breathe and thought he was experiencing a panic attack. The applicant felt pain in his chest, stomach and back (T 1096). When ambulance officers arrived, only Mr Alzaaim spoke to them. The applicant was not in a position to speak. He was taken to hospital, but as soon as he could breathe unassisted, he left. The applicant was angry after these events (T 1041-1042). He did not see the complainant with any weapon that night but was told afterwards about the complainant grabbing a knife from the kitchen (T 1101).

51. Najle El-Badawi gave evidence that at about 12:30 to 1:00am that night, the applicant called her on Khola’s phone and told her that the complainant needed to see her immediately. In a second call he told her to come outside (T 757). When Najle went to the door, she saw that the complainant was angry, sweating, swearing and yelling out names, including a threat to kill her and wipe out her family one by one. The applicant told him to calm down. The complainant also threatened to wipe out the family one by one if anyone called the police, telling them to “ask Najle ... what I’m capable of”. Najle called Mrs Alzaaim and the complainant’s parents arrived within minutes. The complainant tried to punch Najle in the face multiple times, but she managed to block every blow with her arms, causing swelling. The complainant pushed his father to the ground and screamed very loud threats. The co-accused remained asleep in his bedroom at the back of the house but Mrs El-Badawi eventually woke him up.

52. At one point, the complainant pushed the metal security gate on the porch against the applicant, hitting the back of his head. Najle called an ambulance. The complainant drove off briefly but then returned. He said that if anyone directed the police to him, “you know what happens” and went inside the house. A police car arrived and the officer asked if everything was okay.

53. Najle and her sisters said nothing but Mr Alzaaim took one of the officers aside. The police left soon after (T 768). Najle and her sisters went inside and Najle saw the complainant in the living room, with no pants on, still swearing and making threats.

54. She did not see him with a knife. Najle said that the complainant was at the house from about 12:45am to 4:00am, shouting the whole time. At one point, he pulled his pants down and attempted to expose his penis to her youngest sister, Sarah. On another occasion, he said “I’m marrying you tonight” and told her to leave immediately. That night he returned the watch, which had been one of the gifts at the engagement ceremony.

55. On the night of 17 January 2017, Najle exchanged text messages with a close friend (Exhibit 11, T 1016). In the exchange, Najle said:

“He was angry and high on drugs ... He smashed my phone cause he couldn’t handle that he’s suspicious and didn’t find anything ... Then later on midnight ... Came to my house ... Sweating and shirt less ... Raging at me and my whole family ... Hit me ... Hit my brother ... Abused my sisters ... My arm still swollen”.

56. Khola El-Badawi gave evidence that she received a phone call from the applicant at about 10:00pm to 12:00am and handed the phone to Najle (T 941). Khola went outside when she heard yelling. The complainant had no shirt on. He was sweating, shouting, going crazy, jumping up and down, threatening and calling her names. Khola picked up her phone to call triple-0, and the complainant said “Put the phone down, I’ll finish youse all off” (T 942). The complainant repeatedly threatened to kill them, including threatening to set the house on fire when they were asleep (T 955). He also said he wanted Najle to go home with him that night (T 948). He kept hitting Najle, punching her body and shoulders. He tried to aim for her face but she blocked him with her arm. He tried to kick her and he hit her back shoulder (T 948-950).

57. Khola said that this continued for four hours. The complainant kept punching the applicant in the chest with his fists, making contact many times. When Sarah came out, the complainant said he would show her who a man was and tried to pull down his pants. He threatened to kill Sarah. He grabbed Najle’s upper body. He kept saying “I want Najle, I want to kill Najle. Where’s that dog” (T 953-955). He slammed the metal gate into the applicant’s head and the applicant fell to the ground. Khola was not sure if it caught the applicant across the chest/body area. The complainant pushed his father to the ground and hit him (T 957). This continued for 30 to 40 minutes, then the complainant drove off trying to run the family over, and returned, driving back down the street in reverse. He threatened to kill them all if they told the police he was inside. He ran into the house, grabbed a knife from the kitchen and said “if you tell them I'm inside, I’m going to slaughter youse”.

58. He took off his clothes, walked around in his underwear and then had a shower. He was saying that he wanted Najle to go home with him and “I’m going to end her tonight” (T 969). Khola denied encouraging the complainant to go inside the house when the police arrived.

59. Sarah El-Badawi gave evidence concerning that night. She said that the complainant was shouting and screaming. She thought that he had hit Najle. He pulled his pants down “to show her a man” (T 1140). She said that he swung his arms at his father and that his father fell down when he dodged the blow. Sarah made an audio recording of part of the incident (Exhibit 4 with the translation being Exhibit 5). While the transcript amounts to three pages only, there is no mention in it by the complainant of killing or harming anyone.

60. Sarah said the complainant drove to the top of the street, turned and came back. She thought he was going to drive into them. He said that the police were coming and if anyone said anything to them “I’ll kill youse” (T 1142). When she was inside the house, Sarah saw the complainant walk out of the kitchen with a knife and take off his clothes and have a shower. When he left, she said that the complainant screamed “You’ll regret this”. She said that he repeatedly said “I’ll kill you, I’ll burn you” (T 1153).

61. Lena Sabra, a neighbour, heard a male screaming next door at about 2:00am. She had been asleep until then. She saw the complainant shouting, screaming and swearing and running up and down. Ms Sabra gave evidence that the complainant said that he wanted to kill Najle. He had no shirt on and was sweating. She saw the complainant physically pushing his parents away from him (T 1191), but did not see him strike the applicant or push, kick or punch his father. She saw him push Najle and try to grab her, but did not see him hit her (T 1204). The complainant drove up the street and returned, threatening to kill anyone who told the police he was inside.

62. The complainant gave evidence that the applicant picked him up between 10:00pm and 12:00am and drove him to Bright Street (the home of Najle and the applicant) to see if they could talk it out and finalise things. (This was a reference to the return of gifts which had been exchanged at the engagement ceremony.)

63. He gave evidence that when he arrived at the house, he gave Najle an ultimatum, to the effect that she had one more chance to continue the relationship if she complied with his rules. He gave evidence that arguments then started, which involved continued demands and the shouting of obscenities, principally by him. He stated that he was emotional and upset and he overreacted (T 622). The complainant said that he was there for about 40 minutes to an hour, and that he had given the watch back to the applicant.

64. He said that after about 20 minutes of verbal arguing, Najle contacted his parents and they arrived not long afterwards. He gave evidence that the applicant started having heart complications as a result of which an ambulance was called.

65. The complainant said that when the ambulance was coming, he got into the car, drove away but did a U-turn and returned. He said that Najle screamed to her mother to let him hide from the police inside the house. He stayed inside until the police left, after having had a shower to cool down.

66. The complainant said that he had pushed the applicant so that he landed on something that stopped his fall, but he had held himself back from a physical altercation with the applicant. He admitted that he got a bit worked up and screamed a couple of times. The complainant denied any physical contact with his father or with Najle. He said that the only violence that occurred involved him pushing the applicant.

67. The complainant denied threatening to kill Najle and her family, hitting the applicant with the security door, taking a knife from the kitchen and pulling down his pants. He said that as he left, he apologised to Mrs El-Badawi for the commotion and told Najle that he had made a prayer that she would never be happy for the rest of her life (T 235).

68. The complainant’s father gave evidence that he and his wife went to Bright Street after Najle rang them (T 481). When they arrived, the complainant was telling Najle to go home with him. When Najle said that she did not want to go, the complainant became upset (T 482). The complainant was pushing everyone away, including him (his father) and the applicant, in order to speak to Najle. Mr Alzaaim said that the complainant did not push him to the ground, did not touch Najle, did not pull his pants down and did not hit the applicant with the screen door.

69. Mr Alzaaim said that applicant was saying “She’s going to stay here” and had his hand on his chest as a result of which an ambulance was called.

70. When the police came and asked what happened Najle’s sisters said that there was an argument between the complainant and Najle. The police asked if there were any problems and Mr Alzaaim said that there were not. The police left after five minutes.

71. The observations of Mr Alzaaim were supported by the evidence of his wife. She agreed that the complainant was upset and raising his voice when she and her husband arrived. She said that the complainant was upset because Najle was telling him that she was not going back with him. Mrs Alzaaim denied that there was any physical altercation or that the complainant had threatened to kill anyone if the police were called. She said that the applicant and the complainant were talking to each other and shouting about Najle not going with the complainant. She did not see any incident with the security door, but saw the applicant sit between two trees and say “My heart”.

72. While there can be no doubt that some incident occurred on the evening of 15-16 January 2017, the detail is unclear. The complainant was at the heart of the disturbance and appears to have been the person making most noise and on the testimony of some witnesses making threats. It also seems that for part of the time at least, the complainant was trying to persuade Najle to accompany him to his home.

73. What is equally clear is the significant contrast between the description of events given by Khola when compared with that of her sister Sarah and the neighbour, Ms Sabra. The description by Khola to the effect that the incident lasted four hours and other detail provided by her is not otherwise supported even by Najle. The only objective evidence relating to that evening comes from Exhibits 4 and 5, which comprised an audio recording and its transcript, made by Sarah and which does not support the description given by Khola.

74. What also seems clear is that not only was the complainant the instigator of the incident and was the person making most of the noise but that in some way which is not entirely clear, the applicant was injured and was for a period of time taken to hospital with chest and similar pains. There is conflict in the eye witness accounts as to what, if anything, was done by the complainant to harm the applicant.

Events of 18 January 2017

75. By way of further background, there is considerable reference in the evidence of many of the witnesses concerning the return of the jewellery. It was not in dispute that following the events of 16 January 2017, the relationship between the complainant and Najle was at an end. Gifts had been exchanged between the two and the complainant wanted the items he had gifted to Najle returned. While initially they were returned to the complainant’s family, the complainant’s mother considered that Najle should have retained particular items. She accordingly arranged for them to be returned to Najle by her husband (T 112-113). It was common ground that the complainant was enraged by that decision and it is against that backdrop that the events of 18 January 2017 occurred.

76. The witnesses to the subsequent events called in the Crown case were the complainant, Mohammed and Ibtisam Alzaaim, his aunt and uncle, Hanadi and Mustapha Dennaoui, Najle El-Badawi and her younger sister, Khola. The applicant gave evidence and called evidence from his younger sister, Sarah, and his neighbours, Isaac and Lena Sabra. The co-accused did not give or call evidence but had participated in a police interview (admissible only against him).

77. There was evidence before the court from Dr Tucker, an astrophysicist, who had conducted calculations to determine the time of civil and astronomical twilight at the latitude and longitude of Alcoomie Street, Villawood where the shooting occurred. The purpose of the calculations and his evidence was to determine the natural light present at about the time the applicant discharged his firearm. Dr Tucker concluded that sunset occurred at 20:09 hours (T 351) and civil twilight occurred at 20:37 hours. Civil twilight is the moment the sun reaches six degrees below the horizon. From the time of civil twilight and continuing until astronomical twilight “there is light scattering in the atmosphere” (T 351). Astronomical twilight occurred at 21:48 hours. Astronomical twilight is the moment the sun reaches minus 18 degrees below the horizon. Dr Tucker’s evidence was that from the time of astronomical twilight “there is no effect of sunlight scattering on the earth’s atmosphere” (T 351).

78. The complainant gave evidence that he was upset when his mother told him on the evening of 18 January 2017 that a ring had been returned to Najle. As a result, he drove straight to Bright Street in his mother’s car at about 6:00 to 7:00pm and was still very upset when he arrived (T 237). On his arrival, he started yelling that he wanted the ring, the gold and the watch (T 641). He told the co-accused that Najle had half an hour within which to return the watch, ring and jewellery. The complainant agreed that he was “screaming a bit” and that he has a loud voice when he screams. The co-accused said that he would see the complainant in half an hour with the property (T 240).

79. The complainant said that when he returned to Alcoomie Street, he was particularly upset and sweating. He cooled down with some water and went outside to wait. He said that because he was sweating so much, he took off the shirt/singlet which he was wearing and let it hang in front of his shorts, using it as a towel when his face was sweating (T 241). The complainant gave evidence that not long afterwards he saw the silver Mazda, belonging to Mrs El-Badawi some distance away. As the vehicle drove away, Najle opened the passenger window and screamed out “We’re coming with everything. Don’t worry, you’re going to get all your stuff back” (T 244, T273).

75. The complainant gave evidence that when the applicant and the co-accused arrived in Alcoomie Street in a silver Mercedes, the complainant’s father and uncle were with him. The Mercedes pulled up across the road from his parents’ house. The complainant was told (probably by his uncle and father) that the property had been returned (T 251, T 645). The complainant went inside the house to check and found that a watch and a ring were missing. He became upset. He went outside and asked the applicant about the watch. He said “Your sister wants to be a money hungry dog so that’s why I want everything back now. I would’ve settled with what it was at first but now I want everything back. Where’s the watch and the ring?” The applicant replied “You’re not getting the watch back” (T 254). There was further conversation about the watch.

76. The complainant noticed that Najle had exited from her mother’s car and had walked a metre or two. He said that he marched over to her screaming “Where’s the rest of my stuff? Give me the rest of my stuff and get the f**** out of my life”. He denied running (T 256) and denied threatening to kill her (T 267). He said he covered about 20 metres towards Najle and did not get within 10-15 metres of her. He said that Najle jumped back in the car and it drove away (T 267-268).

77. The complainant said that as Najle drove away, he pulled out the singlet and wiped his face, but he denied reaching into his waist band while running towards her (T 274) and denied having anything in his hand (T 649). The applicant got out of his car screaming something about his sister. The complainant heard a gunshot and felt the bullet strike his shoulder. He then heard a couple more gunshots. The applicant at the time was less than 10 metres from the complainant, holding a gun with both hands away from his body (T 257).

78. The co-accused came up to the complainant and said “You wanted me as an enemy ... now you’re dying ... keep praying because I’ll save my last prayers ...”. The complainant’s father phoned the police and an ambulance as soon as the applicant and co-accused drove away (T 275).

79. Ibtisam Alzaaim, the complainant’s mother, gave evidence that on the afternoon of 18 January 2017, she told the complainant that the ring had been returned to Najle. The complainant was very upset. He left to get the items back, telling his mother to call the El-Badawis and tell them he was coming to get the gold. Mrs Alzaaim rang her husband, the applicant’s mother Mrs El-Badawi, and her sister, Mrs Dennaoui.

80. Mrs Alzaaim asked her husband to follow the complainant, because they did not want any trouble and she told Mrs El-Badawi to give the complainant everything he asked for.

81. Mrs Alzaaim asked her sister to come over because she was upset, and she was worried about the complainant’s health because of his chemotherapy. Mrs Dennaoui and her husband arrived about 8:30pm. When it was dark, Mr Alzaaim came home with the complainant and said the El-Badawis were coming to bring the property.

82. Mrs Alzaaim remained in the house and closed the shutters. The complainant later brought the jewellery inside the house, put it on the table and said “Have a look at them. Is that all of them?” Mrs Alzaaim said everything was there except the watch. The complainant had a drink from the fridge and went outside calling out “Ahmed”. Mrs Alzaaim denied that the complainant put anything down his pants. Two or three minutes later, Mrs Alzaaim heard three shots.

83. Mohammed Alzaaim gave evidence that he received a call from his wife to say that the complainant was very upset about the property being returned to Najle and he went to Bright Street, arriving about 5:30pm (T 426-427). He went there so there would not be arguments, as there had been two days earlier. When he arrived, the complainant was not there, but the applicant told Mr Alzaaim that the complainant had come to take his watch, and that Najle had told the complainant she had sold it on Gumtree. Mr Alzaaim was going to take the jewellery to give to the complainant, but the co-accused said “we want to quieten him down” (T 427-428). Mr Alzaaim had not mentioned the co-accused’s comment in his statement to police (T 487).

84. Mr Alzaaim went home to Alcoomie Street and found the complainant with Mr and Mrs Dennaoui in the front yard. In his statement, Mr Alzaaim said the complainant was “very crazy and upset” (T 488). The complainant asked his father why he had not brought the watch back and Mr Alzaaim said he would buy him a better one. The complainant at this stage was wearing no top and had his singlet tucked into his shorts (T 431-432).

85. When the Mercedes arrived, the applicant got out and shook hands with the complainant. The co-accused gave him the jewellery and the complainant asked where the watch was. One of the accused replied “no watch” (T 439). The complainant went quickly into the house, then came back and asked where the watch was. The applicant said “that watch is not yours” (T 440). The complainant was shouting “where is my watch?”

86. Mr Alzaaim then saw Najle approaching. The complainant ran towards her, carrying a bottle of water (T 441). Mr Alzaaim was screaming “Go, Najle, go”, encouraging her to get in the car (T 492-493). He said the complainant did not have a chance to speak or yell to Najle (T 537). Najle got into the car and it drove away, and the complainant threw the water bottle on the ground. Mr Alzaaim said that when this occurred, the co-accused said to the applicant “Get him now” (which Mr Alzaaim did not mention in his first statement (T 439) or to Detective Sutherland at the scene (T 554)).

87. Mr Alzaaim said that at some point the applicant was running as he was shooting (T 545). After the complainant was shot, Mr Alzaaim saw the applicant holding the gun in two hands and asked him “What have you done?” The applicant said “He got my sister” and said to the complainant “Don't talk to my sister again” (T 441) or “Why are you talking to my sister?” (T 541).

88. Mr Alzaaim ran to the complainant and immediately rang for an ambulance and was told to stay on the line. The ambulance officer was talking to the police. Mr Alzaaim said there was no gun or weapon on the complainant (T 446) and nothing in his hands (T 542). Mr Alzaaim said that the co-accused approached, put his foot on the complainant’s head and said “Why are you talking to my sister?” and “say the Shahada” (a prayer to be said before dying) (T 443-444). (Mr Alzaaim had not mentioned the Shahada in his statement (T 493)).

89. After the ambulance had gone, Mr Alzaaim went inside the house to tell his wife not to be scared as it was “only a little thing” (T 540). Mr Alzaaim remembered that when the shooting occurred, it was about 7:00-7:30pm and still light (T 455).

90. Hanadi Dennaoui, Mrs Alzaaim’s sister, gave evidence that she arrived at Alcoomie Street with her husband at about 9:20-9:25pm, having been called by Mrs Alzaaim, who was very upset (T 93). Mrs Dennaoui went inside, while her husband stayed outside. After a little while, the complainant and Mr Alzaaim entered the house. The complainant was upset and said in a slightly raised voice “I want my things. Where are my things?” (T 94-95,102). He had a drink of water. One of them put some jewellery boxes on the table (T 102). The two men went back outside, and a little while later, Mrs Dennaoui heard two or three shots. Mr Alzaaim came inside and said not to worry as it was “only a little thing”. Mrs Dennaoui followed Mr Alzaaim back outside and saw him on the phone (T 96). She knew he was speaking to the ambulance or police because he was giving the address. Mrs Dennaoui thought it was very dark at that time.

91. Mustapha Dennaoui said that he was inside the Alcoomie Street property with his wife and Mrs Alzaaim when the complainant entered the room. Mr Dennaoui went out the front to calm the complainant (T 358), who was very angry and irritated. Mr Dennaoui did not see Mr Alzaaim until after the complainant was shot. Before then he had only seen him from a distance (T 360). When the applicant and the co-accused arrived, Mr Dennaoui went to talk to them in the car and tried to tell them he would fix things up if they handed over the belongings. Mr Dennaoui said there was no conversation between the El-Badawis and the complainant before the shooting (T 361, 393), except that the complainant did ask the co-accused about the watch and was told he could not have it back (T 394).

92. Mr Dennaoui did not see anything handed over and did not see the complainant go inside the house and return (T 379). Mr Dennaoui saw Najle drive past, turn around and drive again in front of the complainant. Najle was driving on her own. The complainant followed her, running, but could not get close to the car (T 361-362). He did not threaten her, and nobody got out of the car (T 383, 385).

93. The complainant followed Najle and they started shooting from behind: the applicant fired a few shots, then got closer and shot again (T 362-363). Mr Dennaoui did not nominate the applicant as the shooter until the week before he gave evidence in the trial. He said that this was because he had been afraid to tell the police (T 375). After the shooting, Mr Dennaoui went quickly to the complainant to calm him down. He did not know where Mr Alzaaim was. One of the accused hit the complainant with a shirt, telling him to say the Shahada (T 363). Mr Dennaoui said that he had forgotten about the Shahada when he made his police statements (T 390).

94. The applicant gave evidence that he made his way to Bright Street after Najle had told him that the complainant was on his way there. On arrival, his sister Khola told him the complainant wanted his property back and that if it was not returned, he was coming back to wipe them out one by one (T 1051-1052). The applicant understood that they had 30 minutes to return the jewellery. He did not remember hearing anything about a watch. The applicant said he was scared and went inside quickly. He took a firearm from the top of a cupboard in the garage. The pistol had belonged to his father (who died in 2012), for animal control on properties they had had in Badgerys Creek and Kemps Creek. The ammunition was inside the firearm, in the magazine. The applicant had been to a shooting club three or four times in 2014 (T 1052-1054), where he used the club’s pistols. He assumed that there were bullets because he could see one in the tip of the magazine (T 1068). He put the clip into the pistol. The firearm was located with a few of his father’s belongings and only he knew it was there (T 1054).

95. The applicant would “muck around” with the firearm as a kid and he had last seen it in 2013 (T 1066). He was aware it had a safety catch on the handle that automatically released when you push your palm into it (T 1066). The applicant was wearing shorts and put the firearm around his stomach area (T 1054). He believed that it was held in place by his belt and that no part of it was visible. He and the co-accused left with the jewellery.

96. When they arrived at Alcoomie Street, the applicant parked opposite the complainant’s house and saw the complainant with friends, his uncle and father. The applicant got out of the car and either he or the co-accused handed the complainant the jewellery. The complainant immediately asked aggressively where the watch was. The applicant told the complainant “You didn’t buy the watch” (T 1057) and asked him to leave the family alone and not come back to their house. The complainant went inside the house while the applicant got back into the car.

97. The complainant came running back after one or two minutes. He had no shirt on and a piece of cloth “wrapped up in a way where something was in it”. He was screaming for his watch (T 1058). There was material sticking out of his shorts (T 1117). The complainant said “If you’re a f***ing man, come to the park. I’m going to do you now”, shaking the belt area of his pants to indicate that he had a gun. The applicant did not, however, see a gun. He described the complainant as loud and enraged.

98. The applicant saw Najle walking and was panicking. The complainant said to Najle “You f***ing rat. I am going to kill you. You’re dead” and started running. Mr Alzaaim ran after the complainant saying “Najle run”. The complainant was running with his hands clutched around his stomach (T 1060). The applicant got out of the car, fired two-three shots at the complainant and he fell. The applicant stated he believed that the complainant was going to shoot Najle (T 1060) and he shot at him, intending to stop him before he got to Najle. The applicant said he had the gun in his two hands to ensure his accuracy and Najle was still running when he fired. Mr Alzaaim got to the complainant first. When the applicant went to the complainant, he did not see a weapon. The applicant then got in the car with the co-accused and their mother and drove away.

99. He took the gun home, pulled it apart, ground the barrel and buried it. In November 2018, he arranged for the gun to be handed in to police.

100. Najle El-Badawi gave evidence that she was with three friends in Leichhardt when her sister, Khola, called. Khola told her Mrs Alzaaim had just called their mother to say the complainant was coming over and to give him everything he wanted. Najle passed on the message to the applicant.

101. Najle received another call from Khola, telling her to call Mr Alzaaim who told Najle that the complainant was “going crazy again”. Najle used her friend Dina’s phone to call triple-0, giving the Bright Street address and her name as Sarah. Najle also called the applicant. On her way home, Najle received text messages from Khola about the complainant on Dina’s phone. In the exchange (in Exhibit 7) Khola said “But he’s saying he will wipe us out” and “He just wants his stuff” and expressed concern that “his gonna think I called [cops]”, before saying “He’s calmed down heaps” and then “He left”.

102. When Najle got to Bright Street, the complainant had already left. Mr Alzaaim asked where the ring and the watch were. Najle said she had sold the watch (although she had not) and Mr Alzaaim said “oh, he really wants the watch and the ... jewellery” (T 775). The applicant arrived, and a short time later, the applicant and the co-accused left to return the jewellery to the complainant. Mr Alzaaim left before them. Khola then told Najle the complainant wanted the watch and had specifically made threats about it (T 866, 880). Najle grabbed the watch and got into the passenger seat of her mother’s Mazda. Her mother was driving and Khola and their neighbour Lena Sabra were in the back seat (T 777-778).

103. When the four women arrived in Alcoomie Street, they saw the complainant from a distance and went around the block and down Alcoomie Street. Mrs El-Badawi stopped and got out of the car when she saw her sons. Mrs Sabra got into the driver’s seat of the Mazda and they parked outside number 49. Najle put the window down and heard the complainant screaming “I want the watch” (T 788) and threatening her family: “I want to finish you off, I”m going to kill you ... I want to finish you off at the park” (T 884).

104. Najle had the phone line to her friends open, and she told them to call the police. She got out of the car with the watch and walked towards the complainant. The complainant yelled threats and started chasing her (T 788). He said “I'm going to kill you, you rat, you dog” (T 886). Najle started running back to the Mazda. As she ran, she heard two gunshots. The complainant had strange body language before he started running, with his arms positioned on his stomach area (T 789, 886). Najle was about seven to ten strides from the car when she heard the shots (T 890). When she got into the car, Najle said “He shot me” and Khola said “Yeah, he did. He pulled out something. He pulled out a gun” (T 891).

105. A triple-0 call was made by one of the friends with whom Najle was communicating by phone contact (Exhibit 8). The friend stated that the complainant had a gun and was on a drug rage and someone had been shot. The Mazda stopped a few streets away, the occupants confirmed that Najle had not been shot and they drove home.

106. Njale gave evidence that her father had a rifle and a hand-held firearm to shoot feral animals on semi-rural properties in Kemps Creek and Badgerys Creek. She said that the firearm surrendered to police by the applicant looked like her father’s firearm. Some of her father’s property was in the garage. The applicant was not allowed to use the firearms on the property. Najle last saw her father’s firearm before 2011 and she had not seen it in the garage at Bright Street.

107. Khola El-Badawi gave evidence that she received a phone call from Mr Alzaaim, saying the complainant was going crazy, and to give him whatever he wanted. Khola contacted Najle and told her (T 972). When the complainant arrived, he started screaming that he wanted everything back - the gold, the ring and the watch and said “If youse don't give me all my things, I'm going to come back and wipe youse out one by one” (T 973). He said if the property was not at his house in thirty minutes, he had two carloads of boys coming, pointing to two cars in the street.

108. Khola exchanged text messages with a friend, Salem Taha (Exhibit 9), at 8:14pm. Khola's messages included “Bro his threatening us ... Saying he will kill us all one by one ... His in (sic) actual drugs”.

109. The complainant left as Mr Alzaaim arrived. Najle and the applicant then arrived (T 973). Mr Alzaaim asked where the watch was, and Khola said “there’s no watch”. She ran inside to get her shoes and when she returned they were gone. When Najle said they had not taken the watch, Khola said the applicant was going crazy about the watch. Khola got into the back of the Mazda and they left.

110. When they got to Alcoomie Street, they saw the complainant and so went around the block. Khola watched the events through the back window. The complainant was yelling “Where's my watch?” Najle got out of the car and walked towards him. As the complainant started to move in Najle’s direction, he screamed “I'm going to kill you” (T 987). Khola said the complainant began to run fast, then slowed down and pulled out “what I believe is a gun” (T 975). He pulled it out from his stomach area, using two arms, and started raising it towards “us”. Khola could not describe the object, but said the way the complainant was holding it, it looked like a gun (T 976). He was running with one hand on his stomach and the other moving between that position and close to his body (T 990). Khola ducked and heard one to three gunshots. Najle jumped into the car and they drove away. Khola said “call the cops” and “he had a gun” (T 1005). When they got home, their mother was crying, saying “our life is over”.

111. Lena Sabra saw the complainant arrive at the El-Badawis’ house and heard him screaming for Najle, and for his jewellery and watch. He threatened repeatedly that they had half an hour to give back the watch, the gold and the ring, or he would wipe them out one by one (T 1194). Mrs Sabra told Khola to call the police but she refused (T 1195). The complainant left, then Mr Alzaaim left. Najle and the applicant arrived and then left.

112. Mrs Sabra did not remember the applicant going into the garage before leaving. Mrs Sabra left in the Mazda with Mrs El-Badawi, Najle and Khola. On arrival in Alcoomie Street, they drove around the block because Najle said the complainant was out the front (T 1197).

113. Mrs El-Badawi got out of the car and Mrs Sabra got into the driver’s seat. Mrs Sabra heard the complainant screaming for the watch. In the rear-view mirror, she saw Najle walk towards the complainant (T 1198) and she saw the complainant running towards Najle, screaming “You rat. You dog. You slut. I’m going to kill you”. Najle was running when Mrs Sabra heard two gunshots. Najle jumped in the car screaming “I got shot”. Before that, Khola was screaming “He's got a gun”. The closest the complainant got to Najle was about 20 metres away.

75. Sarah El-Badawi gave evidence that she was in the garage at Bright Street when the complainant arrived. He was asking where Najle and his things were. He said very loudly “Youse have 30 minutes to come to my house” and mentioned something about having people. Sarah only caught grabs of what the complainant said as she kept going to the door to check it. Sarah said that the garage was like a lounge, with couches and a TV, and she did not know there was a gun in there. She did not see either of her brothers go into the garage before they left.

76. Isaac, a neighbour from Bligh Street, heard shouting and screaming at 8-8:30pm. He saw a man shouting at Khola and the co-accused. The man was calling the family “mother f***ers” and swearing in Arabic, being aggressive and very abusive. The man said “... half an hour I will come back and kill you all”. He repeated this a few times.

77. Records showed that the first call for an ambulance was made at 9:47pm by Mr Alzaaim. Otherwise four triple-0 calls for the police were made, including the call made by Najle’s friend (Exhibit 8). This was made at 9:47pm and a call by Mr Alzaaim for an ambulance at 9:51pm. Ambulance officers arrived at the scene at 9:57pm.

78. The bullet, which struck the complainant, entered his body through the left shoulder and lodged within the spinal column causing a T-6 complete spinal cord injury with no sensation or motor power in the legs permanently, i.e. the complainant was rendered a paraplegic by one of the bullets which the applicant fired.

79. It was against the preceding background that the issues of law and fact, which were raised before the jury, have to be considered. As a start point, it is necessary to understand the elements of the offence of which the applicant was found guilty.

80. In claims other than murder, the elements of self-defence are set out in ss 418 and 419 of the Crimes Act. These provisions are relevant in that there is no issue that the applicant fired the shots, one of which seriously injured the complainant.

81. Those sections provide:

“418 Self-defence – when available

(1)    A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)    A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—

(a)    to defend himself or herself or another person, or

(b)    to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c)    to protect property from unlawful taking, destruction, damage or interference, or

(d)    to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

419    Self-defence – onus of proof

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.”

126. Those provisions were comprehensively analysed by Howie J in R v Katarzynski [2002] NSWSC 613 where his Honour said:

“22   The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are: (i) is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.

23    The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be.

24    The issue as to the reasonableness of the accused’s response is objective in so far as the jury is not concerned with what the accused believed was necessary to respond to the circumstances as he or she perceived them to be. The current provision is not concerned with whether the accused’s belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief.

25    It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case.”

127. More recently, this Court in Sivaraja v R; Sivathas v R [2017] NSWCCA 236 said in relation to those sections:

“122   The operation of these provisions was explained by Howie J in R v Katarzynski [2002] NSWSC 613 at [22] to [23]. His Honour stated that they require the jury to ask two questions, namely “is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself” and “if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them”. His Honour stated that the first issue “is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct” and the second question “is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced”. This analysis has been repeatedly endorsed by this Court (eg Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 at [50] to [54]; Elias v R [2006] NSWCCA 365 at [22] to [23]).”

128. When considering this appeal, it is necessary to have in mind not only the principles applicable to self-defence, but also the obligations of this Court as an appellate court and the limitations which affect those obligations.

129. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 the plurality (French CJ, Gummow and Kiefel JJ) said:

“The task of the Court of Criminal Appeal

11   It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”

13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

...

14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.””

130. In determining the function of a Court of Criminal Appeal, in matters where significant factual issues were in contest, further guidance was provided by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 where the Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said:

“The whole of the evidence

The role of the jury

65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect[39], the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66   With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.””

131. More recently, the High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell v The Queen) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said:

“32   ... Prior to the hearing in the Court of Appeal, the parties were informed that the Court proposed to watch video-recordings of the trial evidence of four witnesses (A, Portelli, Potter and an altar server, Daniel McGlone), and to attend a view of the Cathedral. In response to this information, the applicant submitted that there was no need for members of the Court of Appeal to watch any video-recordings of the witnesses at trial because his case on appeal did not depend upon an assessment of the credibility of any witness. The applicant agreed that the members of the Court should have the benefit of a view of the Cathedral.

...

34   The respondent agreed, both with the course proposed by the Court ... The respondent submitted that watching the video-recordings of the witnesses was “desirable given the existence of the relevant recordings”.

...

36   The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness’ evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court’s examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.

37   Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

38   It should be understood that when the joint reasons in M v The Queen spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

39   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

Applicant’s submissions

132. The applicant accepted that in accordance with the guidance set out in Pell v The Queen it is not for a Court of Criminal Appeal to form a view about the credibility of a complainant or any other witness. The applicant also accepted that due deference had to be given to the verdict of a jury and referred to R v Nguyen (2010) 242 CLR 491; [2010] HCA 38 at [33]. The applicant accepted that his case at trial was principally based on self-defence and consequently the onus of proving that he did not carry out the conduct in self-defence rested with the prosecution. The applicant did, however, accept that the jury’s guilty verdict necessarily amounted to an acceptance by it that the Crown had demonstrated beyond reasonable doubt that he did not shoot the complainant in defence of another and that his conduct in shooting at the complainant was not a reasonable response in the circumstances as he perceived them.

133. The applicant submitted that the jury’s function in this case did not merely involve watching each person give evidence of the incident on 18 January 2017. He submitted that the jury was required to assess each person’s evidence in the light of the entirety of the evidence adduced a trial. He submitted that much of that evidence related not to the events of 18 January 2017 but to the events leading up to it. He submitted that the purpose of adducing this evidence was to demonstrate that upon the record of the trial, there were discrepancies, inadequacies and that otherwise it lacked probative force in such a way as to cause this Court to conclude that even making full allowance for the advantages enjoyed by the jury, there was a significant possibility that an innocent person had been convicted and that this Court was bound to intervene and set aside the verdict.

134. The applicant submitted that when assessed in the light of all of the evidence, there must be serious doubts concerning the accuracy of the complainant’s evidence and that of his father and uncle to the effect that he did not have a firearm on his person on 18 January 2017. The applicant submitted that the inconsistencies, discrepancies and inadequacy of the evidence offered by “those in the complainant’s camp” were abundant and that the evidence of each person in the complainant’s camp on any reading was replete with error. The applicant submitted that were those errors not so frequent and self-serving, one might accept that the evidence while incorrect was offered in good faith and not motivated by a desire to conceal the truth or present the complainant’s actions in a more positive light.

135. In order to establish those assertions, the applicant had regard to the events preceding the night of 18 January 2017 which demonstrated the extraordinary manner in which the complainant conducted himself, following the ceremony on 27 November 2016. The applicant submitted that on any view of the evidence, the complainant had treated Najle as a possession and regularly conducted himself in a violent and dangerous manner in her presence.

136. The applicant submitted that each of the recorded events, which occurred before 18 January 2017, together with the complainant’s criminal history, provided cogent evidence that the complainant was not only a person who had access to firearms but was a person prepared to make members of the El-Badawi family aware of that fact, including the applicant. The applicant submitted that these pre-18 January 2017 events, provide considerable evidence that the complainant had threatened to kill members of the El-Badawi household.

137. The applicant submitted that the pre-18 January 2017 events demonstrated the preparedness of each of the complainant, his mother and father to provide false and misleading evidence.

202. A number of lay witnesses were asked to mark copies of a Google Maps aerial view of the crime scene which had been admitted as Exhibit 1 to illustrate the position of various participants when the complainant was shot. The version marked by the applicant in cross-examination was admitted as Exhibit S. He marked the location of his car, him, the complainant, Najle and Najle’s (his mother’s) car at the time of the shooting. He marked his own position with an “X” and the complainant’s with a “Y”. They were located on opposite sides of the road, and on the applicant’s version the complainant was running towards Najle whose position was marked with an “N”, somewhat ahead of the complainant. In their respective positions, the complainant’s back and right shoulder, obviously, were nearer to the applicant than his left shoulder. The applicant’s markings were broadly consistent with a handwritten sketch prepared by the complainant’s father, Mohamed Alzaaim, on the night of the shooting at the request of investigating police and admitted as Exhibit Q (AB 131-2).

203. Drawing on the medical evidence, and in particular medical imaging data, crime scene officer Raneri prepared a 3D dioramic representation of the bullet trajectory as it entered and passed into the complainant’s body (his interactive DVD was admitted as Exhibit G). He also prepared stills illustrating his opinion which were admitted as Exhibit H (AB 81-82). In his oral evidence, Mr Raneri said (AB 569; 194.37T):

“I reviewed the provided medical documents and examined the trajectory of the bullet wound in the medical imaging data. From this material I produced a model of the bullet’s trajectory. I measured the bullet wound trajectory to be angled downwards at approximately 3 degrees with an azimuth of approximately 70 degrees.”

He explained an azimuth is a deviation from the centre line. He said, “so coming out from the front of the body and across at 70 degrees”. He described the trajectory line as slightly upwards, nearly horizontal, front to back and left to right.

205. The first ambulance officer on the scene, John Williams, gave evidence. He had been an ambulance officer since October 2010. He carried out a physical examination when he was permitted access to the complainant by police securing the scene. The complainant was lying on his back on the roadway, about two metres from the gutter. He had no shirt on. On examination Mr Williams found a small calibre gunshot wound in the left lateral aspect of the deltoid muscle which is in the upper arm near the shoulder (AB 402; 27.20-40T). He was unable to identify an exit wound. There was no “massive external blood loss”. The complainant complained of a loss of feeling in his legs (AB 403; 28.41T). He was conveyed by ambulance to Liverpool Hospital.

206. Dr Adrian Tchen is a specialist vascular surgeon. He was the surgeon who treated the complainant’s gunshot wound at Liverpool Hospital Emergency Department. He diagnosed a penetrating injury to the complainant’s left upper body with damage to the left brachial artery resulting in significant internal bleeding (AB 575; 200.18 - 45T). The brachial artery is the main artery from the aorta which travels along the left side of the chest and down the left arm. Dr Tchen said that it is the main blood vessel to the arm. The complainant required urgent life-saving surgery. The surgical repair of the brachial artery was successful. A CT scan taken at the hospital identified a bullet within the central spinal canal at the level of T6 – T7 (AB 576; 201.45T). This radiology also identified “an associated comminuted fracture of the left sixth lateral rib and the left posterior seventh rib and the left T7 facet joint and pedicle with bone fragments seen within the central canal” (AB 577; 202.5T). Dr Tchen explained that the fractures seen on the radiology “would be indicative of the trajectory of the assigned bullet”.

207. Dr Tchen’s evidence supported the bullet trajectory illustrated by Mr Raneri. Mr Raneri’s images support, as I have said, the entry of the bullet at the complainant’s left side, moving somewhat backwards before lodging in the spinal canal after fracturing the left sixth and seventh ribs and aspects of the T6 vertebral body.

208. The thrust of the ballistics evidence from Snr Constable Greening, Snr Constable Horder and Crime Scene Officer Potgieter was to identify the two cartridge cases found at the crime scene with the .32 calibre handgun handed in to police on behalf of the applicant in November 2018, and indeed there was little or no issue about this at the trial. In the course of his evidence, Snr Constable Greening said (AB 447; 72.6 - .15T):

Having reviewed the available evidence … I am unable to provide any comment on the trajectories of the fired bullets. Trajectory reconstruction relies on having multiple points of damage or impact, allowing a direction to be established. Other than the wound to the victim, there is no evidence of bullet damage recorded from the scene. Trajectory reconstruction from wounds is unreliable, as orientation of the victim at the time of shooting is unable to be reliably established.

I would understand the expert’s phrase, “unable to be reliably established”, to mean unable to be established by objectively verifiable means. Lay witnesses can obviously say what they saw.

209. Crime Scene Officer’s Potgieter’s evidence, inter alia, established that the found location of cartridge cases at crime scenes may not provide any reliable guidance as to the location of the firearm when the cartridge case was ejected (AB 559; 184.13 - 25T).

210. Given the applicant’s evidence, it is important to record that Mr Pogieter was of the view that discharge of the model of handgun involved at a distance of about 40 to 45 metres “presents a particular challenge in terms of being accurate in hitting a moving target” (AB 562; 187.25T). This evidence was relevant to intent.

Consideration

211. Bearing in mind the considerable body of lay evidence comprehensively reviewed by Hoeben CJ at CL, which I too have considered, and the evidence I have referred to above, I am not persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence of discharging a firearm with the intent to cause grievous bodily harm. That is to say, I am satisfied that it was open to the jury, on the evidence led at the trial, to be satisfied beyond reasonable doubt, that the Crown had negatived the “plea” of defence of another.

212. Notwithstanding the many disputes about the creditworthiness, and reliability otherwise, of the many lay witnesses from whatever “camp” they emerged, it was open on the evidence, if they accepted it, for the jury to conclude that when the applicant commenced to discharge his handgun, the complainant had desisted from his pursuit of Najle and was heading back to where the others were. There was no suggestion whatsoever in any of the evidence that, when he fired, the applicant was fearful for his own safety.

213. Even if the jury had maintained a doubt about the subjective element of the defence, it was open for them to be satisfied beyond reasonable doubt that aiming and discharging his handgun at the complainant when he had ceased his pursuit and turned around was not a reasonable response in the circumstances as he perceived them. It was not suggested at the trial that proof that the complainant had desisted from his pursuit and turned around was an intermediate fact constituting an indispensable link in chain of reasoning towards an inference of guilt which itself required proof beyond reasonable doubt: Shepherd v the Queen (1990) 170 CLR 573; [1990] HCA 56 at 579. Even were that so, I am satisfied that the proofs to which I have referred left it open to the jury to find that fact beyond reasonable doubt.

214. In his written and oral argument, Mr Ozen SC detailed what he submitted were many inconsistencies and discrepancies in the lay evidence relied upon by the Crown to establish guilt. In this regard, he relied upon the well-known passage from M v The Queen at 494-5 in the plurality judgment about the way that inconsistencies and discrepancies may “lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”. I have considered the matters to which he has referred with some care. Notwithstanding the force with which the argument was advanced, I am not satisfied that the jury has, in some way, misused their forensic advantage by convicting the applicant of the alternative charge.

215. In particular, I have given consideration to the argument about whether there was a real possibility the complainant himself was armed with a hidden handgun he intended to use to harm Najle when he was shot. Certainly, the occupants of the applicant’s mother’s car believed that to be the case, although only Khola claimed to have seen it. It is apparent also that the occupants of that car believed the gunfire they heard emanated from such a gun, and this was relayed to the police through the remotely located friend who dialled triple 0 on their behalf. But it is clear beyond doubt that they were mistaken about the origin of the sound of gunfire. What they heard was the discharge of the applicant’s handgun.

216. As I have said at the outset, no doubt what the applicant believed about the complainant’s propensity, including what he had been told about the threats made by the complainant earlier that day, may have caused him concern about whether the complainant would produce a gun. But I agree with Hoeben CJ at CL’s analysis that it was open to the jury to reject Khola’s evidence and to proceed on the basis that the complainant was unarmed on this occasion. The suggestion that the gun was removed from the complainant by his father surreptitiously and hidden before the police arrived, in my view amounts to no more than speculation. The evidence suggests that several people were gathered around the complainant in the immediate aftermath of the shooting, including the applicant and his brother. A jury would have been entitled to conclude that the firearm which the applicant suspected the complainant was carrying would have come to light at that time had the applicant’s suspicion been well-founded; especially if his father had attempted to remove it from him in the near vicinity of others. The failure of investigators to recover a handgun from the scene, too suggests that Khola must have been at least mistaken when she claimed to have seen the complainant draw such a weapon; a factor which it was open to jury to consider.

217. For these reasons, in addition to those given by Hoeben CJ at CL and Hamill J, I agree with the orders his Honour proposes.

218. HAMILL J: I have had the opportunity to read the draft judgments of Hoeben CJ at CL and Campbell J. It is unnecessary for me to repeat the review and summaries of the evidence undertaken by their Honours. Having considered the record of the trial, I agree that the appeal against conviction should be dismissed. My reasons are largely encapsulated in the judgment of Campbell J.

219. I have taken into account the indisputable fact that the prosecution case, and the evidence of the some of the witnesses called by the Prosecutor at trial, was deficient and inconsistent in several respects. Further, the evidence called by both parties at the trial concerning the conduct of Abdul Alzaaim (“the complainant”) in the days and hours leading up to the shooting demonstrated that he possessed an aggressive and violent disposition and exhibited a controlling and dominating attitude towards the applicant’s sister. This included not only evidence of members of the applicant’s family, but also the testimony of a number of neighbours who might be seen as independent, and to a degree, from the complainant’s own family members. The witnesses did not fit neatly into two opposing camps; that is, the family of the applicant and the family of the complainant. The complainant had a criminal record for violent offending, including the use of dangerous weapons. In the hours before the shooting there was convincing evidence that he had threatened to “wipe out” or “kill” members of the applicant’s family “one by one”. That evidence or evidence of a similar character came from at least four witnesses, namely the applicant, Sarah and Khola El-Badawi and a neighbour, Isaac Isaacs. In respect of an incident which occurred two days prior to the shooting (16 January 2017), at least five witnesses - the applicant, Sarah, Khola and Najle El-Badawi and a neighbour, Lena Sabra - confirmed the complainant was causing a serious disturbance, violently threatening various members of the El-Badawi family, and refusing to leave the premises. The aggressive and threatening conduct of the complainant was also established by the contents of text messages, calls to emergency services and, most starkly, by an audio recording captured by Sarah El-Badawi (Exhibit 5 at trial).

220. I have assessed this body of evidence carefully and given it significant weight in considering the submissions made by the applicant on the central issue of self-defence (defence of his sister) and the contention that the jury ought to have entertained a reasonable doubt as to his guilt. The issue for the jury, and now for this Court, is whether the evidence considered as a whole eliminated the possibility that the applicant acted in defence of his sister (or in self-defence) in shooting the complainant with intent of causing him really serious injury.

221. The shooting and its grave consequence was not in dispute. There was no serious issue taken on the appeal as to the specific intention with which the applicant acted. In relation to self-defence and defence of another, and pursuant to ss 418 to 419 of the Crimes Act 1900 (NSW), the prosecution was required to disprove one of two things beyond reasonable doubt. First, the prosecution had to disprove that the applicant believed his conduct was necessary to defend his sister. Second, or alternatively, the prosecution was obliged to disprove that the conduct was a reasonable response to the circumstances as the applicant perceived them. At either, or both stages, of this inquiry, the Court must bear in mind that the conduct in question was discharging a firearm with the specific intention of causing grievous bodily harm.

222. My assessment of the evidence is that the evidence did not disprove to the criminal standard that the applicant believed it was necessary to do what he did. In spite of the advantages enjoyed by the jury and, in particular, the fact that the jury observed the applicant give evidence, the doubt that I have as to this issue is one that the jury ought also to have entertained: cf M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63. While the basis of the jury’s verdict cannot be known, it may be that the jury came to a similar view. The evidence of the complainant’s conduct in the days leading up to and immediately before the shooting meant that the applicant’s evidence that he believed his conduct was necessary to defend his sister ought to have (at least) raised a reasonable doubt as to this issue.

223. In his sentencing judgment, Acting Judge Armitage QC accepted a series of submissions to the effect that the applicant believed his conduct was necessary in response to the threat the complainant posed to his sister. [1] His Honour concluded that the verdicts were based on a finding that the applicant acted in “excessive self-defence”. Further, in its written submissions to this Court, the respondent appeared to accept that possibility. [2] The respondent submitted that, even if the jury accepted the evidence about the complainant’s threatening conduct prior to shooting (or rejected the evidence of the complainant and members of his family), it remained open to the jury to conclude (beyond reasonable doubt) that the applicant’s response was not reasonable in the circumstances as he perceived them. Neither the sentencing Judge’s findings nor the respondent’s concessions are determinative, but they fortify me in my view that there was a reasonable doubt on the whole of the evidence that the evidence disproved the purely subjective component of the statutory formulation of self-defence

     1. Remarks on Sentence (ROS), pp 14-16.

     2. Respondent’s written submissions at [13] and [87].

224. My conclusion as to the partially objective component is different. It was open to the jury, in the sense explained by the High Court in cases such as M v The Queen, SKA v The Queen and Pell v the Queen, [3] to be satisfied beyond reasonable doubt that the applicant’s conduct was not a reasonable response to the circumstances as he perceived them. As the judgment of Campbell J demonstrates, while the orientation of the victim at the time of shooting was “unable to be reliably established”, [4] it was open to the jury to conclude that the complainant had stopped chasing the applicant’s sister by the time the applicant discharged the firearm. In those circumstances, regardless of the complainant’s threatening and violent conduct earlier, however appalling and warranting of censure, it was open to the jury to conclude that the relevant “conduct” (discharging the gun with the intention of causing grievous bodily harm) was not reasonable, even in the circumstances as the applicant perceived them to be.

     3. M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400 at [14], [20] – [24], [78] – [80], [89]; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123 at [37]-[39], [43] – [45]; [2020] HCA 12.

     4. Trial Tcpt, 14 November 2018, p 72(6 -15).

225. The High Court has emphasised the constitutional role of the jury in the criminal trial process. Following on from what was said in M v the Queen, [5] the High Court in Pell v The Queen explained that the jury’s advantage over an appellate court goes beyond the simple fact that the jury sees and hears the witnesses give evidence. [6] The opportunity to assess the witnesses’ evidence was an important advantage in the present case where there were such glaring conflicts between the versions given by the witnesses, some of whom were clearly emotive and possibly partisan. However, the other advantages to which the High Court referred, including the requirement of unanimity and group discussion by a group of community representatives,[7] are also particularly important in the circumstances of the present case, where the ultimate question was (or may have been) the reasonableness of the applicant’s conduct.

     5. M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63.

     6. Pell v The Queen (2020) 268 CLR 123 at [37]; [2020] HCA 12.

     7. Pell v The Queen (2020) 268 CLR 123 at [37]; [2020] HCA 12.

226. In M v The Queen, the majority (Mason CJ, Deane, Dawson and Toohey JJ) said (at 493):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

227. Brennan J, dissenting, said (at 502):

“The question whether a jury, acting reasonably, must have entertained a reasonable doubt about guilt remits to the appellate court an inquiry into all the evidentiary aspects of the case. But the jury have advantages in the finding of facts which are denied to an appellate court. As Dawson J pointed out in Whitehorn [1983] HCA 42; (1983) 152 CLR 657 at 687:

‘In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot.’

Moreover, in making its evaluation of the case against an accused, the appellate court must acknowledge that the primary responsibility for finding the facts rests with the jury, not with the appellate court. As Mason CJ said in Chidiac (1991) 171 CLR at 443; see also Chamberlain v. The Queen (No.1) [1983] HCA 13; (1983) 153 CLR 514 at 519-520; Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 at 608:

‘The constitutional responsibility of the jury to decide upon the verdict and the advantage which the jury enjoys in deciding questions of credibility by virtue of seeing and hearing the witnesses impose some restraints upon the exercise of an appellate court's power to pronounce that a verdict is unsafe.’

And so, for both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict.”

228. See also Gaudron J at 508 (dissenting as to the precise result, but agreeing with the majority as to the “nature of the inquiry involved”) [8] and McHugh J (dissenting) at 525.

     8. Gaudron J found the guilty verdict to be unreasonable on one particular issue and would have ordered a re-trial on less serious charges, whereas the majority ordered that verdicts of acquittal be entered.

229. In Pell v The Queen, the High Court said at [37] – [38]:

“[37] Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

[38] It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.”

230. In SKA v The Queen,[9] the nature of the inquiry was highlighted (at [13]):

“The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses.”

(Citations omitted.)

9. SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

231. The primacy of the jury as the decision-making body was reiterated in R v Baden-Clay [10] (at [65]-[66]):

“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”

(Citations omitted.)

10. (2016) 258 CLR 308; [2016] HCA 35.

232. It is clear that the jury in the applicant’s case approached the issues with attention and care, a matter demonstrated by the acquittals of the applicant on the more serious count (shoot with intent to murder) and of the applicant’s brother on both of the charges upon which he was arraigned. The jury received strong directions on the issue of self-defence and the onus of proof and the need for the evidence to establish beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances. The trial Judge re-directed the jury on particular matters and no complaint was made about the summing up in its final form.

233. As to the second (partially objective) aspect of self-defence, the jury was directed as follows:

“If the Crown has failed to prove beyond reasonable doubt this first aspect, then you should consider whether the Crown has nevertheless proved beyond reasonable doubt that the conduct of the accused Ahmed El-Badawi was not a reasonable response in the circumstances as perceived by that accused. The issue for you to consider, having regard to the circumstances as they were perceived by the accused Ahmed El-Badawi. Whether his response was unreasonable or excessive, whether it was or was not a reasonable one in those circumstances is a matter for your judgment. It is not a matter of whether the accused Ahmed El-Badawi thought his response was reasonable. It is a matter for you to consider whether it was or was not. In considering this question you should consider all aspects of the accused Ahmed El-Badawi’s response, including the nature, degree and means by which force was used by him in the circumstances as he perceived them.

The critical question is, has the Crown proved beyond reasonable doubt that it was not a reasonable response in the circumstances as he perceived them? The Crown will only succeed in relation to this second part of defence of another if it satisfies you beyond reasonable doubt that the conduct of the accused Ahmed El-Badawi was not a reasonable response in the circumstances as the accused Ahmed El-Badawi perceived them to be at the time of the conduct in question.

I should however make it emphatically clear to you that it is the accused Ahmed El-Badawi’s perception of the circumstances which must be considered.” [11]

11. Summing-up, 12 December 2018, pp 34 – 35.

234. The trial Judge summarised the applicant’s case both in the course of providing legal directions and in summarising the case of each of the parties towards the end of the summing up. The inconsistencies and weaknesses in the prosecution case were brought home to the jury in a resounding way.

235. None of the foregoing detracts from the fact that it is now for this Court to consider the evidence as a whole to determine whether the verdict was unreasonable or unable to be supported, despite the fact that the applicant received a fair trial according to law. My review of the record at trial does not lead me to conclude that “there is a significant possibility… that an innocent person has been convicted”. [12]

     12. See, for example, Chidiac v R (1991) 171 CLR 432 at 443-444; [1991] HCA 4 (Mason CJ); and cf Pell v The Queen at [119].

236. On the applicant’s case at trial, he armed himself with a loaded gun in advance of the final confrontation. I would not categorise this, as Hoeben CJ at CL does at [187], as the applicant arming “himself with a loaded pistol and [taking] it to a meeting which had been arranged with the complainant to resolve the dispute”. While that was the thrust of the evidence of the complainant and some members of his family, it does not in my respectful view represent the preponderance of the evidence given at the trial. Rather, the situation was that the complainant made demands, in a most threatening manner, in relation to the return of certain property. He said that if he did not receive the property, within 30 minutes, he would kill (or wipe out) the applicant’s family one by one. That threat, made shortly before the critical incident, must be understood in the context of the complainant’s aggressive and volatile behaviour in the days prior.

237. Even so, the applicant armed himself with a loaded gun in circumstances where, on his own evidence, he had not seen a gun in the complainant’s hands. He said he “believed” the complainant had a gun in part because the latter said “Come to the park now. If you’re a man, I’m going to do you now” [13] and in part because of prior interactions the applicant had with the complainant and incidents of a similar nature reported to him by his sister. [14] He also described the way the complainant ran after his sister and suggested this too strengthened his belief that the complainant was armed. However, the applicant made no real effort to diffuse the situation or to respond to the complainant’s threats with a warning that he too was carrying a gun. [15] The reality is that, whatever his belief may have been, the applicant never saw a gun in the hands of the complainant on the day in question and his suspicion or belief that he had a gun was founded more on his knowledge of the complainant’s character and reputation than it was on the events of the day. Once the pursuit commenced, there were obvious alternatives to shooting at the complaint with the intention of causing him grievous bodily harm. One was to fire a warning shot. Another was to continue the pursuit and to provide the complainant with a warning that he was armed and ready to shoot. There was a lively dispute at the trial as to how close (in distance) the complainant ever got to the applicant’s sister. This is relevant to the respondent’s submission that the distances maintained between the applicant’s sister and the complainant in pursuit, meant that the complainant did not pose a realistic threat without having a weapon to discharge himself. [16]

     13. Trial Tcpt, 5 December 2018, p 1117.

     14. Appeal Tcpt, 24 March 2021, p 1034.

     15. Trial Tcpt, 5 December 2018, p 1117.

     16. Appeal Tcpt, 24 March 2021, p 21(26-42).

238. I reject the oral submission made initially by Senior Counsel that the applicant “had no other option”. [17] I accept the less strident submission, offered by Senior Counsel when challenged as to the hyperbole, to the effect that the question is not whether there were other choices available to the applicant; rather the question was whether the conduct (shooting with intent to cause really serious injury) was established, beyond reasonable doubt, not to be a reasonable response in the circumstances as the applicant perceived them. [18] Even so, the other options available are relevant to an assessment of the reasonableness of the applicant’s conduct.

     17. Appeal Tcpt, 24 March 2021, p 7.

     18. Appeal Tcpt, 24 March 2021, p 11.

239. On my independent assessment of the evidence, the conduct was not (objectively) a reasonable response, even giving great weight to the applicant’s perception of the circumstances and allowing for the fact that there was “little (if any) opportunity… for calm deliberation or detached reflection”[19] or a weighing of the options available to him.

     19. R v Dziduch (1990) 47 A Crim R 381.

240. In addition to the factual matters identified in the judgment of Campbell J, and a review the whole of the evidence (which is comprehensively summarised in the written submissions of the parties and the judgment of Hoeben CJ at CL), I am satisfied that it was open to the jury to reach a verdict of guilty in relation the alternative count brought pursuant to s 33A(1)(a) of the Crimes Act.

241. Accordingly, I agree that leave to appeal should be granted but that the appeal must be dismissed.

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ANNEXURE “A”

Name	Relationship to Applicant or Complainant
Ahmed El-Badawi	The applicant
Najle El-Badawi	The applicant’s elder sister; the complainant’s ex-fiancé; resident of Bright Street, Guildford
Layla El-Badawi	The applicant’s mother; resident of Bright Street, Guildford
Khola El-Badawi	The applicant’s middle sister; resident of Bright Street, Guildford
Sarah El-Badawi	The applicant’s younger sister; resident of Bright Street, Guildford
Sabrina El-Badawi	The applicant’s wife
Lena Sabra	The applicant’s neighbour – resident of Bright Street, Guildford
Isaac Isaac	The applicant’s neighbour – resident of Bright Street, Guildford
Hassan El-Badawi	Co-accused; the applicant’s brother
Abdul Rahman Alzaaim	The complainant; resident of Alcoomie Street, Villawood
Ibtisam Alzaaim	The complainant’s mother; resident of Alcoomie Street, Villawood
Mohammed Raid Alzaaim	The complainant’s father; resident of Alcoomie Street, Villawood
Hanadi Dennaoui	The complainant’s aunt
Mustapha Dennaoui	The complainant’s uncle

Endnotes

Decision last updated: 24 August 2021