Hamzy v The Queen

[2018] NSWCCA 53

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Hamzy v R [2018] NSWCCA 53
Hearing dates:	21 February 2018
Date of orders:	28 March 2018
Decision date:	28 March 2018
Before:	Hoeben CJ at CL at [1]; Simpson JA at [181]; McCallum J at [200]
Decision:	(1)   Leave to appeal against conviction granted. (2)   Appeal against conviction dismissed. (3)   Leave to appeal against sentence granted. (4)   Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – conviction and sentence appeal – manslaughter and wounding with intent – self-defence – excessive force inflicting death – Crimes Act 1900, s 421 – whether open to jury to find conduct not a reasonable response in circumstances as perceived by the offender – whether victim was armed with a pistol – whether victim was about to shoot offender – whether jury’s verdict consistent with finding that offender believed that conduct was necessary to defend himself – whether that response reasonably open to jury – conviction appeal dismissed – SENTENCE APPEAL – whether findings by a sentencing judge consistent with jury verdict – whether sentence manifestly unjust – limitations inherent in reliance upon other manslaughter cases – sentence appeal dismissed.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) – ss 18, 24, 33(1)(a), 418, 419, 421 Criminal Procedure Act 1986 (NSW) – s 132(5) Evidence Act 1995 (NSW) – s 38
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CR v R [2017] NSWCCA 29 De Wet v R [2015] NSWCCA 23 Diab v Regina [2009] NSWCCA 58 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Grant v R [2014] NSWCCA 67 Hawi v R [2014] NSWCCA 83 M v The Queen [1994] HCA 63; 181 CLR 487 Pitt v R [2014] NSWCCA 70 R v Hamzy [2016] NSWSC 1512 R v Hamzy (No 2) [2016] NSWSC 1514 Regina v Diab [2007] NSWSC 577 SKA v The Queen [2011] HCA 13; 243 CLR 400 Smith v R [2015] NSWCCA 193 Vaiusu v R [2017] NSWCCA 71 Vuni v R [2006] NSWCCA 171
Category:	Principal judgment
Parties:	Mohammed Hamzy – Applicant Regina – Respondent Crown
Representation:	Counsel: H Dhanji SC/G Lewer – Applicant T Smith – Respondent Crown   Solicitors: Thomas Bell – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/336106
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Hamzy [2016] NSWSC 1512 Date of Decision: 28 October 2016 Before: R A Hulme J File Number(s): 2013/336106

Judgment

1. HOEBEN CJ at CL:

Introduction

The applicant appeals against his convictions for two offences:

Manslaughter contrary to ss 18 and 24 of the Crimes Act 1900 (NSW) and wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act.

2. The applicant also seeks leave to appeal against sentence.

3. The applicant was tried before his Honour R A Hulme J and a jury in the Supreme Court. The trial commenced on 21 June 2016. Verdicts were taken on 8 July 2016.

4. The indictment against the applicant alleged that:

Count 1 – On 8 October 2012 at Yagoona in the State of New South Wales did wound Alex Ali with intent to cause grievous bodily harm.

Count 2 – On 14 October 2012 at Greenacre in the State of New South Wales did murder Yehya Amood.

Count 3 – On 14 October 2012 at Greenacre in the State of New South Wales did wound Mr C with intent to murder.

Count 4 – In the alternative to Count 3, on 14 October 2012 at Greenacre in the State of New South Wales did wound Mr C with intent to cause grievous bodily harm.

5. The applicant pleaded not guilty to all counts on the indictment. In respect of Count 1, he denied being involved in that crime. The jury returned a verdict of not guilty.

6. Counts 2 – 4 involved an allegation that the applicant shot into a car on 14 October 2012. Seated in the car were Mr Yehya Amood who died and Mr C who was wounded. The applicant admitted that he had fired shots into the car but said that he was acting in self-defence. In relation to Count 2, the jury returned a verdict of not guilty of murder but guilty of manslaughter.

7. The jury returned a verdict of not guilty to Count 3, but guilty to the alternative Count 4. The Crown had conceded that there should be a verdict of not guilty in respect of Count 3 because it required the essential element that the applicant intended to kill Mr C. The Crown had put quite squarely to the applicant in cross-examination that he had only intended to inflict grievous bodily harm. It was on this basis that the jury acquitted the applicant of Count 3 but found him guilty of Count 4.

Non-publication/suppression orders

8. At trial various orders, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) were made, including orders in relation to the identities of various witnesses. The sentence judgment of R v Hamzy(No 2) [2016] NSWSC 1514 was also the subject of a suppression order. Those orders have been continued in this appeal.

THE CONVICTION APPEAL

9. The applicant relies upon a single ground of appeal in relation to his convictions:

Ground 1 – The verdicts are unreasonable and cannot be supported having regard to the evidence.

Factual background

The Crown case

10. The Crown case involved two shooting incidents. The asserted link between the two shootings was that they involved the same alleged motive. There was evidence that the various persons involved were all members of a criminal association, Brothers for Life.

11. The Crown called a witness, Mr O, who gave evidence of the alleged motive. Mr O said that in the weeks before the shootings in October 2012, he was at the applicant’s house and overheard a conversation between the applicant and Mr C’s wife, Ms Adel. In that conversation Ms Adel told the applicant that Alex Ali and Mr C had said that the applicant’s wife was “a gold-digger” and “a slut” and that Mr C wanted to “get” the applicant. The Crown alleged that the applicant then shot Ali and Mr C in retribution for saying these things about his wife.

8 October 2012 shooting

12. Ali was shot in the evening of 8 October 2012 near a park in George Street, Yagoona. He was there with a friend, Mr Mahmoud Sanoussi. They were smoking cigarettes when an unidentified male walked across the park in a hooded jumper and shot Ali three times in the leg. Neighbours heard the shots and attended the scene. Various triple 0 calls were made, including from Mr Sanoussi. Ali was taken to hospital by ambulance and received treatment for the bullet wounds.

13. Mr O gave evidence that the day after the shooting, he saw the applicant at the gym and the applicant confessed to him that he had shot Ali. This confession and the alleged motive constituted the primary evidence linking the applicant to the shooting. When he was called to give evidence, Ali (contrary to the evidence of Mr O) denied ever having been involved in a conversation where the applicant’s wife was called “a slut” or “a gold-digger”.

14 October 2012 shooting

14. The second shooting incident occurred on the afternoon of 14 October 2012. Mr O gave evidence that the applicant had been looking for Mr C in the lead up to 14 October 2012. Mr O claimed to have gone out with the applicant looking for Mr C on one occasion. The Crown case was that after looking for him for some time, the applicant eventually had telephone contact with Mr C on the morning of 14 October 2012. It was arranged to meet at the applicant’s mother’s house in Greenacre Road, Greenacre.

15. This arrangement was made by an exchange of texts as follows:

12.31pm	C	It’s [C] call me when u wake up
12.52pm	Applicant	Just got up Gona get a hair cut then I will cal u
12.52pm	C	I’m your area me and yeah [This was accepted to be a reference to Yeyha Amood (T494)]
12.55pm	Applicant	Do u want me to cal u after hair cut
12.56pm	C	I’ll meet u there
1.07pm	Applicant	At my mums leaving here in 15 come here if u want
1.08pm	C	Ok I’ll be there in 5

16. It was accepted that the applicant had conveyed in those texts to Mr C that he was at his mother’s place and that Mr C, who had told the applicant that he was with Yehya Amood, said that he would be there in five minutes. The applicant’s mother lived in a complex of townhouses, the entrance to which was on Greenacre Road, Greenacre. Vehicular access to the townhouses was down a driveway from the road.

17. Mr C drove to the location in his Mercedes sedan, which had the distinctive registration plates “BFL”. A friend of both Mr C and the applicant, Yehya Amood, was in the front passenger seat of Mr C’s car. It was common ground at trial that the applicant held no ill feelings towards Mr Amood and had no intention to shoot him.

18. The applicant was at his own home in Yagoona with a number of Brothers for Life associates. He asked one of them, Mr G, to “take me to my mum’s”. Mr G drove the applicant to Greenacre Road in a white Lexus four wheel drive and they arrived at 1.15pm. It was not suggested by the Crown that Mr G had any awareness of an intention on the part of the applicant to shoot Mr C. The white Lexus approached Mr C’s car from the rear and when it pulled up next to Mr C’s car, the applicant fired at least 11 shots from a pistol into the car. One of those shots struck Mr Amood in the area of his right armpit. Another two shots hit Mr C, one in the right thigh and one in the right ankle. While the shots were being fired Mr G drove from the scene.

19. Neighbours heard the shots and attended Mr C’s vehicle, rendering aid to both men. Ambulance and police were called. Ultimately, Mr Amood was pronounced dead at the scene, the one bullet that struck him having pierced his heart. Mr C was conveyed to hospital. By the time of trial Mr C had made an uneventful recovery.

20. Mr O gave evidence that after the shooting the applicant had confessed to him his involvement with the shooting of Mr C. He said that the applicant told him that he had shot him out of fear because Mr C had a pistol.

21. The Crown case was that both shootings were premeditated by the applicant. In relation to the 14 October incident, the Crown case was that neither Mr C nor Mr Amood were armed with any weapons.

The applicant’s case at trial

22. The applicant gave evidence at trial. He denied having a pre-existing motive to hurt Mr C or Mr Amood. He denied wanting retribution because they had insulted his wife. In relation to the 8 October 2012 shooting, the applicant denied that he had been involved. He denied having made any confession to Mr O the following day.

23. In relation to Mr C, the applicant denied that in the days before 14 October 2012 he had been seeking to get in contact with him. He gave evidence that Mr C was the one seeking to get in contact with him. The applicant said that he had been having an affair with Mr C’s wife, Ms Adel. In the days leading up to 14 October when Mr C was trying to get in contact with him, he (the applicant) was concerned that Mr C was seeking to confront him about this affair.

24. The applicant gave evidence that on the morning of 14 October 2012 Mr C repeatedly contacted him by telephone and sought a meeting. The applicant told Mr C, falsely, that he was at his mother’s house and agreed to meet him there.

25. The applicant, who did not have a driver’s licence, arranged for his friend, Mr G, to drop him at his mother’s house. Mr G drove him there in a white Lexus four wheel drive that belonged to another friend, Mr AD. Mr AD did not have a licence.

26. Before getting into the car, the applicant armed himself with a Glock 9mm pistol. He said the “clip” was in the pistol when he took it. He thought there were 15 or 16 cartridges in the clip. He put it in a pocket in the front of his jumper. He gave the following evidence of his reasons for doing so:

“Q   … Did you arm yourself with a weapon?

A.   Yes.

Q.   Why did you do that?

A.   Because [Mr C] and what Sal [Ms Adel] had told me that …. She told me that he was going to get me because he found out about the affair.

Q.   Why did you think you needed a weapon?

A.   Much bigger than me. I remember Sal told me that he’s going to shoot me, or something along them lines, get me, so I thought I’ll take one just in case.” (T496.47-T497.6)

27. The applicant said that when he entered Greenacre Road he saw that Mr C’s car was not outside his mother’s house (which was some distance down a driveway that was accessible from the road) but on the road near the entrance to the driveway. Mr G drove so the Lexus pulled up alongside Mr C’s car and was pointing in the same direction as that car. The applicant said that he lowered a window of the Lexus and at that point he saw that Mr C had a pistol in his hand and it was moving towards him. The applicant then raised his pistol, “racked” it and fired a number of shots into the car. During this he briefly saw Mr Amood in the car. He did not intend to shoot Mr Amood. After the first shots were fired, Mr G drove off and the applicant continued to fire shots at Mr C’s car as they pulled away.

28. The applicant’s case was that he fired the shots in self-defence.

Relevant evidence

29. Mr C gave evidence in the Crown case. The evidence which he gave was inconsistent with a statement which he had made to the police on 3 October 2013 to the effect that he did not have a pistol at the time. He said in that statement:

“Immediately after the Lexus pulled up next to me, Hamoudie stuck his arm out the window holding a gun. He started firing the gun. And he was facing back towards me as he was shooting at me.”

30. The Crown was given leave pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr C on that issue and on a number of other issues, including whether the window of the Mercedes in which he was seated was open, closed or partially open.

31. Similar issues arose with Mr G. His evidence at trial was that he saw that Mr C had a metal object in his hand. He made a statement on 23 July 2014 in which he gave an account which in significant respects was inconsistent with the applicant’s account. The version given by Mr G to police on that occasion was to the effect that the applicant was preparing to shoot well before the car came alongside Mr C’s Mercedes. Although he was called to give evidence in the Crown case, leave was granted for him to be cross-examined by the Crown.

32. It was accepted by the applicant that there were at trial significant credit issues relating to the evidence which he gave and which was given by Mr C and Mr G. In that regard, I do not understand the applicant to argue against the following observation made by the trial judge in the course of his sentence judgment where he said:

“26   The submissions by counsel for the offender depend, to a large extent, upon my acceptance of evidence given by Mr C, Mr G, and the offender himself. I indicated during the course of the sentence hearing that I had serious misgivings about the credibility of each of them. The manner in which they gave their evidence was not impressive. Their explanations for significantly inconsistent prior statements were unsatisfactory. I gained the distinct impression that they were all doing their best to provide an exculpatory self-defence version no matter what they had said in the past.”

33. While this Court is not in a position to make such an assessment, and while it is not known what conclusions the jury formed in relation to those witnesses, the evidence which they gave at trial needs to be read against a background of there being a significant challenge to their credit.

34. Mr C gave the following evidence:

“Q. So you saw a white car pull up, did you say?

A. Yes.

Q. When were you first conscious of the white car, when did you first notice it?

A. A couple of seconds before that because I was keeping an eye out.

Q. You were keeping an eye out?

A. Yes.

Q. So, where did you first spot this white car?

A. Well, in my rear view mirror.

Q. In your rear vision mirror?

A. Yeah.

Q. It was behind you, obviously, was it?

A. Yeah.

Q. How many metres away from you was it when you first saw it?

A. Oh, I don’t know, probably about 20, 30 metres.

Q. Did you recognise the car?

A. No, not at first.

…

Q. So when did you first realise that Mr Hamzy had arrived, how close was the car to you?

A. Probably just right across me.

Q. Right across you?

A. Yeah.

Q. Pulled up alongside you?

A. Yes.

…

Q. Well, what did you see, hear or feel at that point?

A. Well, first I had the gun towards him.” (T349.31-350.31)

“Q. You say that you had a firearm, a Glock 9?

A. I always carried a firearm.

…

Q. So you didn’t just have it for a specific purpose on this day?

A. Well, it was meant for a specific thing that day, it was meant for a specific purpose that day.

Q. What do you now say it was meant for?

A. It was for Mr Hamzy.

Q. What do you mean “it was for Mr Hamzy”?

A. I went there intentionally to lure him into shooting him; maybe not to kill him, but to shoot him.

…

Q. I take it you had a dispute with Mr Hamzy then?

A. Not that he knew of.

Q. Not that he knew of?

A. No.

Q. What was your problem with Mr Hamzy?

A. I think he was cheating with my wife.” (T352.3-.36)

“Q. So you are telling the Court then that you went to meet Mr Hamzy at his mother's place?

A. Yes.

Q. And you were going to shoot him there in front of his mother's place?

A. Yes.

Q. That was your intention?

A. Yes.

Q. Instead of that you got shot?

A. Yes.

Q. And so did Mr Amood?

A. Yes.

Q. And you didn't end up even shooting a single projectile out of your gun, is

that right?

A. I was trying to clarify if it was him.

Q. Before you could clarify it was him, he had shot you and Mr Amood and

your car about 11 times?

A. I can't remember how many shots, it all happened so quick.

Q. When you started getting shot, you moved, didn't you, into the centre

console?

A. I turned.

Q. Did you turn before you were shot the first time?

A. No.

Q. When did you start to turn in your seat?

A. After I heard the first shot.

…

Q. Did the first shot hit you?

A. I don't know, I can't answer that question.

…

Q. What degree of tinting on the windows is there on this Mercedes?

A. I can't remember that one.

Q. You can't remember?

A. No.

Q. Your car?

A. Yeah, it was my car. Tinting, I can't remember what degree.

Q. Was there any tinting?

A. I don't know if there was or there wasn't. I can't remember that one.

Q. Did you have your engine running when you were shot?

A. Yes.

Q. So you proposed to shoot at Mr Hamzy from your car whenever it was that he arrived, is that what you are saying?

A. Yes.

Q. And yet a car was coming up from behind you and beside you.

A. I was checking every car that came beside me, not only that car.

Q. I see.

A. Yeah.

Q. By the time you had time to check that car, you were shot?

A. It wasn't by the time, when I pulled out my weapon out the window, then I got shot.

Q. But why would you pull your weapon out of the window if you hadn't yet checked that it was Mr Hamzy?

A. Because a normal car would come past you a bit fast; this one was pulling up next to me like, not like normal, so, obviously - and even if it wasn't the car, I would have still pointed it anyway.

Q. If you were lying in wait, waiting for Mr Hamzy with your firearm ready to go.

A. Yep.

Q - wouldn't you have got him first?

A. No, should have, but I didn't.” (T353.30-355.29)

“Q. When he drew up alongside you, did your eyes meet?

A. I don't know if my eyes met but, as soon as I realised 100% it was him, it

was like one second.

Q. As soon as you realised 100% it was him then you were shot?

A. Yeah, because I had my gun out.

Q. You were shot because Mr Hamzy shot you, weren't you?

A. Yes.

Q. You say you had your gun out?

A. Yes.

Q. What, hanging out of the car window, just in case Mr Hamzy came along? A. First I had it just under the window like that and, as soon as the car pulled up next to me and I realised it was him, I put the gun out like that (indicated).

HIS HONOUR

Q. When you say "out", do you mean out the window?

A. Not out the window, but just the nose of it on top of the window, because my window was down.

Q. So your window was down and your gun was on top of the window sill? A. Yeah, just under it until I realised who it was 100%.

CROWN PROSECUTOR

Q. I suggest to you that your window was up, actually, Mr C?

A. No.

Q. And that your driver's side window glass ended up on the front and back seats of your car?

A. No, I don't think so.

Q. Shot by Mr Hamzy?

A. I don't think so.” (T361.26-362.12)

“Q. I think you said that, as soon as the firing started, you started moving into the middle of the car somehow?

A. Didn’t move, I turned.

Q. You turned?

A. Yeah, I was like that and I turned (indicated).

Q. You are turning your head to the left, almost over your left shoulder, but at the same time raising your right hand –

A. I was like that and, when the firing started, I just turned like that (indicated).

Q. Being careful you say now to keep your gun at the window?

A. Yes.

Q. But still not discharging any projectiles from your weapon?

A. I don’t know what happened.

HIS HONOUR

Q. What did you say?

A. I said I don’t know what happened there.” (T362.50-363.20)

35. In cross-examination by defence counsel, Mr C gave the following evidence:

“Q. In relation to the gun that you had, you had that out in your right hand; is that right?

A. Yes.

Q. And you described holding it up against the – near the window; is that correct?

A. Just under the window (indicated).

Q. And was the window partially open?

A. The window was open, but I can’t remember how much or how – the thing, but the window was open.

Q. So you can’t remember if it was open a few inches or ten centimetres or more?

A. That I couldn’t, hundred percent, tell you.

Q. Was it the case you had the gun just underneath on the ledge of the car?

A. Underneath where the window starts, just underneath it, like that (indicated).

HIS HONOUR:

Q. Do you mean to be describing that it was out of sight by being below the level of the window?

A. Yes, out of sight.

…

[DEFENCE COUNSEL]

Q. As the car approached, did you raise the gun up to the window level?

A. Yes.

Q. And did you raise the gun and point it in the direction of Mr Hamzy as he approached?

A. Until I clarified it was him, hundred percent, yes.

Q. You saw that the car was slowing down; is that right?

A. Yes.

Q. And that gave you a suspicion that it was him?

A. Yes.

Q. Is that the reason that you lifted the gun and put it on the glass?

A. Yes.

HIS HONOUR: He said he put it on top of the window sill.

[DEFENCE COUNSEL]

Q. Did you raise the gun as the car approached?

A. Yes. Just under the window sill, sorry.

HIS HONOUR

Q. Sorry?

A. It was just under the window sill.

Q. You said earlier in your evidence that it was below the level of the window and then, as the car was alongside, you put it on the window sill?

A. Yeah, on top of the window, whatever.

[DEFENCE COUNSEL]

Q. Did you have the gun cocked?

A. Yes.

Q. Did you actually attempt to squeeze the trigger?

A. No.

Q. Are you able to say why not?

A. Because it all happened fast.” (T376.26-377.45)

36. Mr G gave evidence at trial. Mr G was asked by the applicant if he would take the applicant to his mother’s house and he agreed to do so. Mr AD who was present said “Take my car”. This was the white Lexus four wheel drive to which reference has already been made.

37. In answer to questions from the Crown, Mr G said that he did not see anything in Mr Hamzy’s hand until “we got right up to the car … I noticed he had a pistol, a gun” (T390.13). This was contrary to a statement which he made to police where he said that at a distance of about 100 metres from the applicant’s mother’s house he saw the applicant produce a pistol. When this was put to him he responded:

“A. Yeah, all right, I said "about a hundred metres", I can't really - I'm not really sure. So, it was about a hundred metres. It could have been 15 metres, it could have been 20 metres.

Q. Well, is it 15 or 20 metres or is it a hundred metres or is it something in between?

A. It just happened, I don't know, I'm not really sure. Like I said, it could be 15 metres, it could be 20 metres, but I said "about a hundred metres". So - it happened three years ago, so I don't know.” (T391.24)

38. Mr G disagreed that the applicant told him to “pull up near [Mr C’s] car” as they approached the Mercedes and that he did not see a pistol in the applicant’s hand at that time. He said that with the passage of time his memory of these events had become better and that is why his evidence differed from what he had told the police in 2014 and the evidence he had given in the committal in 2015 (T396-399). The Crown was given leave to cross-examine him even though he was called in the Crown case.

39. At trial Mr G gave this evidence:

“Q. Did you see the man next to him?

A. No, I didn't see no-one next to him.

Q. You knew Yeyha Amood, I think you've said, didn't you?

A. Yes, he's my friend, yeah.

Q. Yes, a friend of everyone?

A. My friend.

Q. Yes. What happened when you pulled up next to the car?

A. Like I said, it happened very quickly.

Q. What happened?

A. So, I noticed [Mr C’s] window was down and -

Q. That's the first thing you noticed, did you?

A. Obviously, I pulled up next to his car, his window's down. It's like he was

actually –

Q. You don't say anything about that in your statement, do you?

A. From what I seen it looked like he was expecting him to come.

Q. You don't say that in your statement, do you?

A. No, but that's what I'm saying now. From what I seen, it looked like he was expecting him to come. He was already there.

Q. Please tell us what you saw that made [Mr C] look like he was expecting

someone to come?

A. His window was down and he was looking -

Q. You see, what if I suggest to you that the window was up?

A. No, I didn't -

Q. The window was up; what do you say about that?

A. I say that's false. The window was down.

Q. What did Mr Hamzy do as soon as you stopped the car?

A. Okay, I seen something - I don't - I'm not going to say 100%.

Q. Did you hear what the question was?

A. No.

Q. What did Mr Hamzy do the minute you stopped the car next to [Mr C’s] car? What did Mr Hamzy do?

A. Obviously he had the gun in his hand and within a few seconds -

Q. "A few seconds"?

A. - started firing.

Q. Are you serious?

A. Yeah.

Q. As in 1,000, 2,000, how many seconds?

A. I would say a few seconds he started firing.

Q. Two seconds? What did Mr Hamzy do?

A. Within a few seconds they started - he started firing the gun.

Q. Did you hear how many shots were fired?

A. No.

Q. What did you do as soon as the gun started firing?

A. I took off, I drove off.

Q. Did the gun continue to fire as you were driving off?

A. No, it didn't.” (T401.1-402.16)

“Q. What, if anything, did you see of [Mr C]? What parts of his body could you see?

A. I could see his hands.

Q. Could you see his face?

A. Yeah, and his face, yeah.

Q. Did his face have any expression on it as you pull up?

A. Yeah, he wasn't happy as well. Didn't look too happy.

Q. Didn't look happy?

A. No. Like I said, I seen some metal object in his hand, but I can't really

confirm what it is.

Q. You saw a metal object in his hand, but you can't confirm what it is?

A. Yes, I couldn't really tell exactly what it was.

Q. Which hand was it?

A. His - I think it was his right hand.

Q. What colour metal was it?

A. I'm not sure, but some metal object. I couldn't tell if it was a gun or not.

Q. Pardon?

A. I can't really tell if it was a gun or not.

Q. Could it have been a phone?

A. Could have been a gun, but I know that he actually admitted to it being a

gun, so it must have been a gun.

Q. When do you say he admitted to it being a gun?

A. Yesterday.” (T426.1-.36)

40. The applicant gave evidence at trial. Relevant parts of that evidence were:

“Q. When you saw the car in Greenacre Road, what did you think?

A. Awkward because everyone that comes to my mum's drives down the townhouse in front of my mum's house, no-one waits really on top of the townhouse.

Q. Did you do anything when you saw [Mr C’s] car?

A. Yes.

Q. What was that?

A. I pulled the gun out of my pocket and put it in the seat in front of me.

Q. Why did you do that?

A. I found it awkward where he was parked and obviously the - Sal's

comments.

Q. I appreciate your evidence before that you can't recall the distance. Are you able to say by way of timing, how long it was before you got to [Mr C’s] car that you pulled the gun out?

A. Seconds.

Q. Do you remember if you said anything to [Mr G] as you drove in the

direction of [Mr C’s] car?

A. Yeah, I told him, "Pull up beside him".

Q. Do you recall how long that was before you actually did pull up?

A. When I told him?

Q. Yes.

A. We weren't far; we were pretty close.

Q. Do you remember if you told him to pull up once or twice?

A. Pretty sure it was once.

Q. As you approached the car from behind, could you see from your direction whether there were people in the car?

A. No.

Q. There were some questions asked by the Crown Prosecutor yesterday about the window tinting. Do you remember if the windows in the car were tinted?

A. I don't - I don't remember.

Q. When did you first see [Mr C]?

A. That day you mean?

Q. Yes.

A. When I pulled up.

Q. Just to clarify, you were in the passenger seat?

A. Yes.

Q. When the Lexus pulled up, where were you positioned in relation to the

Mercedes?

A. How far?

Q. Yes.

A. Not sure, metres and that, but it was pretty - pretty close.

Q. When did you first see [Mr C] that day?

A. When I rocked up, you mean?

Q. Yes.

A. Yeah, rocked up with my window down.

Q. Was your window down before you got there?

A. No, don't think so.

Q. Did you see [Mr C]? What did you do when you saw [Mr C]? What could you see?

A. I seen his hands - I seen him and the gun in his hands straightaway because I was in a four-wheel drive, so I was pretty high, and I can see in the car, I can see - I was high, so I can see clearly what was in his hands (indicated).

Q. Whereabouts were his hands when you saw them?

A. Close to the steering wheel window area, between there.

Q. Did he move his hands?

A. Yes.

Q. What did you see him do with his hands?

A. Move slightly towards my way to the right.

Q. Could you see anything in his hands?

A. Yes.

Q. What could you see?

A. A gun.

Q. When you saw the gun, what did you think?

A. I was scared. I reacted.

Q. When you saw him move his hands with the gun, where did you see his hands with the gun move to?

A. Towards me, where I was, towards my direction.

Q. Do you recall whether his window was open, closed or partially open?

A. It was open. It was open, yeah.

Q. What did you see, if anything, [Mr C] do with the gun?

A. Just point it to my direction when the car - put the window down, point it to my direction. Think he was confused on who it is, I'm not sure, but pointed to my direction.

…

Q. He pointed the gun in your direction. When he pointed the gun in your direction, was -

A. It wasn't sort of flush, but coming towards that way, sort of thing.

Q. Do you remember at that point in time where the gun was in relation to the car window or the door?

A. His gun?

Q. His gun.

A. His firearm? Somewhere next to the window, next to - up on the window, close to the window, a rear view mirror away - not out that far, but somewhere along there.

Q. What did you see when you saw the gun?

A. I grabbed my gun, loaded it quickly and shot towards [Mr C’s] direction.

Q. Why did you shoot towards [Mr C’s] direction?

A. To stop him from whatever he was going to do.

HIS HONOUR

Q. Just pause.

A. To stop him - say that again?

Q. I didn't catch your answer to the previous question. You said, "I grabbed my gun", you said, something, "quickly", "and shot towards [Mr C’s] direction". A. Yeah.

Q. Can you just say that again, so we can understand the complete answer? A. Yep. Grabbed it, I loaded the gun, so loaded means I pushed the muzzle back and, yeah, I pushed it back so, when you push it back, there's a bullet in the chamber, so it's ready to fire after you load it. So I loaded it and -

[DEFENCE COUNSEL]

Q. And what did you do with the gun after you loaded it?

A. Put my hand out the window. I wasn't even looking, I was looking this way towards [Mr G’s] way, and I fired two shots. I put my hand very low, fired two shots (indicated) and when I fired them two shots, [Mr G] went to drive off and another shot went off as he drove off, so that was three shots fired. Then, as the car drove off, I panicked, I thought, "This guy is going to chase me" or something, so I put my hand out the window and I let off more rounds.

Q. When you were firing those first three rounds -

A. Yep.

Q. - what were you thinking at that point in time?

A. Protect myself.

Q. From what?

A. [Mr C] shooting me.

Q. When you fired the further rounds, why did you fire those rounds?

A. Keep him away so he doesn't chase the car.

Q. I appreciate what we've just described is much slower than real time. Are you able to say, in terms of how quick the sequence of events were, from when you pulled up to when you started shooting first?

A. So from the start of the shooting to the end of the shooting?

Q. When you first pulled up, saw [Mr C] with the gun, and then started shooting. What was the time frame?

A. Very quick, it was - happened quick. I don't know if I can give you exact time frame, but it happened very quick.

Q. What about from when you pulled up to where you started shooting and [Mr G] pulled away and you finished shooting, what was the time frame for those events?

A. The first shots to the last shots?

Q. Yes.

A. A couple of seconds, four seconds, I'm not sure exactly, but it was quick.

Q. Did you see Yeyha Amood in the car?

A. For a split second when I seen [Mr C’s] gun.

Q. Were you aiming the gun at Yeyha at any stage?

A. No.

Q. You indicated, when you fired the first two shots off, that you turned your head away to the right; is that correct?

A. Yes.

Q. Why did you do that?

A. Just in case he fired in my direction, I was in the way.

Q. You indicated also in the first two shots you fired in a slightly downward direction?

A. Yes.

Q. Why was that?

A. Just to stop him from firing, so I thought "fire". I had - I didn't want to kill anyone.

Q. Do you recall what you were aiming at? Were you aiming at anything in particular?

A. I wasn't really looking, but I aimed low, so his door, I think his doors, I was aiming at his doors, bottom of the doors.

Q. You described a third shot which occurred as the car started pulling away? A. Yes.

Q. Just repeat what you described occurring then?

A. So, I fired two shots to begin with and the third shot - after I fired the two shots, [Mr G] started driving off, so when he started driving off, the third shot went off (indicated).

Q. You are indicating with your left hand?

A. Sorry?

Q. You were just indicating then with your left hand?

A. Yes.

Q. Was that the hand you were holding the gun in?

A. Yes, pretty sure left. I'm not sure what hand.

Q. Let's start again. Are you left or right-handed?

A. I'm right-handed, but I'm left-legged. I'm not sure, I think right, left. I can't -not a hundred cent. I think it was left, pretty sure it was - I think it was left.

Q. You indicated that you fired the shots that you did. Why did you stop firing at that point in time?

A. [Mr G] drove off.

Q. So why did you stop firing?

A. I thought that was enough to stop him from doing what he was planning or.” (T499.4-504.25)

41. Under cross-examination by the Crown the applicant gave the following relevant evidence:

“Q. You would have thought that [Mr C] would have known that it was you who shot him?

A. Yes, he seen me.

Q. Did he?

A. [Mr C]?

Q. Yes.

A. Yeah.

Q. Did your eyes meet?

A. Well, a couple of seconds, yeah.

Q. Because I thought it might have been the case that you had your face turned away and you might have thought -

A. Yes, at the time of the shots, when the shots went off.

Q. But before that -

A. Yes, I did.

Q. You looked [Mr C] in the eyes, did you?

A. That's how I seen the gun in his hand, and I seen it for a split second, yes, and when the shots went off that's when I turned around, not when - yeah.

Q. So, you locked eyes with [Mr C] before you shot him?

A. Yes.” (T537.25-T537.50)

“Q. You tell the Court that you were worried about [Mr C] wanting to do something to you and that's the background to this shooting - [Mr C]?

A. Yep.

Q. Why didn't you simply go to the police and say "someone's after me” -

A. It was the right thing to do, but if I had done that I would have made it a lot worse. Then I would have been called a dog, and I wouldn't have had only [Mr C] after me, I would have had everyone in that area after me. I should have done that, but it would have made it a lot worse.

Q. What could have been worse than the outcome of you accidently killing one of your best friends?

A. What could have been worse?

Q. Yes.

A. What I'm saying is, if I had gone to the police, not only [Mr C] would have been after me, a lot more people would have been after me. That's what I'm saying.” (T558.8-T558.26)

“Q. On Thursday, Mr Hamzy, you told us about how you had pulled the gun out of your pocket and put it in the seat in front of you seconds before you got to the car; do you remember giving that evidence?

A. Yep.

Q. Can you tell us when it was precisely that you put your window down? A. When I got to the car, [Mr C’s] car.

Q. And not while you were travelling along? Were you stationary when you put the window down?

A. Yep, pretty sure.

Q. You know what "stationary" means, I don't mean to be offensive?

A. You mean parked?

Q. Yes. So you've stopped, then put the window down?

A. Yep.

Q. Had you racked the gun by then, had you cocked the Glock?

A. No.

Q. Are you sure about that?

A. Yep.

Q. So you put the window down before you racked the gun?

A. Yep. It takes, like, not even a second to rack the gun.

Q. Thank you for that. It does, however, take more than a second to lower the window in the Lexus, doesn't it?

A. Maybe a couple.

Q. About three or four seconds, doesn't it?

A. I'm not sure exactly how long, no.

Q. You press the button and you have to wait a number of seconds-

A. It goes down pretty quick. It wasn't an old car. It was a new - new vehicle, so.

Q. New what?

A. It was a new vehicle. It wasn't old.

Q. Still I'd suggest to you it takes a few seconds?

A. I'm not sure exactly, I can't answer that.

Q. Three or four seconds. So you put the window down, then you say you took the gun from the area of the seat in front of you?

A. As soon as I put the window down, as soon as I seen [Mr C] and the gun that's when I've cocked it quickly and -

Q. Could you see the gun before you put your window down?

A. When I put it down, I seen it.

Q. You told us on Thursday that you'd taken the gun from your pocket and put it on the seat in front of you?

A. Yes.

Q. I take it you meant that, what, between your legs in the seat part that's there or on one side of your two legs?

A. In the middle.

Q. Of the seat you were sitting on, of course?

A. Yep.

Q. Because there is no seat in front of you, is there?

A. Nuh.

Q. So, you put the window down, you say you saw [Mr C’s] gun. It wasn't hanging out of the window, was it, his window?

A. Not hanging out exactly, but it was to that level of the window.

Q. To what level?

A. Where the window was. It wasn't outside the window, but he had it up. So, it wasn't out the window, but it was on the window level, sort of thing.

Q. The barrel was on the window sill?

A. I'm not sure - can't tell you details, but the gun was that - to the window level high, the height.

Q. It couldn't have been in any way protruding out of the car, could it?

A. Sorry?

Q. It couldn't have been protruding in any way outside the car, could it, the gun?

A. It could have been out of the car?

Q. [Mr C’s] gun could not have been protruding out of the car, could it?

A. Can you explain that in a different way, please?

Q. It couldn't have been sticking out of the window to any degree at all, could it?

A. At that time?

Q. Yes.

A. I don't know. He was holding it. I don't know. I can't tell you - I'm just

telling you what I seen.

Q. What I'm going to suggest to you is: [Mr C’s] window, the window next to him, the driver's side window, was closed, was shut, was completely up?

A. [Mr C’s] window?

Q. Yes; up?

A. No, it was not up. I was there. I seen it. It was not up. I confirm that a hundred per cent it wasn't up.

Q. You see, you've heard the evidence, haven't you, that the window was destroyed during this?

A. Sorry?

Q. The window was destroyed during this incident; you agree with that, don't you, you've heard that?

A. I think so.

Q. It didn't exist anymore, it wasn't in the door of the car, you've heard that? A. Yeah.

Q. And there was window glass all over the front and back seats?

A. Yeah.

Q. You've heard that evidence?

A. Yeah.

Q. And the only other window glass that could possibly have been anywhere inside the car was a very small hole in the windscreen, in the corner?

A. So, are you saying the window can't break? The window can still break if the window's down.

Q. If the window is down -

A. A hundred per cent the window was down; a hundred and fifty per cent the window was down.

Q. If the window is down, it's inside the door, isn't it?

A. It can still break, the window can still break if the window is down.

Q. It is entirely inside the door if the window is down, isn't it?

A. That's correct.

Q. So, if it broke because the door was shot, I'd suggest to you all the glass would have been within the door?

A. I can't answer that because I'm not professional in this glass thing, but I'm guaranteeing you a hundred per cent that the window was down. Not sure if it was all the way down, but it was mostly down, a hundred per cent. Could have been up a bit, I'm not sure, I didn't analyse it, but the window was down a hundred per cent.

Q. I'm suggesting to you that because the window glass was all over the front and back seats that it broke when you shot through the closed window?

A. That's incorrect. Did you get an expert, sorry, on this window thing?

Q. Mr Hamzy -

A. Cause this is important; this is very important.

Q. - we have got the expert saying that the window glass is on the front and back seats of the car?

A. But does the expert say that the window was up?

Q. Well, you see, it has to be up to get shot -

A. Well, it wasn't up.

Q. - doesn't it?

A. Hundred per cent it was not up. I'm telling you it was not up. I understand you're doing your job and getting fed information, but that's incorrect. This 5 window was down a hundred per cent. I don't know where you getting this window was up. I don't understand where youse are getting it from. Sorry if I'm talking fast or anything, but I'm a bit frustrated because I was there, I seen it.

Q. Let me put it to you this way. The window can be up, that is, closed, so completely filling the space where a car window is, it can be like that, or it can be completely open, in which case it is completely within the door; do you agree with those two things?

A. Sorry, I'm just telling you that the window was down. I don't know how to get into this down and window shattering, I can't answer it, but what I can answer is that the window was down, and I can confirm that a hundred per cent that the window was down. I'm not sure if it was down all the way, it could have been up a bit, I'm not sure how it broke or how this thing came up about, I'm not sure, but I can guarantee you that this window was down, a

hundred per cent. I understand you're trying to do your job and -

Q. Well, you might have a memory of being able to look right through the window, but I suggest to you, you were only able to do that after you shot the window?

A. That's incorrect. A hundred per cent that's incorrect.

Q. And if the window had been down and, therefore, within the door, the closed door of the car, even if it had been shot by any of your bullets, the glass would have ended up down within the door and not on the back seat and the front seat of the car?

A. Who knows how that happened but, I don't know, the window could have been up a bit, but I can tell you that the window was down, could have been maybe just a little bit up, not all the way down, I'm not sure, but the window was down a hundred per cent.

Q. It's quite hard to get the window a little bit up and a little bit down with automatic windows if you're in a hurry, isn't it?

A. I don't know, I can't answer that, I'm not sure, but I'm just guaranteeing you that the window was down. I was there, I seen it.

Q. Well, you're saying that you guarantee it was down?

A. Hundred per cent.

Q. But yet you're saying it could have been a little bit up?

A. Yes, I'm guaranteeing you it was down, but I'm not sure - there was maybe a bit up, I'm not sure, but the window was down. So I'm not sure how this window thing came about.

Q. How can you tell us if you saw it down if you don't know whether it was a bit up?

A. What I'm trying to say is the window was down, but it could have been sticking up a little bit, that's how maybe it broke, I'm not sure.

Q. You're only insisting that the window was down so as to make it seem that there was more danger to you because [Mr C] was ready to shoot you?

A. I'm swearing by God that the window was down.” (T565.44-570.6)

“Q. Do you say he was pointing a gun at you, at you?

A. Yes.

Q. Right at you?

A. Not right at me but leaning towards it, yeah.

Q. Leaning towards it?

A. Yeah.

Q. Didn’t you say –

A. Pointing my way, yes, and leading towards it, sort of thing.

Q. Pointing your way?

A. Yes.

Q. But not at your directly?

A. Well, it’s pointing my way, same thing.

Q. Pointing at what part of you?

A. I can’t answer that, sorry, I’m not sure of what part he was aiming at or what his intention were to get me, I’m not sure, but all I can promise you – guarantee you that he did have a weapon, 150% he had a weapon, and at that time I thought my life’s in danger, so I fired my gun.

Q. Could you see virtually down the muzzle of the weapon if it was pointing at you?

A. I don’t know, it was – he was pointing it towards me, a hundred per cent. I wouldn’t have – I’m pretty sure anyone in my situation, at that time I really thought my life’s in danger, so I let off the shots. And I think anyone in my situation that had that state of mind would do the same thing.

Q. But the problem about all of that, Mr Hamzy, you’d driven up to him with the gun there with you yourself?

A. Yes.

Q. You’d driven up to him?

A. Yes, to tell him what he’s doing parked there, to drive down to my mum’s. I had Sal’s words in my head at the same time, doing my head in, to “be careful, he’s going to get you”, so my head wasn’t all there.

Q. If you’re frightened of someone, you don’t drive right up to them and give them a go, do you?

A. Like I told you, I didn’t think anything was going to happen because it was at my mum’s place, and it was on a Sunday during the day, so I didn’t think he was would try and do anything at my mum’s house.

Q. If [Mr C] had a gun –

A. He did, a hundred per cent. Sorry, it’s not “if”. I understand you’re doing your job, but 150% I seen the gun, I was there. I understand you’re trying to do your job by telling, I don’t know, the jury that the gun wasn’t there, but a hundred per cent the gun was there.

Q. All right, if we accept that he had a gun, this is not a self-defence case. This is a case of two men going to a gunfight?

A. That's incorrect.

Q. Isn't it?

A. That's incorrect. I had no control over the vehicle. If I had the throttle right

in front of me, I would have put my leg down. I had no - I had no control of the

vehicle so what am I supposed to do? If I jumped out and ran, at that time I thought I would have been killed. I had no chance to do anything. I was stuck in the car where I didn't - I wasn't in the driver's seat, where I couldn't - I had no control of the vehicle whatsoever, so I panicked. I was stuck in a corner, sort of thing.

Q. Well, if you knew that [Mr C] was likely to have a gun with him, why do you tell [Mr G] to pull up alongside him?

A. So I can tell him to drive down to my mum's. Like I told you, I didn't think he would try to do anything at that time. I thought it was the best time for me to go approach [Mr C] or to go see him because it was at my mum's house. I

didn't think he would try anything to do at my mum's, and it was during the day. I think - I'm not sure what time it was; it was on a weekend. I didn't think - there was no way I thought in my head that he was going to try to do anything.

Q. Why did you get your gun out before you got close to the car if you didn't think he would try to do anything?

A. Being cautious.

Q. And he was only there at your mother's place because you had appointed that place as the meeting place, hadn't you?

A. Yes, I did, yes. I thought by me telling him "Come to my mum's", he's going to - whatever he was planning to do, he'll take a step back because I told him come to my mum's.” (T574.1 – 575.33]

42. Crime scene evidence was given by Senior Constable Keays. The evidence concerned the state of the driver’s side window on the Mercedes. The significance of that evidence will be set out in due course:

“CROWN

Q. Did you then take a number of photographs on a later occasion of the Mercedes when it was in a police holding yard?

A. I did.

Q. Photograph 76 you say there is a view of the driver’s door, driver’s window had been smashed by one of the bullets when the shooting occurred?

A. Yes.

Q. So your examination of the car established that the window had been damaged or wasn’t there?

A. Yes.

Q. Photograph 82 it’s hard to see but do you say that that is a photograph of the driver’s seat showing glass on the seat?

A. Yes.

Q. Photograph 83 shows some impact damage to the instrument panel of the car and also in the corner of the windscreen some damage there to?

A. Yes.

Q. Photograph 85 shows the backseat with glass fragments on it?

A. Yes.” (T223.13-T223.34)

“[DEFENCE COUNSEL]

Q. You referred in your evidence, in photograph 77, you referred to the fact that there is a view of the driver’s window and the driver’s window had been smashed by one of the bullets showing the glass in the seat – do you see that? Sorry, 76-82. So 82 is captioned at the bottom “Viewing of the driver’s seat showing the glass on the seat”?

A. Yes.

Q. Back to 76, it is just a view of the driver’s door and the caption is “Driver’s window had been smashed by one of the bullets when the shooting occurred”, were you able to determine where the window was actually positioned, whether it had been open, partially open?

A. No.

Q. The assumption implicit in the caption that the window was smashed by a bullet was there any evidence that that was based on or was it just an inference drawn from the fact the window had been smashed?

A. I believe it was just the window had been smashed. I’d need to see my notes.

Q. Do you have your notes with you?

A. No.” (T228.36-T229.6)

THE APPEAL

Ground 1 – The verdicts are unreasonable and cannot be supported having regard to the evidence.

43. In order to understand the jury verdict and the applicant’s submissions, it is necessary to have regard to the relevant legislation. Sections 418, 419 and 421 of the Crimes Act 1900 provide as follows:

“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.

…

421 Self-defence—excessive force that inflicts death

(1)    This section applies if:

(a)    the person uses force that involves the infliction of death, and

(b)    the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

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

(d)    to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.”

44. In accordance with those provisions, the applicant contended that the verdicts on Counts 2 and 4 are unreasonable and cannot be supported, having regard to the evidence because the Crown could not negative self-defence beyond a reasonable doubt. The applicant noted that in the present case, the effect of ss 418 and 419 was that he was not guilty of murder or manslaughter unless the Crown proved that either:

1. He did not believe that that the conduct was necessary to defend himself; or

2. The conduct was not a reasonable response in the circumstances as he perceived them.

In a murder trial, proof of the second but not the first limb will result in a verdict of manslaughter (based on excessive self-defence) (s 421).

45. The applicant submitted that the first question is about the subjective personal view of the accused. It is not a question to be considered with the benefit of hindsight. The second question is to be determined from an objective “reasonable” standard but approached from the perspective of the accused in that the evaluation is based on the circumstances as he or she perceived them. The Crown did not challenge this analysis.

46. The applicant further noted that the jury’s verdict of manslaughter establishes that they were not satisfied that the Crown had excluded as a reasonable possibility that the applicant honestly believed his conduct was necessary to defend himself. The applicant submitted that the question on this appeal is whether it was reasonable for the jury to be satisfied beyond reasonable doubt that his conduct (i.e. his response to the threat he perceived) was not reasonable in the circumstances as he perceived them.

47. The applicant submitted that it was necessary to identify the relevant “conduct” of his which was said to constitute the offence. As part of the analysis of the evidence to identify that issue, the applicant noted the following facts which he submitted were uncontroversial:

• At least 11 shots were fired from the same Glock 9mm pistol.

• 11 cartridge cases were recovered.

• The shots were fired from approximately one metre above ground from a moving object.

• Mr C and Mr Amood were seated in the front seats of Mr C’s Mercedes.

• The applicant was in a Lexus four wheel drive and so in a higher position than the Mercedes.

• The single shot that hit Mr Amood travelled straight through the right armpit, through the lungs and heart, coming out the left hand side. It travelled right to left, very slightly downwards, and very slightly back to front. The bullet did not hit a hard intermediate object before impacting with the deceased.

• Mr C’s wounds were to his thigh and ankle which were positioned below the car body.

• The evidence established that the applicant fired the first three shots into the car while he was pulled up alongside Mr C’s car. The later eight shots were fired as the car pulled away.

48. The applicant submitted that while there was evidence that the shots were fired in quick succession, given the number of shots and the fact that the position from which they were fired appeared to change, it was important to consider which of the shots were causative shots, i.e. which were the shots that hit Mr Amood and Mr C and the applicant’s location when those shots were fired.

49. Taking into account that evidence, the applicant adopted the finding of the sentencing judge as to the relevant “conduct” in the sentencing judgment as follows:

“15   The offender discharged three rounds, wounding Mr C with the intention of causing him serious harm. A bullet penetrated Mr C’s upper right thigh and ended in his abdomen and another penetrated his ankle. However, tragically and unintentionally, the offender also fatally wounded Yeyha Amood with a bullet that passed through his right to left upper chest, through his lungs and heart. He died at the scene.

16   Mr G proceeded to drive off but the offender continued to fire, eight times, back towards the front of the Mercedes.”

50. Applying that reasoning, the applicant identified the question in the appeal as: whether the Crown had proved beyond reasonable doubt that the conduct constituting the actus reus of the offence (i.e. the firing of the these first three shots) was accompanied by a lack of justification (in the form of self-defence). That is, was the act of firing the shots constituting the relevant conduct, namely the single shot that killed Mr Amood and the two shots that wounded Mr C with respect to either count, an excessive response in the circumstances as the applicant perceived them.

51. The applicant submitted that the verdict of guilty to manslaughter reflected the jury’s finding that there was (at least) a reasonable possibility that he believed that it was necessary for him to fire the three shots into the car that caused the injuries and death. However, they were satisfied beyond reasonable doubt that such response was not reasonable in the circumstances as he perceived them.

52. In order to test that conclusion, the applicant analysed the evidence adduced at trial.

53. He submitted that by finding him not guilty of Count 1, the jury was not persuaded beyond reasonable doubt that he was involved in the shooting of Ali. It could therefore be inferred that the jury did not accept the evidence of Mr O on that matter. He submitted that in finding him not guilty of murder, it can be inferred that the jury similarly did not accept the purported motive and evidence of premeditation given by Mr O (i.e. that he intended to shoot Ali and Mr C because they had made derogatory comments about his wife).

54. The applicant adopted the comments of the sentencing judge concerning the reliability of the evidence of Mr O:

“18   Count 1, the shooting of Alex Ali at Yagoona on 8 October 2012, involved a dispute that the offender was the shooter. The Crown case depended upon the jury’s acceptance beyond reasonable doubt of the evidence of a witness, “Mr O” whose credibility was seriously questioned. His evidence was that the offender had admitted to him that he had shot Alex Ali. The jury’s doubt as to that evidence is, in my respectful view, understandable.

…

21   The Crown alleged that the motive for the shootings on both 8 and 14 October 2012 was that the offender had heard from Ms Salwa Adel, Mr C’s estranged wife, that Alex Ali and Mr C had been referring to the offender’s wife as a “slut” and a “gold digger”. This evidence was based upon the evidence of Mr O who claimed to have overheard a conversation between Ms Adel and the offender shortly before 8 October 2012. An issue in the trial was whether, as the Crown contended, certain text messages between Ms Adel and the offender were consistent with the offender being concerned about the supposed disparaging remarks being made about his wife.

…

23   Given the jury’s acquittal of the offender on Count 1 and thereby the implicit rejection of the evidence of Mr O, it would be appropriate to have a doubt about his evidence of having overheard the conversation between Ms Adel and the offender. For myself, I would have had reasonable doubt about Mr O’s evidence as well. The manner in which he gave his evidence was not impressive but more significantly, his background, the circumstances in which he came to make his statement, and other matters (see summing up under “unreliable evidence”) mean that it would be very difficult to be satisfied of his reliability and truthfulness beyond reasonable doubt.”

55. The applicant submitted that this implicit rejection of the evidence of Mr O by the jury significantly damaged the Crown case. It was the Crown case that he had arranged the meeting with Mr C to shoot him because of the motive given by Mr O, i.e. the applicant had been trying to meet up with Mr C for some time to shoot him and had, in effect, ambushed him for that purpose.

55. The applicant noted that an important part of the Crown case was that Mr C and Mr Amood were unarmed at the time of the incident. It was the Crown case that the applicant had chosen the location of the rendezvous and had shot Mr C and Amood before they had time to do anything. It was the applicant’s case that it was Mr C who had been chasing him in the lead up to the incident because of his suspicions about his involvement with his wife. The applicant relied upon his own evidence and that of Mr C and the telephone records in the days before the shooting, to establish this.

56. Against the background of these competing cases, the acquittals in respect of Count 1 and murder in respect of Count 2, meant that the jury rejected the Crown case that the applicant had ambushed the men in the Mercedes. The applicant accepted that a finding that he had gone there with an intention to shoot would have meant that he was guilty of murder.

57. The applicant submitted that while it was clearly ill advised and unlawful for him to have armed himself with the pistol when going to meet Mr C the jury verdicts confirmed that this conduct did not demonstrate that he intended to shoot Mr C before he arrived at the scene. The applicant submitted that similarly the use of a particular car and seeking a tactical advantage in his interaction with Mr C (even if established) did not prove an intention to shoot before he saw Mr C and his pistol.

58. The applicant submitted that the acquittals also demonstrated that his and Mr G’s evidence that he pulled out the pistol before reaching Mr C’s car while evincing a preparedness to shoot if necessary was not, as the Crown contended, evidence of a determination to shoot Mr C. The applicant submitted that his decision to pull up alongside Mr C’s car may have demonstrated a desire to gain an advantage over Mr C but this was in the context of the concern held by him and was not, having regard to the verdicts, evidence of a pre-existing intention to shoot. The applicant submitted that on the jury’s verdicts this was not, as the Crown contended, a “gun fight” but a case of self-defence.

59. The applicant submitted that as a matter of logic, the jury must have found that Mr C had a pistol. This was because on the evidence the only threat to the applicant was that of being shot by Mr C. Thus the applicant could not have been found to have had the requisite belief that his conduct was necessary in his own defence, in the absence of him being confronted by a pistol which he believed Mr C was about to use. (Or, more correctly, the jury was not satisfied that he did not have such a belief.)

60. Put another way, the applicant submitted that given the lethal force which the relevant “conduct” involved, to find him not guilty of murder the jury must have rejected the Crown’s contention that Mr C was not armed and instead have found that as a reasonable possibility, that he saw Mr C with a pistol in his hand.

61. The applicant submitted that it was only if he were confronted with a pistol that it was possible for the jury to have found that it was a reasonable possibility that he felt it was necessary to shoot into the car in which Mr C and Mr Amood were sitting. The applicant submitted that if he did not see a firearm in Mr C’s hand, his conduct could never have been necessary (and he would have failed on the first limb of self-defence).

62. The applicant submitted that the jury’s verdict could not be reconciled with the Crown’s contention that because no shots were fired by Mr C, this was evidence that he did not have a pistol. The applicant submitted that the fact that no shots were fired by Mr C said little about the positional readiness of the pistol which he had. The applicant submitted that because Mr C was shot twice when the first three rounds were fired before his car drove off, and because the incident was over in a matter of seconds, it is not surprising that Mr C was unable to fire any shots.

63. The applicant submitted that Mr C’s possession of a pistol was consistent with the evidence of the only witnesses to the event, i.e. Mr C, Mr G and the applicant. (The evidence of Mr C is at [34] hereof and that of Mr G at [39] hereof. The evidence of the applicant is at [40]-[41] hereof.) In addition, Mr C said that after the shooting he gave his pistol and phone to a man and told him to get rid of it (T356.6). There was evidence of a large number of people around the car speaking with Mr C before emergency services arrived, including a man who spoke to Mr C and then drove off. No phone was recovered from Mr C when he was taken to hospital. The applicant submitted that this latter consideration has to be taken into account with the fact that Mr C had been in telephone contact with him not long before the shooting. Finally, the applicant relied upon the evidence of Mr O (T64.26) where he recounted a conversation which he had with Mr G. Mr O’s evidence was that Mr G told him that at the time of the shooting he had seen Mr C holding something metal in his hand which was hanging out of the driver’s side window. The applicant also relied upon other evidence of Mr O (T65.37) where he said that following the shooting when Mr C was explaining to him what had happened, Mr C had said “I think he [the applicant] seen a gun in my hand”.

64. The applicant submitted that the evidence given by the applicant, Mr C and Mr G was broadly consistent and was all one way in relation to Mr C holding a pistol at the time of the shooting. The applicant accepted that the sentencing judge had expressed serious misgivings about the credibility of each of those witnesses. He submitted that while there might be reason to doubt the reliability of portions of the versions given by each of them, the jury must have found that the Crown had not excluded as a reasonable possibility that he was confronted with the threat of a pistol held by Mr C such that he believed it was necessary to discharge his own weapon in a way which killed Amood and injured Mr C. This was the only explanation for their acquittal on the murder count.

65. The applicant submitted that ultimately all of the evidence was consistent with a finding that he believed his conduct, i.e. firing the lethal shot, was necessary to defend himself (or at least that this was not excluded). He submitted that given his position in a car which could be driven away, such a belief can only have been that he was about to be shot, i.e. that the circumstances as he perceived them were that Mr C was armed with a pistol which he was about to use.

66. The applicant challenged the contention by the Crown that at the time of the shooting the side window of the Mercedes next to the driver was in the raised position. He noted that the Crown had relied upon the presence of broken glass in the car as rebutting the evidence of Mr C, Mr G and the applicant that Mr C was armed. The Crown had also relied upon it as reflecting adversely on the credibility of those witnesses. The Crown had submitted that it was also significant in assessing the immediacy of the threat facing the applicant, i.e. whether Mr C was ready to or could have fired shots at him. The applicant submitted that although the acquittals demonstrated that the jury rejected the Crown case theory that he had ambushed an unarmed man, it remained necessary to consider the glass evidence in the context of the proportionality of his response.

67. In order to rebut this evidence, the applicant relied upon the following analysis of the evidence:

• He said that the window was open (T501.27), denied that it was closed but under cross-examination accepted that it could have been partially open.

• Mr C said that the side window was open and that his pistol was on top of or out of the window (T355.18; T361.35-.45). In cross-examination he said that the window was open but could not remember how much it was open and could not say whether it was fully or partially open (T376.30-.42).

• Mr G said that Mr C’s window was all the way down (T401.14, T433.10).

• Mr O said that Mr G told him “He’s seen something metal hanging out … [Mr C’s] driver’s side window” (T64.26).

• Photos 82 and 85 of Exhibit L showed glass fragments on the driver’s seat and the rear seats of the Mercedes.

69. The applicant noted that there was limited evidence as to the mechanism of the damage to the Mercedes side window and no forensic examination as to the position of the window when it was damaged. There was no evidence of any examination of the inside of the door to confirm whether the window was partially closed at the time it may have been broken.

70. The applicant submitted that the above evidence and that given by Senior Constable Keays at [42] hereof was the totality of the evidence about the glass that was found in the car. As a result, the applicant made the following submissions:

• There was no evidence as to the quantity of glass recovered from inside the car nor as to whether the amount of glass recovered was that which would be expected to be recovered from a window if the window was completely closed, completely open or if it was in a partially-open position.

• While some of the glass may have come from the driver’s side window, there were other sources that could have accounted for the presence of all or some of the glass, e.g. the driver’s side mirror, the driver’s side windscreen and the instrument panel.

• There was no evidence as to whether there was any glass inside the door of the Mercedes or whether the interior of the door was ever examined.

• There was no evidence as to the time it might take to close or lower the window in the Mercedes.

71. The applicant submitted that when regard was had to the whole of the evidence, there was no proper basis to conclude that the window of the Mercedes was fully closed and if partially open, the extent to which it was open. He submitted that the evidence did not establish that Mr C was incapable of quickly firing a shot in his direction, either through a closed window or an open window. He submitted that a conclusion that Mr C was not so capable and that this was part of the circumstances as perceived by him, would be inconsistent with a perception of an immediate threat and would thus be inconsistent with the acquittal for murder.

72. In relation to other possible courses of action, besides discharging his pistol, the applicant relied upon the following evidence which he gave under cross-examination (T575.3):

“CROWN

Q. All right, if we accept that he had a gun, this is not a self-defence case. This is a case of two men going to a gunfight?

A. That's incorrect.

Q. Isn't it?

A. That's incorrect. I had no control over the vehicle. If I had the throttle right

in front of me, I would have put my leg down. I had no - I had no control of the

vehicle so what am I supposed to do? If I jumped out and ran, at that time I thought I would have been killed. I had no chance to do anything. I was stuck in the car where I didn't - I wasn't in the driver's seat, where I couldn't - I had no control of the vehicle whatsoever, so I panicked. I was stuck in a corner, sort of thing.” (See [42] hereof for the full context,)

73. The applicant submitted that he was faced with a weapon capable of doing serious or lethal injury to him and to Mr G. It was held by a person whom he believed wanted to harm him and who had a reputation for violence. The applicant submitted that at the time he saw the pistol, he was in close range of it, was not the driver of the vehicle and could not cause the vehicle to exit the scene other than through verbal commands. Even if he could have caused Mr G to accelerate from the scene, he would have been exposed to Mr C and his pistol for a sufficient time to be killed. He submitted that for the reasons given, flight on foot was not a realistic alternative. The applicant submitted that he had very little time within which to make a decision. He submitted that he was not required to wait for Mr C to fire a shot. Had he done so, there was a high likelihood that he would have been killed. He submitted that his response in firing his weapon towards the threat could not be reasonably excluded as a reasonable response in the circumstances as he perceived them.

74. By way of conclusion, the applicant submitted that in order to find the first limb of self-defence made out, the jury must have accepted as a reasonable possibility or could not exclude as a reasonable possibility:

1. That he had not gone to the scene with a pre-existing intention to shoot Mr C (but accepting that he had unlawfully and irresponsibly armed himself beforehand).

2. That he did not have the intention to fire his weapon before he was confronted with Mr C’s weapon.

3. That Mr C had a pistol in his hand which the applicant believed was going to be fired at him by Mr C.

75. The applicant submitted that self-defence was made out because the only thing raised by the evidence upon which he could have perceived a need to defend himself (within s 418(2)(a)) was a bullet fired at close range. He submitted that the second limb of self-defence therefore fell to be considered on the basis that he was faced by a person at close range with a pistol he was about to fire. The applicant submitted that upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that his conduct was not a reasonable response in the circumstances in which he perceived them.

76. Alternatively, he submitted that the Crown could not negative the reasonable possibility that his conduct in firing the three shots that hit the two men was a reasonable response to the immediate threat perceived by him.

Consideration

Relevant legal principle

77. The test to be applied in an appeal on this ground is set out in M v The Queen [1994] HCA 63; 181 CLR 487. The High Court has reaffirmed the test in a number of cases including SKA v The Queen [2011] HCA 13; 243 CLR 400 in which French CJ, Gummow and Kiefel JJ (at [11] ff) said:

“11   … 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'."

78. These principles were recently summarised by this Court (Hoeben CJ at CL; Schmidt and Wilson JJ) in CR v R [2017] NSWCCA 29 as follows:

“77   When considering whether a verdict is unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for this Court is whether notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to let the verdict of guilty stand (M v The Queen [1994] HCA 63; 181 CLR 487 at 492; SKA v The Queen [2011] HCA 13; 243 CLR 400).

78   The principles which inform the review of evidence to be undertaken by an appellate court where it is contended that a verdict is against the weight of evidence were explained by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen [2007] HCA 30; 230 CLR 559. Hayne J after noting that the evidence adduced at the trial in that case did not all point to the applicant’s guilt said:

“113 … But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …” [Footnotes omitted]

79   In answering the question whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the jury was the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses. As McHugh, Gummow and Kirby JJ observed in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [59]:

“59 … involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.”

80   More recently in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 the court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said:

“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" 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.” [Footnotes omitted]”

Smith v R – The offender formed the view that it was necessary to defend himself based on his perception that he was about to be attacked by three men. Only one shot was fired. The deceased did not have a gun, but the offender must have believed that he did and was about to use it. The offender was aged 22 at the time of the offending. His early life was disrupted by the separation of his parents when he was very young. His mother suffered from mental illness and his father was said to be an alcoholic. The offender used alcohol from the age of 13 and amphetamines from the age of 16. His criminal record included a number of offences of assault and other violent behaviour. He had served two periods of imprisonment and was on parole for an offence of reckless grievous bodily harm in company. The Court of Criminal Appeal held that the offender’s background was a modestly mitigating factor on resentence, making reference to Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

178. In summary, none of the cases referred to by the applicant are directly analogous with the current matter. While there are points of similarity, there are other points of dissimilarity warranting different discretionary determinations. For example, unlike any of the above cases, in this matter, the deceased’s life was taken in circumstances where he was not the intended victim and he did not offer any threat to the applicant.

179. The sentence imposed by his Honour in the current matter properly reflected the fact that the applicant took a loaded handgun to a meeting planned with Mr C with foresight that there could be a confrontation and he may use it. The sentence reflected the extent to which the applicant’s conduct in discharging his firearm so many times departed from what would have been a reasonable response in the circumstances his Honour found were perceived by the applicant. Further, the offending occurred while the applicant was subject to a good behaviour bond and there was little in the applicant’s subjective case that assisted him. The statutory guidepost in the form of the maximum penalty of 25 years was properly taken into account by his Honour.

180. In the circumstances it cannot be said that the sentence imposed upon the applicant for the manslaughter offence was unreasonable or plainly unjust. This ground of appeal has not been made out.

Conclusion

181. The orders which I propose are:

1. Leave to appeal against conviction be granted.

2. The appeal against conviction be dismissed.

3. Leave to appeal against sentence be granted.

4. The appeal against sentence be dismissed.

182. SIMPSON JA: The relevant facts and circumstances are fully set out in the judgment of Hoeben CJ at CL, which I have had the advantage of reading in draft. It is unnecessary to repeat them. What is obvious is that the evidence in the trial presented significant difficulties both to the jury and to the sentencing judge when it came to sentencing. That was because of the lack of credibility of the principal witnesses.

183. Section 421 of the Crimes Act 1900 (NSW) also presents difficulties, of construction. The section provides what is commonly called a “partial defence” to a charge of murder. When made out, the partial defence reduces what otherwise would be murder to manslaughter. Although the terms of s 421 are set out in the judgment of Hoeben CJ at CL, it is convenient to repeat them:

“421  Self-defence—excessive force that inflicts death

(1)  This section applies if:

(a)  the person uses force that involves the infliction of death, and

(b)  the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

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

(d)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2)  The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.”

184. Relevantly for present purposes, the elements of the partial defence are:

(i)  that a person uses force that involves the infliction of death;

(ii)  that the person believes that the conduct (that is, the use of force that involves the infliction of death) was necessary to defend himself or herself; and

(iii)  that the conduct was not a reasonable response in the circumstances as perceived by the accused person.

185. By s 418, the second and third elements also arise in relation to the offence of wounding with intent to cause grievous bodily harm.

186. By s 419, the prosecution has the onus of proving each element beyond reasonable doubt. The first element was not in issue; on the murder charge, it was common ground that the applicant used force that involved the infliction of death. Similarly, it was not in issue that the applicant engaged in conduct that caused the wounding of Mr C.

187. Notwithstanding the sequence in which the elements are set out in subs (1) of s 421, it is logical to start with the belief of the accused person.

188. In this case, the jury verdict on the charge of murder requires acceptance of the proposition that the applicant believed that what he did (the only meaning I can attribute to the words “the person believes the conduct …”) was necessary to defend himself: that is, the applicant believed that it was necessary, in order to defend himself, to shoot, or to shoot at, Mr C. That must be the starting point in the consideration of the appeal against conviction. (I accept that, strictly speaking, the verdict means that the Crown had failed to negative the possibility that the applicant held the requisite belief. But once the Crown failed to do so, it had to be assumed that the applicant held that belief.)

189. It is in the consideration of what is intended by s 421(1)(b) that the difficulty of construction arises. The jury is required to consider whether the conduct (whether that was shooting Mr C, or shooting at Mr C) was a reasonable response in the circumstances as the applicant perceived them. The provision requires that the question of reasonableness be answered in the light of the circumstances as the applicant perceived them. The circumstances as the applicant perceived them included (by reason of the jury verdict) that it was necessary for him to do what he did (that is, shoot at Mr C) in order to defend himself.

190. So to construe s 421(1) would deprive the third element of meaning. It would mean that whether the third element was established would be dictated by the second, and have no real independent operation. “[T]he circumstances as he or she perceives them” in s 421(1)(b) must exclude the circumstance that the accused person believed that the conduct was necessary in order to defend himself. However, it does not exclude the basis upon which the applicant came to that belief.

191. A principal factual issue in this respect concerned the position of the window of the Mercedes driven by Mr C at the time of the events in question. It was the Crown case that the window was closed. It was the applicant’s case that the window was open (or partially open) and that Mr C was armed with a gun which he was about to use against the applicant.

192. I find it difficult to see how the jury could have concluded (as a reasonable possibility) that the applicant believed that it was necessary to shoot at Mr C unless it also accepted as a reasonable possibility that he believed the window was at least partially open, so that he was at risk of being shot by Mr C. That is because, in the event that the window was closed, other options were available to him – notably, to have the driver of his vehicle speed away from the area. The jury verdict is rational only on the basis that they accepted (as a reasonable possibility) that the applicant believed that the window of the Mercedes was open, or open sufficiently to enable Mr C to shoot at the applicant.

193. That makes the jury verdict more difficult to understand. If the applicant did believe that the window was open or partially open, and that Mr C was about to shoot, then there was little else that he could do other than fire his own gun – in other words, that his conduct was not shown to have been not a reasonable response.

194. The jury could hardly have concluded that the Crown had failed to exclude the reasonable possibility that the applicant had the relevant belief unless it also concluded that he believed that he was in imminent danger of being shot by Mr C. The conduct involved is so extreme that only a belief in imminent and dire danger (of being shot) could have founded a belief that it was necessary to shoot (as distinct from taking some evasive or preventative action). I take it that the jury accepted that the applicant believed that the window was open or partially open, and that Mr C was armed with a gun which he proposed to use to shoot the applicant. It is then necessary to consider the third element.

195. Section 421(1)(b) is in two parts. One concerns the belief of the accused person as to the circumstances. That is to be determined subjectively. The other is the reasonableness of the conduct of the accused person in response to those circumstances (whether or not the circumstances were objectively verifiable). The question of reasonableness is to be determined objectively.

196. The “belief” part of s 421(1)(b) does not depend upon an objective analysis of factual matters such as the position of the window. It depends upon what the jury concludes as to the applicant’s perception of those matters. For that reason, I cannot accept the reasoning of Hoeben CJ at CL at [95]-[118].

197. The trial judge did not make any specific finding, for sentencing purposes, about the applicant’s perception of the circumstances for the purposes of s 421(1)(b). In my opinion, it must be concluded that the applicant believed that the window of the Mercedes was open or partially open and that Mr C was about to, or was likely to, shoot at him. Otherwise, as I have said earlier, it is difficult, if not impossible, to explain the jury’s conclusion with respect to the applicant’s belief that his conduct (shooting) was necessary in order to defend himself.

198. The question which then arises is whether that conduct was a reasonable response to those circumstances. More accurately, the question is whether it was open to the jury to conclude that the Crown had failed to establish that that conduct was not a reasonable response to those circumstances. That is a question to be determined objectively.

199. Once it is accepted, as it must be, that the applicant believed that the conduct was necessary in order to defend himself, and that the basis for that belief was the antecedent belief that Mr C was likely to shoot him, then I find it impossible to reconcile the further conclusion of the jury that the conduct was not a reasonable response to the circumstances as he perceived them. Applying the principles stated in the authorities cited by Hoeben CJ at CJ at [77]-[78], such a conclusion was not open to the jury.

200. It follows that, in my opinion, the appeal against conviction on both counts must be allowed, and the convictions and sentences quashed.

201. McCALLUM J: I have read the judgments of Hoeben CJ at CL and Simpson JA in draft. I agree with Hoeben CJ at CL that both the appeal against conviction and the appeal against sentence should be dismissed. As to the appeal against sentence, I agree with the orders proposed for substantially the reasons his Honour has stated. It is appropriate to state my own reasons concerning the dismissal of the appeal against conviction.

202. The nature of the task for the appellate court in an appeal on the ground that the verdict is unreasonable, or cannot be supported, having regard to the evidence is well understood. The relevant principles have been referred to by Hoeben CJ at CL. There is one aspect of those principles that warrants particular emphasis in the circumstances of the present case.

203. The critical issue in the appeal is s 421(1)(b), which required the Crown to establish beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances as he perceived them. Questions of reasonableness require the application of objective community standards, which are very much within the knowledge of juries. So much is recognised in s 132(5) of the Criminal Procedure Act 1986 (NSW), which addresses the circumstances in which a court may refuse to make an order for trial by judge alone, providing as follows:

“Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

204. I do not mean to suggest that any different principle applies in an appeal that involves a question of reasonableness, but only to emphasise the traditional acknowledgement of the nature of the jury’s function in that context. I remain of the view I expressed in Hawi v R [2014] NSWCCA 83 at [480] that the advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.

205. It is common ground that the central issue in the present appeal is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances as he perceived them. I agree with the Chief Judge’s analysis at [83]-[88] above as to the conduct to which the jury could have had regard in making that assessment. I respectfully do not share his Honour’s conclusions discussed at [89] and following as to the findings of fact the jury must have made in order to be satisfied as to the element in s 421(1)(c) (that, in the circumstances as he perceived them, the applicant believed his conduct was necessary to defend himself) but I do not think it is necessary to adopt that analysis in order to answer the question raised by the appeal.

206. I agree with Simpson JA that although, strictly speaking, the verdict means only that the Crown failed to negative a reasonable possibility as to the applicant’s belief, the consequence is that the appeal should be determined on the premise that he did hold that belief. The critical question, then, is whether, having accepted that the applicant believed it was necessary to fire his pistol in the manner in which he did in order to defend himself against the perceived threat of being shot by Mr C, it was open to the jury to be satisfied beyond reasonable doubt that his conduct was not a reasonable response in the circumstances as he perceived them. Or, to adopt the language of Hayne J in Libke, the question is whether the jury must, as distinct from might, have entertained a doubt on that issue.

207. In considering that element, the jury had to undertake an evaluative assessment of both the degree of threat and the proportionality of the response. As Simpson JA has explained, the applicant’s belief had to be determined subjectively while the reasonableness of his response had to be determined objectively (but by reference to the circumstances as he perceived them). In that way, s 421 deliberately subjects an accused person’s subjective assessment of his circumstances to the test of objective community standards. Having accepted the existence of a subjective belief as to what was necessary for the purpose of self-defence, the jury is not obliged to treat that belief as a reasonable belief or a warrant for the accused person’s conduct. On the contrary, the section assumes that those are separate questions to be determined by the application of different tests.

208. Although I do not share the conclusions reached by Hoeben CJ at CL as to what must have operated on the jury’s mind, his Honour’s careful analysis of that issue reveals that it was open to the jury to regard the degree of threat posed by Mr C as something well short of the immediate threat of a gun pointed directly at the applicant with a readiness to shoot.

209. On that premise, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances as he perceived them. To test the issue in a different way, it was open to the jury to set a higher bar as to whether it was reasonable to fire the gun in the circumstances the applicant perceived than the applicant’s subjective belief that it was necessary.

210. Standing back from applicant’s minute analysis of the position of the window, the position of the gun and the number of bullets fired before and after the Lexus pulled away, the jury might readily have accepted that, in the world of the Brothers for Life, the applicant honestly believed in that moment that he had to shoot or be shot. In my assessment, having reached that conclusion, it was still open to the jury to take the view that the applicant was too quick to pull the trigger and that he fired his pistol recklessly.

211. The applicant’s own evidence was to the effect that, by the time he had seen that Mr C had a gun, Mr C had not even identified that it was the applicant in the car pulling up beside him:

Q. What did you see, if anything, [Mr C] do with the gun?

A. Just point it to my direction when the car - put the window down, point it to my direction. Think he was confused on who it is, I'm not sure, but pointed to my direction.

212. There was no cogent evidence that Mr C’s pistol was aimed directly at the applicant at any point. The fact that Mr C did not fire any shots at all is compelling evidence that the applicant was well ahead of the game in firing when he did. As Hoeben CJ at CL has explained, it was open to conclude that, in the time it took the applicant to load his gun, he could have commanded Mr G to drive off. The view he expressed in his evidence on that issue is not determinative on this second limb. Indeed, he could have done both things at the same time (given the command to drive and loaded his gun).

213. As to firing recklessly, the applicant’s own evidence was enough to support that conclusion:

Q. And what did you do with the gun after you loaded it?

A. Put my hand out the window. I wasn't even looking, I was looking this way towards [Mr G’s] way, and I fired two shots. I put my hand very low, fired two shots (indicated) and when I fired them two shots, [Mr G] went to drive off and another shot went off as he drove off, so that was three shots fired. Then, as the car drove off, I panicked, I thought, "This guy is going to chase me" or something, so I put my hand out the window and I let off more rounds.

214. Put another way, the jury was not obliged to treat the applicant’s belief as to the need to fire at least four bullets at close range into a car containing two people without looking where he was firing (in fact, looking away) as determinative of the question as to what is a reasonable response to the threat of a gun he did not perceive to be pointing directly at him.

215. For those reasons, I am satisfied that it was open to the jury to reach the verdicts it did on counts 2 and 4.

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“ANNEXURE A”

Area of Damage	Bullet Recovered	Photographs	Evidence from Ballistics Experts
(i) The right side of the front grille (driver’s side)	Ballistics Photographs (Ex K) Numbers 2, 3, 5	Projectile that caused the damage appears to have come from the front of the car (T198)
(ii) The right front headlight (driver's side)	Ballistics Photographs (Ex K) Number 6	Firearm was to the front of the car (T199)
(iii) Right side of the bonnet/front right panel	Bullet continued its path from there and then penetrated the fuse box of the car in the engine bay (T200)	Ballistics Photographs (Ex K) Numbers 7,8, 9 and 10	Firearm was in front of the car (T199-200)
(iv) Right (driver's ) side of the front windscreen	Bullet located in the steering wheel (T195)	Ballistics Photographs (Ex K) Numbers 11,12	Came from the front of the car (T200)
(v) Right (Driver's) side view mirror	No Ballistics Photographs Crime Scene Photograph (ex L 47, 48 and 76) (Better copy of photo 76 in Ex M) Bullet impact damage to the front and rear of the side mirror
(vi) Driver's door handle	Bullet ended up inside the door (T205) Driver 's door trim was removed and a bullet was located (T224)	No Ballistics Photographs, Crime Scene Photographs (Ex 1 number 76) better copy of photo 76 in Ex M
(vii) Driver's side Wheel	See this Crime Scene Photograph 43 - it was flat (T196)
(viii) Area of damage located on the B pillar on the passenger side of the motor vehicle - 62cm above the ground (the solid pillar between the front passenger and the rear passenger seat where seatbelt commences from )	Damage to inner door trim of the B pillar so panel was removed from the vehicle and a bullet was located	Bullet most likely travelled through driver's open window Ballistics expert -it could be possible that it is the same bullet that passed through the deceased (T 206)

Decision last updated: 28 March 2018