Jaghbir v R

[2023] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jaghbir v R [2023] NSWCCA 175

Hearing dates:

31 October 2022

Decision date:

12 July 2023

Before:

Button J at [1];
McNaughton J at [201];
R A Hulme AJ at [205]

Decision:

(1) Leave to appeal against conviction granted

(2) Appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – judge alone trial – accessory before the fact to murder – where deceased fatally shot by unknown intruders while asleep in apartment – where intruders entered apartment by unlocking front door with copied key in their possession – circumstantial case – finding that the applicant had provided the copied key to the intruders disputed – whether the verdict was unreasonable – whether Crown was obliged to prove beyond reasonable doubt that a named person had been one of the principal offenders– open to trial judge to return verdict of guilty – identification of particular person as one of the perpetrators not an indispensable intermediate fact – no requirement for identity of principal offender to be proven beyond reasonable doubt – sufficient that applicant believed person had been involved in the murder – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) s 346

Jury Directions Act 2015 (Vic) s 62

Cases Cited:

Burrell v The Queen [2009] NSWCCA 163

Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7

Dansie v The Queen [2022] HCA 25

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29

Humphries v R [2015] NSWCCA 319

King v The Queen (1986) 161 CLR 423; [1986] HCA 59

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

R v Botrus (No 4) [2020] NSWSC 1449

R v Davidson [2009] NSWCCA 150

R v Jaghbir (No 3) [2020] NSWSC 1383

R v Merritt (1999) NSWCCA 29

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

Slattery v R [2023] NSWCCA 117

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

Category:

Principal judgment

Parties:

Ahmed Jaghbir (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Game SC, P Lange, and E James (Applicant)
M Millward (Respondent)

Solicitors:
Abbas Jacobs Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/337859

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1383

Date of Decision:

12 October 2020

Before:

Davies J

File Number(s):

2017/337859

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 12 October 2020, following an 11-day trial by judge alone, Mr Ahmed Jaghbir (the applicant) was found guilty of being an accessory before the fact to the murder by unknown persons of Mr Kemel Barakat (the deceased). The offending was said to have occurred between 2 March 2017 and 10 March 2017, during which time the applicant was found to have provided the perpetrators with a key to the lock on the front door of the deceased’s apartment. The unknown perpetrators were thereby able to enter the deceased’s apartment without warning, and shoot him repeatedly.

The applicant was sentenced to a term of 11 years imprisonment, with a non-parole period of 6 years and 6 months.

Leave was sought to rely on two proposed rounds of appeal: first, that the verdict was unreasonable; and secondly, that his Honour erred in concluding that the Crown was not obliged to establish beyond reasonable doubt that a Mr Emad Sleiman had been one of the principal offenders.

Submissions made by senior counsel for the applicant focused on two main themes: asserted issues regarding the evidence of and findings about the key (and the lock which it fitted) used by the perpetrators to access the deceased’s apartment, and the asserted admissions of the applicant.

The Court held, allowing leave to appeal but dismissing the appeal on both grounds (Button J, with McNaughton J and R A Hulme AJ agreeing generally, but expressing no view about an aspect of the judgment of Button J pertaining to the question of indispensable intermediate facts in circumstantial cases):

As to the first ground:

1. The fundamental question is whether the verdict of guilty was open to the trial judge as the tribunal of fact. It is not a matter of analysing the reasons for verdict provided by the trial judge, and seeing whether or not they demonstrate error. Rather, it is a matter of bringing one’s own analysis of the evidence to the question.

   M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21; Slattery v R [2023] NSWCCA 117, applied.

2. It was well open to the trial judge to find the offence proven. The Court found that the lock brought to the deceased’s apartment by Mr Bidewell was still installed on the front door at the time of the murder. On this thesis, the applicant had possession of the key to that lock between 11 PM on 2 March 2017 and 7 AM on 3 March 2017, and between 4 PM and 5:55 PM on 3 March 2017, and therefore had the opportunity to have a duplicate made. Contrary to the submissions of the applicant, the Court considered that it would not be difficult to find in Sydney a compliant locksmith to duplicate a key overnight.

3. Further, the Court found there was a strong circumstantial case against the applicant that he had been an accessory before the fact to murder. Considering (amongst other things) the evidence of the applicant’s unguarded conversation in a motor vehicle after the murder, evidence of financial motive, evidence of some desire for revenge against persons, the evidence of CCTV footage showing the applicant’s somewhat unusual behaviour, and the evidence from the applicant’s conversation with his brother that he believed he possessed something (which could include information) that could harm Mr Sleiman, it was found to be established that the applicant duplicated the key.

As to the second ground:

1. The Court held there was no sense in which it was incumbent upon the Crown to prove beyond reasonable doubt that Mr Sleiman was one of the principals in the first degree in the murder. The criminal law does not insist that, before an accessory before the fact can be found guilty, the principal in the first degree must be convicted, or even personally identified: see s 346 of the Crimes Act 1900 (NSW).

   King v The Queen (1986) 161 CLR 423; [1986] HCA 59 Dawson J at 434 (Gibbs CJ, Wilson and Brennan JJ agreeing; Murphy, Mason and Deane JJ dissenting on other grounds), applied.

2. For the asserted admissions of the applicant to have probative force, it needed to be established that, at more than one time, the applicant believed that Mr Sleiman was to be, and had been, so involved. But that is a long way from knowledge of that fact, including in the sense of the proposition actually being true, and a very long way from the fact itself needing to be established beyond reasonable doubt.

JUDGMENT

1. BUTTON J:

Introduction

On the morning of Thursday 2 March 2017, NSW police officers broke into the Mortlake apartment of Mr Kemel Barakat, also known as “Blackie” (the deceased), in order to execute a search warrant pursuant to a Firearms Prohibition Order (FPO). In doing so, they damaged the front door to the apartment, to the extent that it was unusable. In particular, due to damage to the lock and parts of the door around it, it no longer provided any effective protection from intruders.

2. The deceased took very urgent steps to have the door not only repaired, but also to ensure that it was sturdy. One can infer without difficulty from his insistence, seen in the context of other evidence, that he was fearful of being seriously harmed in his own home.

3. By 10 March 2017, those fears had proven well-founded. That is because, in the early hours of that morning, assailants entered the apartment and repeatedly shot the deceased, in the presence of his then-girlfriend, Ms Hage.

4. Subsequently, on 7 September 2020, Mr Ahmed Jaghbir, also known as “AJ” (the applicant), was arraigned on an indictment before Davies J. It alleged that:

Whereas on the 10th day of March 2017, at Mortlake in the State of New South Wales, unknown persons did commit a serious indictable offence, namely murder Kemal Barakat … between the 2nd and 10th day of March 2017, at Sydney in the State of New South Wales, before the said serious indictable offence was committed, did procure, aid and counsel the said persons unknown to commit the said serious indictable offence.

5. The applicant pleaded not guilty, and a trial by judge alone proceeded.

6. The Crown alleged that the applicant, before the murder, intentionally provided assistance to the unknown perpetrators, knowing that, at the least, grievous bodily harm was to be inflicted intentionally upon the deceased.

7. Two acts of assistance with the necessary contemporaneous knowledge and intention were alleged. Because they constituted elements of the offence, at least one of them needed to be proven beyond reasonable doubt.

8. The first act was providing a key to the lock on the front door of the apartment at which the deceased was residing to the perpetrators, permitting them to enter it unexpectedly and harm him. The second was providing the perpetrators with information about aspects of the security of the apartment complex in which the deceased was residing.

9. On 12 October 2020, the trial was brought to an end when the learned trial judge returned a verdict of guilty of murder, and delivered reasons for that verdict: see R v Jaghbir (No 3) [2020] NSWSC 1383. Those reasons show that the trial judge was not satisfied beyond reasonable doubt that the act of assistance by way of provision of information about aspects of the security of the complex had been established: at [194]-[198]. For that reason, I shall not discuss that allegation further, because there is no sense in which it could be fairly re-agitated on appeal against the applicant.

10. Subsequently, a sentence of imprisonment was imposed upon the applicant, which is not the subject of appeal.

11. The applicant has appealed against his conviction. Leave to appeal on both grounds, and to file the notice of appeal after the filing period had expired, was sought. Two grounds were relied upon, the first being that the verdict was unreasonable. The second ground of appeal was that his Honour erred in concluding that the Crown was not obliged to establish beyond reasonable doubt that Mr Emad Sleiman had been one of the principal offenders.

12. For the following reasons, I would grant leave to appeal, uphold neither ground, and dismiss the appeal against conviction.

Undisputed facts

13. Comparison of the reasons for verdict with the written and oral submissions for the applicant shows that the following findings of fact made by the trial judge were not disputed on appeal. Indeed, both at trial and on appeal, the vast majority of facts were not in dispute. At trial, the issue was whether the circumstantial case against the applicant had been established to the criminal standard, which in turn depended upon the question of which inferences the trial judge was prepared to draw from the combination of those facts. The following is therefore largely derived from the reasons for verdict.

Layout of scene

14. The deceased lived in an apartment complex that consisted of two four-storey buildings. The front building faced onto a road, generally to the east. The rear building had behind it a river, generally to the west. Between the two buildings was a common area that included a swimming pool. Running down the southern side of the complex was a pathway that led from the road towards the river. There was a car park under the northern side of each building, and the two were connected. The apartment of the deceased, unit 6, was on the second floor of the rear building. It was on the southern side of that building. There were two apartments on each floor, and each apartment extended from the front to the back of each building.

15. The apartment complex had significant security, although in practice it was by no means impregnable. To enter each building, one first needed an electronic key, or to be “buzzed in” by way of intercom contact. A metal gate for which a key was required restricted access to the pathway on the southern side, although the trial judge found that it was “invariably not closed”. The car parks also required electronic access. There was a gate halfway down the southern pathway that provided access to the pool area that was between the two buildings. That gate also required electronic access; on the other hand, one could easily put one’s hand through the metal slats of the gate and open it from the inside.

16. To travel from the pool area to the rear building, one needed to pass either through a glass door or an adjoining steel grille door on the eastern side of that building. One could only enter through the glass door by way of key or electronic access. The steel grille door could only be accessed by way of a key. Those doors led only: to units 1 and 2 on the ground floor of the rear building; or to the car park of the rear building by way of a set of stairs down on its eastern side; or to the lift of the rear building. That lift provided access to the car park, but in order to access the higher floors of the rear building, one needed an electronic fob. As a further security measure, that fob provided access only to the particular floor to which it related.

17. One could also access the rear building from the river or western side. There were two adjoining doors on that side. The right-hand (as one faced it, the southern) door gave access to units 1 and 2 on the ground floor, the stairs to the car park, and the lift of the rear building. The left-hand or northern door gave access to the fire stairs, which led up to level 1. One could access both doors by way of key only.

18. In order to make one’s way by those stairs to a level higher than level 1, there was on each floor a steel grille gate that could only be opened by a key. Having said that, those gates were often left open; they did not have self-closing mechanisms; and they did not close of their own weight. Furthermore, a person coming down from a higher floor could open these gates by pulling down on a handle to access each lower floor in turn. Even less securely, if a person sought to obtain access to a higher floor, they could apparently put their hand through the slats of one of these grille gates and turn the handle on the other side of the door, in order to open it.

19. Finally, there were a number of CCTV cameras at various locations throughout the apartment complex. Camera 2 was above the front entrance door to the rear block from the pool area (in other words, to recap, the eastern side of that building), and Camera 3 was above the entry to the fire stairs at the back of the rear building (to recap again, on its river or western side).

20. In short, it could be said that this was quite a secure apartment complex in theory, although inevitably in practice it was somewhat less secure.

Chronology

21. Turning now to undisputed chronological findings of the trial judge, a number of persons were murdered throughout 2016. Among them was a man called Hamad Assad. The deceased and another man were suspects in his murder.

22. The wife of the deceased rented the apartment in November 2016. She moved out the following month. After that, the deceased lived there alone.

23. In January 2017, a Mr Dawson and Ms Stapley moved into unit 1 on the ground floor of the rear block, two floors below the deceased. They became acquainted with him.

24. The deceased and the applicant were friends and were in regular contact. They had a number of mutual friends, including a Mr Esam Elkodat.

25. By February 2017, the deceased was under close surveillance by the police: he had had an FPO served on him; his phone calls were monitored; and police regularly visited him at the apartment.

26. At 2:30 AM on 4 February 2017, the deceased was shot at while sitting in his car, but survived.

27. The applicant lived with his parents in Lidcombe, another suburb of Sydney. He worked as an electrical trade assistant and performed maintenance work for the government. Between 8 March 2017 and 8 November 2017, his mobile phone was intercepted. There was evidence of other police investigations of him before that time, and that an FPO had been served on him as well.

28. The applicant, a Mr Emad Sleiman, and a Mr Mustafa El-Hallak were all close associates.

29. As the opening of this judgment recounts, at about 6:30 AM on 2 March 2017, the police carried out a search of the apartment of the deceased pursuant to the FPO. No one was home, and access was obtained by forcing entry through the front door. The result of the damage to the door and lock was that the door could no longer be secured.

30. The real estate agent for the owner became aware that morning of the damaged door.

31. At about 2:15 PM on the same day, she met with the deceased and a Mr Bidewell, who was a locksmith and fire door expert. Mr Bidewell told the deceased that he would repair the door whilst a new, custom-made “fire door” was awaited. On the contrary, the deceased said that he himself would rather arrange and pay for the installation of a new “solid core door” until the fire door was ready. The real estate agent agreed to that.

32. Mr Bidewell left at the apartment a new Lockwood 001 dead latch in a red box. The idea was that the deceased would use it on the temporary replacement door; to be clear, on the door that would be installed by the deceased to replace the damaged door, and before the arrival of the custom-made fire door. The plan of Mr Bidewell was to reuse that lock on the new fire door, when it was available to be installed.

33. In accordance with the above plan, the deceased phoned an associate, Mr Gideon, shortly afterwards. The deceased told Mr Gideon that the real estate agent proposed only to “patch” the damaged door until the fire door was ready, but the deceased did not wish to leave things in that state. He asked Mr Gideon whether he could get an unidentified person (“Snake”) to obtain a new door and come and fit it. The deceased said to Mr Gideon that he possessed a lock, but he would send by text the measurements for the door. In the conversation between the deceased and Mr Gideon, the deceased emphasised that he already had a lock. He also requested that the unidentified person bring “one for the inside”.

34. At about 5:40 PM on the same day, Mr Elkodat arrived at the unit. While there, he contacted the applicant, and asked him to change a door for him at the home of the deceased. That constituted, clearly enough, a change in plan from that involving the person “Snake”. The applicant said that he could have a person called Dario there within the hour, and asked Mr Elkodat to send the measurements of the door. Shortly after that, the applicant and the deceased spoke by phone about those measurements.

35. The applicant then called Mr Dario Ratinon, who was a work colleague of his, and a handyman. The applicant asked Mr Ratinon to fix a door that night. The applicant said that he himself would buy a new door, but requested that Mr Ratinon secure the original, broken, door that evening.

36. Mr Ratinon arrived at the apartment at 7:45 PM, a little over twelve hours since the original door was damaged. The deceased showed him the damaged front door. The deceased also telephoned the applicant, to complain that Mr Ratinon did not have with him a new door. Mr Ratinon spoke to the applicant and said that he had not been able to find a new door at a hardware store that evening, but he would secure the damaged door with plywood sheets, and would put a new door in the front doorway of the unit the next day.

37. Mr Ratinon secured the damaged door by screwing sheets of plywood over the damaged areas on the inside. He also installed a Lockwood dead latch lock that he said he had found inside the unit, on the floor. Mr Ratinon could not later recall where the keys to this lock were, or if the latch was still in its packet when he located it. That was surely the lock that Mr Bidewell had left at the apartment earlier that day. With the damaged door patched and a new lock installed on it, Mr Ratinon then departed.

21. At 8:57 PM, the applicant told the deceased by phone that he had obtained a door, which he would drop off in an hour, and would arrange for someone to install it the following day. The applicant then telephoned another work colleague, Mr Norton, and asked him to replace the door to the apartment of the deceased the following day.

22. At 10:46 PM, the applicant arrived at the apartment complex with the new door (this can be thought of, then, as the second door). The applicant and the deceased transported the door up in the lift to the unit.

23. At 11:07 PM, CCTV footage shows the applicant leaving the rear unit block by way of the eastern door that provided access to the pool area.

24. At that stage of the Thursday then, the original damaged door was in place and patched; the lock delivered by Mr Bidewell had been installed on the first, damaged door by Mr Ratinon; and later on that evening the applicant had delivered a second door.

25. At 11:25 PM, the applicant sent the following text message to his work colleague, Mr Norton (who, to repeat, was to install the second door the following day): “Unit 1 will let you in and u can use the lock that’s there because Dario installed a new one and I have a spare key to let u in I will give it to u in the morning.” (emphasis added)

26. At about 7 AM the following day, Friday 3 March 2017, the applicant gave one key to the apartment of the deceased to Mr Norton, and also $150 in payment for doing the job of installing the second door. Mr Norton and another colleague, Mr Habib, arrived at the complex and, in accordance with the text of the applicant, were given access to the car park by Mr Dawson.

27. They walked up to the ground floor of the rear building, but could not operate the lift upward. Mr Dawson told Mr Norton that he would need a swipe pass to operate it. Mr Norton telephoned the applicant, who telephoned the deceased, and passed on the problem to him. The deceased told the applicant to tell Mr Norton to use the stairs on the western side of the rear building to walk up to the second floor. The deceased also asked the applicant to tell Mr Norton to tell “my neighbour” to let Mr Norton in. The applicant duly passed on the access plan to Mr Norton.

28. The two men accessed the stairwell from the western side of the rear building. As explained by me at [19], they were able to open the steel grille door on level one by reaching through it. Once on the second floor, Mr Norton opened the door to unit 6, using the key that the applicant had given him at 7 o’clock that same morning.

29. Mr Norton and his colleague found that the (second) replacement door provided by the applicant was not, in fact, a solid core door. They telephoned the applicant to say that he had obtained the wrong door.

30. At 8:22 AM, Mr Norton and Mr Habib departed without installing the second door. In other words, the original damaged, but patched, door remained in place, with the lock provided by Mr Bidewell still attached to it.

31. At 8:46 AM, the applicant telephoned Mr Sleiman, a person who was on parole for murder. The connection was for 85 seconds.

32. At 2:47 PM, the applicant again telephoned Mr Sleiman. This call lasted only 29 seconds.

33. At about 4 PM, Mr Norton returned the key with which the applicant had provided him earlier that day. That was when they were both at work.

34. At 5:55 PM, the applicant and Mr Ratinon arrived at the rear building by way of the southern path. The deceased let them into the unit. The applicant and Mr Ratinon removed the original front door that had been patched, and took it out of the building. Notably, CCTV shows that the lock that had been installed on the original damaged door by Mr Ratinon, and previously provided by Mr Bidewell, was not then attached to that original front door.

35. Mr Ratinon installed a new door that he said had been brought by the applicant with him (that is, a third door). There may have been some subsequent confusion in the mind of Mr Ratinon about whether he installed a mechanism known as a ‘door closer’ on the new door, but nothing turns on it.

36. In his first statement to police of 31 May 2017, Mr Ratinon said that the lock he installed on the new door that evening had been brought to the apartment by the applicant; that is, when they both arrived shortly before 6 pm that day. Mr Ratinon said that the packet of the lock had been opened, and there were two keys for it. In his second statement of 6 June 2017, however, Mr Ratinon said that he was not sure if he installed a new (that is, second) lock, or if he used the same lock that he had put on the (original, damaged) door the evening before (that is, of course, the lock provided the day before by Mr Bidewell). The implications for ground one of this equivocation will be discussed later.

37. Mr Ratinon saw the applicant hand the deceased “a key on a key ring”. Mr Ratinon was not sure if there were two or more keys handed over; whether they were gold or silver in colour; or whether they were original keys or cut keys.

38. At 7:30 PM, the applicant and Mr Ratinon left the apartment complex by way of the southern pathway.

39. At 7:31 PM, the applicant made a phone call to Mr Sleiman, which lasted for 25 seconds.

40. At no time prior to the murder of the deceased on 10 March 2017 did the real estate agent receive any keys for the lock on the door (whichever lock it may have been) installed by Mr Ratinon.

41. On Sunday 5 March 2017, the applicant and the deceased spoke by telephone. The finding of the trial judge was that the deceased was asking the applicant to obtain an additional lock to be placed on the inside of the door: “probably a bolt with a security chain” at [51]. Although the applicant said that he would come around that afternoon or the following day, Monday 6 March 2017, no such interior lock was ever installed.

42. At about 3:30 AM on Wednesday 8 March 2017 (that is, only six nights after the original damage to the first door), four armed intruders entered into the apartment complex by way of the southern pathway. They obtained access to the pool area between the two buildings by the following method.

43. Unit 2 was on the southern side of the ground floor of the rear building (that is, two stories below the apartment of the deceased). The balcony of unit 2 was near the entry to the foyer of the rear building from the pool area. There was a sliding door into one of the bedrooms of unit 2 from its balcony. The lock on that balcony door did not work, and was often left unlocked.

44. One or more of the intruders gained access to the foyer area of the rear building by way of the balcony door, walking through unit 2, and then out into the ground floor foyer. The glass entry door on the eastern side of the rear building was then opened from the inside.

45. Whilst in the building complex, the intruders removed the handles from the adjacent steel grille door (which was, it is to be recalled, also on the eastern side of the rear building), which gave access from the pool area to the rear building foyer area and to the rear car park stairs. Those handles reappear in this chronology 48 hours later: see [76] of this judgment.

46. The intruders departed. Although they had gained access to the ground floor foyer of the rear building in which the apartment of the applicant was located, there is no evidence that they were able to go further.

47. Between 2:52 PM and 3:48 PM on 8 March 2017, Mr Sleiman and the applicant had three short phone calls. At the latter time, CCTV footage shows the applicant getting out of a van and entering the building where Mr Sleiman lived in Auburn, another suburb of Sydney. The applicant departed that building at 4:08 PM.

48. At 5:15 PM on the same day, the applicant telephoned the deceased, and asked if the applicant could come down to measure to “put the lock in”. The trial judge drew the inference that this was a reference to the further, interior, lock that had been discussed previously.

49. At 5:50 PM, the applicant walked west down the southern path, and through the gate into the pool area between the two apartment buildings. CCTV captures his actions as he walked towards the glass door on the eastern side of the rear building. What can be discerned is a matter of dispute, and will therefore not be discussed further here: see [169]-[170] for my analysis.

50. At 6:15 PM, the applicant left the apartment complex.

51. Two minutes later, at 6:17 PM, Mr Elkodat telephoned the applicant. The applicant told Mr Elkodat that he had been at the home of the deceased with regard to the new, extra lock that was to be installed.

52. At 8:46 PM on Thursday 9 March 2017, the deceased arrived at an address in the suburb of Concord where he joined Mr Elkodat and others for a poker game. At 9:23 PM, Ms Hage joined him. At 9:58 PM, the two of them left together. At 10:30 PM, they arrived back at the apartment complex and entered unit 6. At 10:52 PM, police attended at the home of the deceased. They buzzed his unit on the intercom, and he met them at the southern side gate.

53. Separately, at 11:23 PM, the applicant arrived at his home in Lidcombe, and remained at home for the rest of the night.

54. Separately again, at 10:39 PM, Mr Sleiman appears on CCTV arriving at his residence. Jumping forward a little for a moment, CCTV shows him leaving again at 9:11 AM on the following day, 10 March 2017.

55. At about midnight between 9 March and Friday 10 March 2017, Ms Hage went to bed and slept. Later, she went out to find the deceased asleep on the lounge in the living room of the apartment. She invited him back to bed, and they both went to sleep there.

56. At 2:19 AM, CCTV shows four armed and disguised assailants walking west along the southern pathway. They entered the rear building by way of the door to the fire stairs on the western, river side of it.

57. At about 2:30 AM, the girlfriend of the deceased was awoken. Multiple gunshots were fired at the deceased, who died a short time later.

58. Ms Hage then rang a number of persons, including Mr Elkodat. Nothing turns on those conversations.

59. The vehicle used by the assailants had been stolen many months before, in June 2016. CCTV shows that it travelled through a number of suburbs of Sydney between 1:59 AM and 2:15 AM. From 2:32 AM it is shown travelling through further suburbs, until it arrived in Belmore, where it was set alight. Later, when it was examined, two fire damaged doorhandles were located inside it. They were able to be identified as the handles that had been removed about 48 hours beforehand in the early hours of 8 March 2017 from the security grille door that gives access from the pool area to the foyer and car park of the rear block by way of its eastern side.

60. On Saturday 11 March 2017, Mr Elkodat and the downstairs neighbour Ms Stapley spoke on the phone about whether the police were still at the apartment of the deceased. Mr Elkodat expressed the desire to access the apartment so that he could pack up the belongings of the deceased.

61. On 16 March 2017, Mr Elkodat spoke to the wife of the deceased. She told him that she would pick the key up for the new lock for the front door of the deceased’s apartment from police the following day, and give it to Mr Dawson, the partner of Ms Stapley. Subsequent phone calls demonstrate that Mr Elkodat did obtain the key for the apartment and commenced to clear it out.

62. On 20 March 2017, police gave the real estate agent a set of keys to the further lock that they had placed on the door to the apartment, as a result of them having removed and seized, at 3:10 PM on Saturday 11 March 2017, the crucial lock that was on the front door at the time of the murder.

63. At the end of March 2017, police contacted Mr Dawson, the downstairs neighbour, enquiring as to who had the keys to apartment 6, so that they could be returned to the real estate agent. Ms Stapley contacted Mr Elkodat, and told him that he needed to return those keys to the real estate agent. Mr Elkodat left them in the letterbox of Ms Stapley for her to return them.

64. On 3 April 2017, Ms Stapley did indeed return the keys to the agent, but kept the fob key that was on the keyring because she wanted a new one for the use of her partner and herself.

65. On 12 April 2017, the police obtained a set of keys from the real estate agent for the apartment of the deceased. It included seven keys, along with a fob key that was, in fact, irrelevant.

66. Reverting a little in the chronology, on 10 March 2017, Mr Sleiman sent and received text messages using a cell site tower near his own home at 12:04 AM and 4:21 AM.

67. At 9:02 PM on 10 March 2017, the applicant was seen walking in front of the building where Mr Sleiman lived, talking to another man.

68. At 9:12 PM on 12 March 2017, the applicant and two other men entered the apartment of Mr Sleiman. At 9:56 PM, the applicant and one of the other men departed the building.

69. At 9:20 PM on 29 March 2017, Mr Sleiman was shot in the car park of his home.

70. On 31 March 2017, the parole of Mr Sleiman was revoked, and he was reincarcerated.

71. On 2 April 2017, the applicant spoke on the phone to his fiancée, and said that he was short of money. The following exchange occurred:

Applicant: I didn’t know someone was gonna go to gaol did I? Huh.

[Fiancée]: yeah okay well that’s not my problem that doesn’t mean that just because someone’s gone to gaol that has to change everything.

Applicant: Yeah it affects me. I’ve got no more money. I’ve got 36 thousand dollars. He’s got 25 thousand dollars of mine I was meant to go get it. It’s going to take time now to get it. (emphasis added)

89. On 6 June 2017, in a phone conversation with a detective, the applicant said the following about the installation of new locks and new doors:

… the last time I seen him was a couple of days before he passed away, when the coppers kicked his door in, the last time I seen him was when we replaced his door, yeah, you know what I mean, you already spoken to my carpenters who installed the door, yeah they were there because I asked them to go there, the guy called me up and asked me can you please make safe to my door, because my door has been kicked in this morning, like a normal friend, and I do work in the maintenance field, I sent somebody there, ok, who made safe to the door, and the next person the next day installed the door, which you guys have questioned and spoken to…

90. Later in the same conversation, he said:

The house was getting raided and nobody was home so the coppers kicked the door in, so if you guys didn't kick the door in, there would have been no door replacement, is that correct? But if no one kicked his door down, I wouldn't have been notified, ok my carpenter wouldn't have attended, ok and I only attended, said hello, the carpenter done his job and I have taken off. I don't need to write a statement, at the end of the day I am more than happy to speak to you but I am not obliged to write a statement. You know, because you know at the end of the day its like I’m a fucking criminal, you know it's not like I'm a fucking criminal. I've never been charged before, just because I work in the maintenance field and because I know some fucked up people doesn't make me a criminal, you know what I mean. I know I have done nothing wrong…You spoke to the carpenter who installed it they installed itI didn't touch the lock. Because he asked me to. Kemel, when the door got kicked in. I've still got a message from him, sending me the measurements of the door, he sent me the measurements of the door, I forwarded them to the carpenter, which the carpenter has shown you the text messages, that you guys have taken photos of, because he has informed me of what happened....and he wasn't too happy about it, and he goes I don't want to do any more work with you or anything else ok because I don't want to get into any trouble, ok, just to go and make 50 bucks, yeah I’m concerned too, I don't want to go and work for anyone else either… the guy is the one who contacted me, I.. he got in contact with me, and asked me please, my door 1, 2, 3. He sent me the measurements of his door, we organised his door, the door was purchased, the carpenter went there, I gave him the door, he supplied him a lock, they installed the lock and the door thank you very much, never heard from him again, sent me a message saying thank you very much, I'm more than happy to send you a screen shot of what he sent me, I'm more than happy to send you a screen shot of the message…

91. On 29 June 2017, in a conversation with the same detective, the following exchange took place:

BT:   Well what's that got to do about changing the lock?

AJ:   I didn't change the lock. I'm not a fucking locksmith to change the lock. I was on site when the door was getting changed yes.

BT:   Or sorry, the door.

AJ:   …the lock was already replaced.

BT:   The lock was already replaced?

AJ:   Dario installed the lock.

BT:   Well wouldn’t you do the door and the lock at the same time?

AJ:   They went there, they put the lock on. At at the start, the first day. When they went there and they put the timbers on there because you’ve got the photos of the timbers from Stuarts phone when you took a photo.

BT:   Who put the, sorry, who put. Who did that bit?

AJ:   Dario attended at the start, ok. He put a timber on the door from each side until he went and got a door. Ok.

BT:   Yeah but

AJ:   He installed the lock, and he took off. Stuart went there to go and install the door, the door was the wrong door, it was a hollow door, it wasn’t a solid door. It was the wrong measurement of the door. We ended up going, we ended up finding the doors at Moorebank Bunnings. Moorebank, Newbridge Road Bunnings, what-ever it is the Bunnings that's on Newbridge Road. Revesby, Moorebank whatever it is. The door was purchased from there, ok, we attended site. Dario dismantled the door.

BT:   Yeah

AJ:   Ok and put the new door on there and put the locks back on there. The same lock that was given to him the day one when I wasn't there. I wasn't on site when the door was first repaired, on the first day. When the door was smashed in half. That same lock was reused on the new door, it was a brand new lock. Dario installed it on the door.

BT:   Where did Dario get it from?

AJ:   Get what from?

BT:   Well the lock?

AJ:   From his van

BT:   So where would he have got that from then?

AJ:   I'm not too sure mate. I didn't supply the lock. I supplied Dario to go install the door, yes. This is what I don't understand...

BT:   ...What's that.

AJ:   I don't install locks, you can come search my whole entire van. I'm happy to sit on my roof until you get here to search my whole entire van until you find and tell me if you find a lock. You'll find washers, you'll find taps, you might find little bits and pieces yeah. You'll find a plane, I can shave a door. I can't install a lock. I can install a window lock, two little screws that pop in and out. A little latch. I can do bits and pieces.

92. On 25 July 2017, the applicant engaged in a long conversation with two other men in a vehicle. The subject matter included the investigation of the murder of the deceased, the shooting of Mr Sleiman on 29 March, and the fact that Mr Sleiman surmised that the applicant might be responsible for the latter.

93. The applicant was absent from the vehicle for a time. During that period, the following contextual conversation occurred between the other two men (the following are extracted from the judgment concerning the applicant (“AJ”)):

ME:   Ah ha, because why, why is AJ gonna set Emad up when he could have set him up, when they, when they were gonna knock Blackie he could have got Blackie to knock Emad before Emad knocks Blackie. Correct? Simple. And they've walked together by themselves a million times. AJ could have turned around and pulled it on him. Do you know what I mean?

M1:   It's true.

ME:   Fuck that's (Arabic) cheap.

(background conversation)

M1:   I don't know man just fix it up for this cunt, cause (Arabic) it, slack man.

ME:   Oh a hundred percent. Trust me cuz he's not gonna (Arabic) cut him unless he knows, he's not gonna put him on the phone say listen one, two, three.

M1:   Yeah because I know I know how this guy works that's why that's what you know what I know you're close with Emad that's why I'm telling you.

ME:   I'm, I'm close with AJ.

M1:   Because even if I was Emad I'd think that too. But because I know this guy off by heart I already know he's he's just a dumb cunt you know, like it's not him he's got nothing to do with it.

ME:   Like I know a hundred percent he's got nothing to do with it. And ever since it happened within a couple of days Emad went in so I've never had a chance to sit down and speak to him.

M1:   Why, why don't you go visit him?

ME:   I don't want to because I don't want it red hot on myself. They don't know I was with him. Because thing, if they knew I was with him they would have spoken to me about it by now. Correct? Correct?

…

ME:   Yeah his wife goes. And like, and AJ knows I, I'm by him, by his side because AJ, Emad called me, when he called me last week, alright he goes shu you been seeing the other bloke, I knew who. I said yeah he still cuts his hair and that. He goes walla has he said anything I said no. And then I tapped AJ and said, do you want to speak to him, like that, he goes yeah I said you know what he just rocked up give me a sec. Then I put him on the phone.

M1:   Don't tell me he turned on him?

ME:   No he just told him, he goes, he starts what's been happening one, two, three. And shoo do you know any info or something. He goes bro he told him straight, he goes bro I have a feeling that it's you. You know what I mean? But he maybe knows something and maybe wants him to tell him you know what I mean? Maybe.

M1:   It's got nothing to do with this guy bro.

ME:   A hundred percent.

(italicised words translated from Arabic)

94. When the applicant returned, the following conversation occurred between the three men:

ME:   He told him, he goes to him I still have a gut feeling it's you. Then him and AJ spoke.

M1:   But fix it up for him bro fix it up for him bro.

AJ:   Nah I fixed it up with him when I was speaking to him.

M1:   You're not gonna be able to fix nothing you fix it up Musti bro cause cause you're closer with him.

ME:   I'm gonna wait till he comes out but, I already know bro and it's true. And I've spoken to his nephew his nephew speaks to him.

M1:   Is that Shadi?

ME:   Yeah. And his nephew goes nah you're a hundred percent right. Cuz how many times has him and AJ been one on one he could have set him up a million times. Why would he wipe out the Ahmad's main, why would he wipe out the Ahmad's main shooter. Yeah? And then get someone else to shoot ah thing. It doesn't make sense. Do you get what I mean? He would have set it up and at the end of the day he would have made Blackie turn on them if he was on their side. Do you know what I mean?

AJ:   You think about it yeah I could have done it like that (clicking noise [fingers]), yeah. As they went in they would have came that way.

ME:   You know what I mean he could have told him listen they're coming in tonight one, two, three. Get strapped and blast them all.

95. Later, the following conversation occurred:

ME:   But it all started from Pirate. [Pirate, real name Wissam, is one of Mr Sleiman’s nephews] Pirate has hated this cunt from day one. And I keep, I keep telling this cunt, I keep telling this cunt, be careful, I keep telling him, and I keep telling him and I kept telling him. You know what I mean?

- mobile phone message tone -

AJ:   That Pirate has always been jealous for nothing. For nothing, nothing, nothing, nothing. Ever since I was hanging out with Emad, the guy (Arabic) went crazy world war seven happened.

ME:   And I kept telling this cunt...

AJ:   He told Emad watch out, this guy's a dirty cunt. And Emad told me, he goes why is this guy calling you dirty cunt?

ME:   (over talk) And Emad Emad pulled pulled me aside and told me one two three that's my phone. He goes to me, one two three. Do you reckon, AJ's. And I said bro straight the fuck out, I've known AJ, yeah, before I knew Wissam, before I knew thing? I said, the guy will lie to you every now and then, but to turn around and dog you, na bro I don't think. I go, I said to him, put yourself, put yourself, put yourself in AJ's position. You hung out with a crew, yeah? They, they ripped him 150 grand. He was fucken dirty. They keep promising, he'll get his money he'll get his money. He'll get his money he'll get his money. He didn't get his money, so he went to you. What's the, ahh that's my cousin ..[ind].. I said what would you do? He goes na, he goes fucken oath, I,

ME:   I'd turn against them. I said well there you go bro. Isn't he isn't 150k out of debt from the other (Arabic) dogs? Is he or isn't he? I don't know. Whatever it is...

AJ:   Two hundred and sixty five.

M1:   Two hundred and sixty five.

ME:   There you go, and isn't he still paying it until now?

M1:   I can't believe it man.

ME:   Do you know what I mean? So tell me where the dog act is in this. And I've explained that to Pirate, and I've explained that to Shedi [probably Shadi, Mr Sleiman’s other nephew]. Tell me where the dog act is in it.

AJ:   I went and seen Shadi but, remember when I seen him...

ME:   (over talk) Yeah yeah.

AJ:   ...I seen him at the shop as well?

ME:   Where's the dog act in it?

AJ:   I told Wissam but, you what, you think I'm a dirty cunt? Tell me now, if you think I'm a dirty cunt? So you can spit in my face. I go, you know one thing, ok.

ME:   (over talk) You rip me, I rip you. Simple as that.

AJ:   I told him, plain and simple. He goes, yeah. I go me and your uncle, ah what's-it-called where have we been together?

He goes everywhere. I go, even without the phone, come pick me up. I told him, come pick me up. I've gone and picked him up, and we've left. No one knows. No one knows, no phone call, nothing, ok. I've picked him up from alley ways before, yeah. And I knew about the alley way. He goes yeah. I go, couldn't I, couldn't I thing there and then? He goes yeah. I go so now put yourself in my fucken position. I go don't blame me and don't call me no dog. He goes no (Arabic) I swear on the Koran really I understand exactly where you're coming from he goes but you know at the heat of the moment...

ME:   And he's had his (Arabic) steel/gun. And he's had Emad's (Arabic) steel/gun with him. You know what I mean? He could've pulled the trigger on he could've pulled his own trigger on him.

AJ:   The guy gave me six seven of them bro, don't you think I couldn't have, ..[ind].. next to me. What's he gonna do ah, burn the gun?

ME:   You know what I mean? But, maybe Emad is saying it to him to test him. But to see what does he know?

AJ:   He goes I got information from inside saying that you were with them a couple of days before that. I go do you remember when Esam came to give me a thousand dollars? He goes yeah. I go remember I told you that he's coming to give me a thousand dollars? He goes ohh yeah that's true. When they came to see me, I used to message him and tell him listen they're coming to see me. So if anyone sees me, you know what I mean. He knows they're coming to see me.

ME:   And as soon as it happened, you know what, it even looks uglier, ..[ind].. because as soon as Blackie passed away, they stopped, him and Emad stopped contacting him.

AJ:   (over talk) No but I got he's (sic) BlackBerry

ME:   (over talk) But obviously they had to do it for a reason...

AJ:   (over talk) Yeah at the start yeah.

ME:   (over talk) … [ind]..don’t think, anything…

AJ:   (over talk) I told him don’t call me at all. Not even message me…

ME:   When you have someone who’s been inside for 20 years (Arabic) he’s still small minded. Do you know what I mean?

96. On 8 November 2017, the applicant was arrested. He was placed in a room at a police station with his brother. The following passed between them:

AJ:   (Arabic) If they put me inside there's one thing (Arabic) go to Fedi remember Fedi umm Sleiman the panel beater.

Ali:   Ah.

AJ:   And tell him let the screws take care of my brother.

Ali:   Yeah.

AJ:   OK Ali if you need his number call Mustafa, don't call him just go to the smash repairers ..[ind]..

Ali:   .. [ind].. [coughs] alright I know the guy.

AJ:   And tell him let the screws take care of my brother, you wanna protect your brother tell him the easiest way take care of my brother.

(emphasis added; italicised words translated from Arabic)

97. In a recorded interview with police of 8 November 2017, the applicant said the following about the installation of a new lock and new doors at the home of the deceased after 2 March 2017:

Q220.   [09:42] All right. Now, we obviously, after, after the murder, or prior to the murder are you aware that um, on the 2nd of March the police ah, did a search of um. Kernel's unit at Mortlake?

A.   I was aware later on, yes.

Q221.   OK. What, what, when did you become aware?

A.   I can't remember what time it was, it was later on in the afternoon.

Q222.   Yeah.

A.   The door had been broken and he asked me if I could fix it up. I told him I can't fix it but I can send you somebody to fix it.

Q223.   OK. And what happened then?

A.   And we sent somebody there who boarded up the door to ensure the door opens and closes, and then they returned the next day and replaced the door.

Q224.   OK. And who was that?

A.   That was Dario.

Q225.   Do you know Dario's surname?

A.   No, I don't.

Q226.   Uh-huh. So can you explain to me then what happened, who called you?

A.   Esam called me.

Q227.   Yeah.

A.   And then, ah, Barakat called me, and if I had my phone I would've showed you the transcript of the messages, him sending me the address and the size of the door.

Q228.   Yeah.

A.   And I told him that I will send somebody, and I did send somebody who attended and he spoke to them.

Q229.   OK.

A.   I have no more further comments about it. And I do understand that you guys have spoken to the people that replaced the door.

98. Speaking more generally in his interactions with the police, the applicant professed his innocence, raised his good character, and complained about the intrusiveness of police behaviour towards himself.

Expert evidence about keys and locks

99. Leaving now the chronological overview, and recounting some expert evidence, an expert forensic locksmith expressed the following opinions.

100. As noted above, the lock on the sliding balcony door to unit 2 – on the ground floor of the rear building, and through which the intruders gained access to that building on 8 March 2017 – did not work. That meant that one could access unit 2 from its balcony, from there access the foyer of the rear building on the ground floor, and after that the car park by way of the flight of stairs.

101. There was no evidence that the lock to the door leading to the fire stairs on the western or river side of the rear block had been tampered with. One of the keys that Ms Stapley returned to the real estate agent some days after the murder was an original key for this lock. As recounted, a set of keys that Ms Stapley had received had at one time been in the possession of the deceased. Mr Elkodat had provided them to her, and he had previously obtained them legitimately in order to clear out unit 6.

102. A key to such a lock – to repeat, the door on the western side of the rear block – could not be legitimately copied. Having said that, the expert conceded that the system seeking to regulate the copying of security keys was “not perfect”: R v Jaghbir (No 3) at [90].

103. The entry door to the western side fire stairs of the rear block would automatically close, unless the door closer mechanism was physically blocked.

104. Turning now to the interior of the rear block, the lock of the grille door on level 1 that gave access to level 2 had not been tampered with. The key to the western side door also operated the lock on the internal grille door of level 1. Separately, when the expert visited the scene on a number of occasions, he saw that internal grille doors were either partly or fully ajar, thereby rendering their practical security value negligible.

105. Turning now to the crucial lock on the front door to unit 6, it had not been tampered with. That lock was issued with two original keys. One of those keys was on the set given by Ms Stapley to the estate agents. The other key fitting the crucial lock had been found on a table near that door within apartment 6 by a detective after the murder. The latter key showed no signs of having been duplicated. The former key, however – to repeat, the key to the lock on the front door of unit 6 that was part of the set returned by Ms Stapley to the estate agents – possessed microscopic markings that indicated that it had been duplicated at some stage. The expert believed that it had only been duplicated once.

106. The damaged door handles recovered from the burnt out car were indeed handles that had been removed from the steel grille door giving access to the foyer of the rear building from the pool area to its east. The expert expressed the opinion that, if a key had been made from the key mechanism in the external handle, such a key would not have fitted any of the other doors in the building.

107. CCTV showed that, on the night of the murder, the assailants were in the rear building for 3 minutes and 44 seconds. The expert and his assistant conducted experiments at the scene to determine how long various methods of access to level 2 and unit 6 would take. The conclusion was that the assailants were either in possession of keys to both the western entry door and the front door to unit 6, or that both of those doors had been left open.

An undisputed conclusion of the trial judge

108. Some inferences drawn by the trial judge were disputed at trial but not on appeal. While of course it is for this Court to make its own assessment of the evidence, and to draw its own inferences, it is convenient to recount the most important of them here.

109. The trial judge was satisfied that neither the deceased nor Ms Hage had unwittingly opened the door of the apartment to the assailants. That was based on a plethora of evidence about the murder scene, about the character and lifestyle of the deceased, and about the recollections of Ms Hage. On the contrary, the trial judge inferred that the assailants were able to enter because they were able to open the lock on the front door. As I have said, that inference was not impugned on appeal.

110. I turn now to discuss and determine the two grounds. Although they are inter-related in some ways, and the oral submissions adopted that structure to a degree, I believe that it is best to deal with them separately, whilst indicating the areas of overlap between them.

111. Furthermore, because of the way that I believe that this Court is required to approach ground one, I have not recounted the findings of the trial judge. But my summary of some of the written submissions does so, perhaps because their preparation pre-dated the delivery of the judgments in Dansie v The Queen [2022] HCA 25. And in any event, any criticism of the reasons of the trial judge made on behalf of the applicant can readily be transposed to being a submission about how this Court should evaluate all of the evidence for itself in resolving that ground.

Ground one: That the verdict was unreasonable

Written submissions of the applicant

112. The applicant argued that the trial judge was wrong to conclude beyond reasonable doubt that a duplicate key was created at a time when the applicant possessed a key to the unit, that the applicant possessed the key used to create the duplicate, or that the duplicate key had been sourced by the applicant himself.

113. Submissions in support of this ground focused on two main themes: asserted issues regarding the lock and key evidence, and the applicant's asserted admissions.

114. The first finding challenged in support of ground one was the trial judge's conclusion regarding the source of the lock installed on the deceased’s door on 3 March 2017. Though his Honour found "the better view" to be that the final lock installed on 3 March 2017 was the same lock installed on the original damaged door by Mr Ratinon on 2 March, the applicant submitted that this finding was not open on the evidence given at trial. Specifically, Mr Ratinon's conflicting evidence meant that there was no satisfactory basis on which to conclude which lock had truly been used, and was installed on the front door at the time of the murder.

115. As recounted above at [53], in his first statement to police on 31 March 2017, Mr Ratinon stated that the applicant had brought a Lockwood brand lock with him on 3 March 2017, and that Mr Ratinon had installed that lock on the new door. That could not, of course, have been the lock provided by Mr Bidewell on 2 March 2017.

116. However, in his 6 June 2017 statement, Mr Ratinon said that he was unsure as to whether an existing lock was there when he arrived, and said he "used a lock [he] found just inside the door just inside the unit on the floor to install". He also said, in that same statement, that he was "not sure if [he] used the lock in the packet or if I removed the dead latch from the existing door and reinstalled it into the replacement door".

117. It was submitted for the applicant that, given the only evidence as to which lock Mr Ratinon had installed came from him directly, it was not open to his Honour to make any finding one way or another. And this was arguably significant, as there was no evidence given as to the source of the lock potentially brought to the deceased's unit by the applicant.

118. Written submissions for the applicant also argued there was no evidence that duplication of the key took place only after the applicant had access to the lock (whichever one it was). The expert evidence indicated that only one of the two keys supplied to the deceased had been copied, and that key had only been copied once. While the appearance of the lock was consistent with having been newly installed, it was argued that no evidence addressed whether that lock might have been used for a limited period prior to it being installed by Mr Ratinon. The expert evidence showed the main latch had already exhibited "wear patterns", and that the non-duplicate key appeared to have been used for "no more than a few weeks". It was submitted that this was significant, as there were only eight days between the installation of the lock and the deceased's murder. Had the key been in use longer than it had been in the deceased's possession, it would then be possible that the duplication might have taken place before the applicant had any possession of or access to it.

119. Further, if his Honour's finding that the lock from Mr Bidewell had been reinstalled by Mr Ratinon is to be adopted, the applicant submitted that it was not possible to conclude with finality that the deceased did not, at all relevant times, have possession of the duplicate key.

120. It was accepted that the applicant's text message to Mr Norton at 11:25 PM on the evening of 2 March 2017 indicated that he had possession of one key to the deceased's unit, before giving it to Mr Norton at about 7 AM the next day. He then received the same key again at about 4 PM, and had possession of it until he arrived back at the deceased's unit shortly before 5.55 PM. Mr Ratinon's second statement spoke of him having seen the applicant giving the deceased a key on a keyring on 3 March 2017, though he was not certain as to whether or not there were multiple keys on the ring at that time.

121. As I understand it, the applicant submitted that it was therefore open on the evidence to conclude that the deceased retained possession of one key, while the applicant had taken the other. Since the Crown could not establish that the applicant had access to the duplicated key, as opposed to the key that had not been copied, the alleged assistance that was an element of the offence could therefore not be proven beyond reasonable doubt.

112. Written submissions on this point also focused on the asserted “uncertainty” regarding whether the act of duplication might have been performed by the deceased. Though Ms Hage had given some evidence about the deceased being "anal" about security, she had only known him for a brief period. There were accepted security flaws in the deceased's building, showing that in truth he was not that concerned about the issue. The applicant was also – even on the Crown case – directly given a key by the deceased, in order to allow his door to be fixed in the absence of the deceased. It was argued that the deceased's alleged concerns about security were not so great that it would be impossible to conclude that he may have made a duplicate of the key himself.

113. Turning to the alleged admissions, it was argued that there was no support for his Honour's conclusion that the applicant was admitting that he had participated in the murder. The applicant's apparent belief that Mr Sleiman had been one of the assailants could not, without more, lead to an inference that the applicant had the requisite knowledge of what was to happen, and the requisite intention to assist what was to happen, when he allegedly provided the key.

114. The first statement ("You think about it yeah I could have done it like that (clicking noise [fingers]), yeah. As they went in they would have came that way"), it was submitted, does no more than suggest that the applicant, having believed Mr Sleiman was involved, thought at the time of his oral statement in the vehicle that he could have set Mr Sleiman up. The words "I could've done it like that" do not exclusively indicate the applicant's acceptance of his own involvement in the offence.

115. The second statement ("And tell him let the screws take care of my brother, you wanna protect your brother tell him the easiest way take care of my brother"), it was submitted, does not suggest that the applicant was seeking to trade his silence, about something that he believed Mr Sleiman had done, for his safety in custody. Rather, the better view is that the applicant was simply turning to Mr Sleiman for his own protection.

Oral submissions of the applicant

126. During oral submissions, it was emphasised that, if it was indeed the lock from Mr Bidewell that was removed from the original damaged door that was reinstalled and therefore on the front door at the time of the murder, the only opportunity for duplication occurred in those limited hours on 3 March 2017: that is, between approximately 4 PM (when the applicant received the key back from Mr Norton) and 5:55 PM (when the applicant arrived back at the deceased’s apartment).

127. On the other hand, if the applicant brought with him the lock that was installed, there is no evidence at all about the provenance of the supplied key.

128. The opportunity for inculpation of the applicant as the “duplicator” was, in either case, either unidentified or extremely restricted.

129. Expanding on that, it was conceded that as a matter of logistics the key could have been duplicated if the applicant had possession of it between the hours of 11 PM on 2 March 2017, and 7 AM on 3 March 2017. However, it was asserted that the applicant had no contact with Mr Sleiman during that period. That is, he would have been copying the key opportunistically, without any reason to do so. And even on the Crown thesis he was doing so to harm a person who was a friend, and with no advance planning: no one had been in a position to know that the police would damage the original door in the early hours of 2 March 2017.

130. Mr Sleiman, it was emphasised, was central to the Crown case; if there was any opportunity for the key to be duplicated, it was surely only sensibly in that period between the applicant receiving the key again from Mr Norton (4 PM on 3 March 2017) after he had spoken to Mr Sleiman, and when he gave the key back to the deceased just under two hours later (5:55 PM on the same date). For the Crown case to “work”, it was said, the applicant must have had the relevant mental element for the offence at the time when he first obtained the key.

131. Further, on the undisputed expert evidence, it was stressed that the western side ground floor door must also have been rendered insecure. And yet, the trial judge was not satisfied beyond reasonable doubt of any such act on the part of the applicant. That implicit involvement of at least one other person in itself, it was said, called into question proof of assistance by the applicant, based on the provision of a duplicate key to the assailants.

Applicable legal principles regarding ground one

132. The legal principles to be applied in this appeal were not controversial between the parties at the hearing, and I see no need to traverse them in any detail here. The following can simply be seen as the parameters within which I have resolved ground one (for a, with respect, more learned and detailed discussion of the approach to such a ground in a trial by judge alone, see the principles set out by Bell CJ (with the agreement of Ward P and Wilson J) at [111]-[115] in Slattery v R [2023] NSWCCA 117).

133. The fundamental question is whether the verdict of guilty was open to the trial judge as the tribunal of fact: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.

134. In answering that question, this Court is required to bring its own analysis to the question of whether it is satisfied beyond reasonable doubt of the guilt of the applicant of the count of which he was convicted.

135. It is not a matter of analysing the reasons for verdict provided by the trial judge, and seeing whether or not they demonstrate error. Rather, it is a matter of bringing one’s own analysis of the evidence to the question: Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. It is for that reason that, except to the extent necessary to understand and resolve the grounds, I have not recounted the reasoning, the inferences drawn, and the disputed findings of the trial judge.

136. In reviewing verdicts of a jury by way of this ground of appeal, this Court should pay due deference to the time-honoured and constitutional role of a jury as the tribunal of fact with regard to serious criminal matters. The Court should also give weight to the ability of a jury to make assessments based upon demeanour in the context of a trial that is conducted orally, as opposed merely to reading voluminous appeal papers in chambers: see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. Clearly enough, the former of those considerations does not apply to a trial by judge alone, but the latter one has work to do, at least in a case in which the findings of a trial judge are based wholly or partly on assessments of demeanour.

Determination

137. It is convenient first to resolve the factual question about the provenance and identity of the lock that was on the front door of the apartment at the time of the murder. Was it the lock that had been brought to the scene by Mr Bidewell on 2 March 2017, and attached to the original, damaged door? Or was it another lock that had been brought to the scene by the applicant on 3 March 2017?

138. In my assessment, it is comfortably established that it was the former. I say that for the following reasons.

139. First, if the original damaged, patched door was being disposed of, it would make perfect sense to remove and make use of the new and perfectly good lock that Mr Bidewell had provided the day before. In other words, there was a functional, new lock that had been brought to the apartment by Mr Bidewell. There was simply no need to obtain another one.

140. Secondly, it was agreed that CCTV showed that when the original, damaged door was removed, it did not have the lock of Mr Bidewell still attached to it. That powerfully suggests that that lock had been removed, and was sensibly available for reuse on the door that was installed.

141. Thirdly, as I have shown from the extracts above of what the applicant had had to say to police about the question of locks, he never asserted that he himself had brought a lock to the scene. Indeed, the portions that I have highlighted show that the clear sense of what he was saying was that he had no involvement in the provision or installation of locks, either on these occasions or more generally. The words of the applicant himself strongly support the proposition that Mr Ratinon was mistaken in his first recollection, and correct in his second.

142. In short, the fact that the lock on the front door at the crucial time of the fatal shooting was the one originally supplied by Mr Bidewell, and that it had been removed from the damaged door and reinstalled on what I call the third door, is established to my satisfaction as a circumstantial fact.

143. And in any event, in my respectful opinion this line of enquiry is something of an arid one, for the following reasons. The real underlying question is the degree to which the applicant had access to a key that could be duplicated surreptitiously so that the assailants could gain wholly unexpected access to the apartment at the time of the murder. But on either “lock thesis”, the applicant had ample time to duplicate such a key.

144. On the thesis that I find established, he had between 11 PM on 2 March 2017 and 7 AM on 3 March 2017 to have a duplicate made. As confirmed by his text message, at 11:25 PM on 2 March, he undoubtedly possessed a key to the lock that was then and later on the door. Contrary to the submissions of the applicant, I consider that it would not be difficult to find in a city of many millions of people like Sydney a compliant locksmith who would be prepared overnight to duplicate a key.

145. But even assuming that the second thesis is correct, the lock on the front door at the time of the murder was the lock that the applicant himself had brought with him to the apartment complex at 5:55 PM on 3 March 2017. That was a lock that he had had in his possession before bringing it there, for some indeterminate time. Again, there was obvious opportunity for him to make a duplicate key before he even arrived with the lock.

146. In short, I consider that the provenance of the lock is established in accordance with the first thesis. But on any thesis, the applicant had a distinct opportunity to duplicate the key. And in any event, and on any thesis, it was always conceded by the applicant that the almost two-hour period on 3 March 2017 between 4 PM and 5.55 PM provided an opportunity during which a copy of the key could have been made.

147. Having resolved that preliminary factual question, I turn now to analyse the evidence as a whole.

148. In my opinion, there was a strong circumstantial case against the applicant that he had been an accessory before the fact to murder. I shall discuss the strands of that case in generally descending order of importance. I add at this stage that, although all of the following matters are “established” to the indeterminate standard of proof that applies to circumstantial facts, I regard none of them as being indispensable intermediate facts that needs to be established to my satisfaction beyond reasonable doubt. That is because the Crown case can succeed even in the absence of any one of them: see generally the analysis of Simpson J in R v Davidson [2009] NSWCCA 150 at [10], and the subsequent adoption of that analysis in (for example) R v Botrus (No 4) [2020] NSWSC 1449 at [24]-[30].

149. First, what the applicant had to say to the other two men in the vehicle on 25 July 2017 is significant indeed. Looking at the conversation as a whole, including the things said by the other two men without demur or contradiction by the applicant, one can infer comfortably that the applicant was asserting that Mr Sleiman should not believe that the applicant had had any role in the shooting of Mr Sleiman because, if the applicant had wished to, the applicant could have seriously harmed Mr Sleiman on other occasions. One of those occasions was when the deceased was fatally shot, because the applicant could have informed the deceased of what was to occur. In other words, the applicant could have helped the deceased to set up a “counter-ambush”, and thereby caused Mr Sleiman to be gravely injured or killed.

150. Contrary to the submission for the applicant, for that interpretation to make sense, I do not consider that it needs to be established that the applicant knew that Mr Sleiman had been one of the assailants. Still less did it need to be established for the “counter-ambush” statements to have probative value that Mr Sleiman had actually been one of the assailants. What did need to be established was that, at the time that he spoke, the applicant believed that Mr Sleiman had been one of the assailants. It also needed to be established (as the Crown conceded at the appeal hearing at AT 5.6-6.25) that, at the time of the provision of any assistance whereby the assailants could enter the apartment surreptitiously, the applicant had believed that Mr Sleiman would be one of the assailants. But belief in a state of affairs is to be contrasted with knowledge about a state of affairs, and is to be contrasted very sharply indeed with that state of affairs actually having existed.

151. In short, I consider that what the applicant had to say to the other two men on 25 July 2017 when he believed he could speak freely is very important evidence. Not only does it implicate the applicant in intentional assistance in the surreptitious entry, it also implicates the applicant in being well aware that serious harm or death was to be inflicted upon the deceased. That is because the putative “counter-ambush” can be understood to have been a pre-emptive response in kind.

152. Relatedly, there was significant evidence in the trial of contact between the applicant and Mr Sleiman at the relevant times. But that contact is not rendered irrelevant by the fact that the Crown did not prove – indeed, did not set out to prove – that Mr Sleiman was one of the assailants. That contact played its role in establishing a connection between the applicant and Mr Sleiman, which in turn informed the potential for the applicant to have believed that Mr Sleiman was to be, and had been, involved.

153. As can be seen from my summary of the written and oral submissions with regard to both grounds, significant weight was put upon the evidence of contact between the two men at the crucial times. But in my opinion, acceptance of the proposition that Mr Sleiman was not one of the assailants hardly operates to render that evidence of contact exculpatory as regards the applicant. Indeed, complete acceptance of that proposition – that Mr Sleiman was not one of the principals in the first degree – does not mean that, in one’s assessment of the evidence, one must proceed as if conclusively satisfied that Mr Sleiman had no involvement whatsoever in these events. And that approach of mine applies not only in the context of the conversation under discussion, but more generally to the whole of the evidence in the trial.

154. The second piece of evidence in descending order of importance is that of the duplication of the key that would operate the lock at the crucial time. As I have recounted, undisputed scientific evidence established that somebody duplicated a key that would operate the lock. And as I have shown, on any thesis, the applicant had an opportunity to undertake that duplication. As I have further shown, I believe it established that the applicant had that opportunity over a period of ten hours, comprised of the eight hours overnight, and the two hours late on the following afternoon.

155. Taking into account (amongst other things) the evidence of the conversation in the vehicle, evidence of motive to which I shall turn in a moment, and evidence of money owing by Mr Sleiman to the applicant at the time when Mr Sleiman was reincarcerated, I find it established that it was the applicant who duplicated that key. As part of that finding, I do not accept that any alternative thesis has weight. It cannot be suggested that either the girlfriend of the deceased, nor Mr Norton, nor Mr Ratinon, had any reason to do so.

156. Separately, in light of the profound urgency with which the deceased sought to have his front door secured – and remembering that he himself had been shot at 34 days beforehand – I firmly reject the proposition that the deceased after 2 March 2017 either had a key duplicated and provided that duplicate to somebody else, or provided one of the original keys to a person other than the applicant, thereby giving them the opportunity to create a duplicate.

157. Finally, I assess as mere speculation that for some reason or other, some person or other, had duplicated the key to the lock described as “new” by Mr Bidewell and delivered in a box before it was first installed.

158. It is but a short step from finding it established that it was the applicant who duplicated the key to finding it established that it was the applicant who provided it to the assailants. And that is because of the inference—drawn by the trial judge and not impugned, and in my own opinion irresistible—that the assailants were able to open the door to the apartment without disturbing the sleeping occupants.

159. It is true that such a thesis means that the applicant betrayed a person who was a friend who trusted him, and decided to do so quite quickly after the opportunity unexpectedly arose. But the words of the applicant himself in the vehicle; the violence by way of shootings that had been inflicted on various of his associates; and his own reference to spending time with “fucked up people” when speaking with the detective on 6 June 2017, demonstrate to my mind that he was moving in circles in which betrayals with grave consequences were not extraordinary events. Indeed, it is clear that the applicant was moving in a world far more sinister and dangerous than that of a maintenance man living quietly at home with his parents in a suburb of Sydney and who was engaged to be married.

160. For completeness, the conceivable involvement of another person in rendering the western ground floor door insecure does not deflect me from that satisfaction.

161. Thirdly, the conversation between the applicant and his brother once the applicant had been arrested by police supports the proposition that the applicant believed that he possessed something that could harm Mr Sleiman. That was the irresistible import of the message that he asked his brother to convey to the brother of Mr Sleiman: Mr Sleiman could be protected by the applicant in return being treated well by (presumably corrupt or intimidated) prison officers. Again, that supports the proposition that the applicant believed (whether or not that be the fact) that Mr Sleiman had been one of the assailants who committed the murder. And that again supports the proposition that the applicant played a role in the murder, albeit mistaken as to who was one of the principals in the first degree.

162. Fourthly, of course motive did not need to be established as an element of the offence, nor as a circumstantial fact. Having said that, the question of motive is often important in the decision of a tribunal of fact as to whether a criminal offence has been established beyond reasonable doubt.

163. Here, I am not affirmatively satisfied that it has been established that the applicant played a role in the murder of the deceased for any particular reason or reasons. I am satisfied, however, that it has been established that there are a number of reasons why he may have done so, as follows.

164. First, one can readily infer that, when Mr Sleiman was reincarcerated, the applicant believed that the former owed the latter the significant sum of $25,000. The concern of the applicant was that, now that Mr Sleiman had returned to prison, it would be more difficult for the applicant to get paid. It is to be recalled that the deceased was murdered on 10 March 2017, Mr Sleiman was reincarcerated on 31 March 2017, and the conversation between the applicant and his fiancée occurred on 2 April 2017.

137. In short, I think it significant that, 23 days after the murder, the applicant expressed his frustration about the inability to call in a debt for a significant sum of money that the applicant considered he was owed by Mr Sleiman.

138. Secondly, although it is quite true that the deceased and the applicant were friends, it was an agreed fact that, generally, the deceased was a suspect in the murder of Mr Hamad Assad, another friend of the applicant. Again, that may have played a role in motivating the applicant to be part of seriously harming or killing the deceased.

139. Thirdly, it is clear from what the applicant had to say in the motor vehicle that he believed that he was out of pocket in the significant sum of $265,000 due to an interaction with “a crew”, that he had been “ripped”, and that he was “dirty” about it. It is also clear that the indebted crew was not that of Mr Sleiman with which the applicant had associated himself, but one involving other persons. Again, that may provide some motive for the applicant to have involved himself in the infliction of serious harm or death on a person such as the deceased.

140. To repeat, I regard none of these motives as “established”, in the sense of demonstrating affirmatively why the applicant involved himself in this crime, about which involvement I am satisfied to the criminal standard. But they are matters that are “established” as circumstantial facts that bolster the proposition that the applicant may have had reason to do so.

141. Fourthly and finally, I have watched in Chambers more than once the CCTV product (exhibit F) that shows the behaviour of the applicant at 5:52 PM on 8 March 2017 when he was in the pool area to the east of the rear block. That was, it will be recalled, after the handles to the grille door on the eastern side of the rear block had been removed by the invaders in the early hours of 8 March 2017, who were unquestionably connected with the assailants on 10 March 2017. In my opinion, it shows the following:

Counter 00:01 – the applicant arrives at and opens the gate from the southern pathway to the common area between the two apartment blocks.

Counter 00:05 – the applicant walks onto a paved area, and looks slightly to his left at a fallen tree.

Counter 00:07 – the applicant crosses the fallen tree, and looks to his right (in accordance with the layout that I have explained, in the general direction of the steel grille door from which the handles had been removed).

Counter 00:08 – in a noteworthy and somewhat unusual manner, the applicant continues to look to his right as he walks ahead.

Counter 00:09 – the applicant stops looking to his right as he comes to the glass door (as explained, on the eastern side of the rear building).

Counter 00:18 – the applicant is standing at the glass door, seemingly waiting to be let in.

Counter 00:22 – the applicant succeeds in opening the glass door and entering the building.

Counter 00:26 – the applicant leaves the screen, and the glass door is shut.

170. As explained above, the unusual behaviour of the applicant continued for something like two seconds. Having said that, I am satisfied that he was looking at something that attracted his attention and interest to his right, in the general direction of the steel grille door.

171. This piece of evidence, on its own, possesses very little probative value. Even taken in combination with all of the other evidence in the trial, it plays nothing more than a very small role in bolstering the case against the applicant. Having said that, I do not put it to one side as entirely worthless or equivocal.

172. In short, this was a circumstantial case with a number of important strands, all of which I find to be established. They consisted of things said unguardedly by the applicant himself that powerfully supported the proposition that he believed he could have organised a “counter-ambush”; the duplication of a key that would have permitted surreptitious access to the assailants; the opportunity on the part of the applicant to undertake that duplication; the ruling out of any sensible alternative duplicator; matters that may have given rise to motive on the part of the applicant to betray his friend; and behaviour on his part captured on CCTV that supports very slightly the proposition of involvement.

173. Considering all of those established matters not individually but together, and reflecting on the way that each supports the probative value of the other, I am satisfied to the criminal standard on the evidence placed before this Court of the following. The applicant was indeed an accessory before the fact to murder, in that he intentionally assisted one or more of the principals in the first degree by providing them with a key that, unbeknown to the deceased, provided them with surreptitious access to the premises in which the latter was sleeping. Furthermore, at the time when he did so, the applicant not only intended to assist the assailants but also knew that, at the least, really serious physical injury was to be inflicted intentionally upon the deceased.

174. Finally, to be clear: on the entirety of the evidence viewed as an interconnected whole, I am not just satisfied that it has been established that the applicant provided the duplicate key to the assailants; I am also satisfied beyond reasonable doubt of that essential physical element of the offence.

175. It inevitably follows from that state of mind on my part that I believe that it was well open to the trial judge to return a verdict of guilty.

176. For those reasons, I would dismiss ground one.

Ground two: That his Honour erred in concluding that the Crown was not obliged to establish beyond reasonable doubt that Mr Sleiman had been involved in the principal offence.

Written submissions of the applicant

177. The background to this ground is that, at para [172] of the reasons for verdict, the trial judge had said:

I can see no basis upon which a finding that Mr Sleiman arranged or participated in the killing needs to be proved beyond reasonable doubt. It cannot be seen as a link in the chain, because a finding, for example, that the accused provided a key to the perpetrators is not the same as a finding that the accused provided a key to Mr Sleiman or for his purposes. What is of greater significance, although itself not an intermediate fact, is that the accused believed that Mr Sleiman was involved in the killing and believed, it would seem, that he was one of the persons who actually entered the unit on the night of 9/10 March 2017.

178. Written submissions for the applicant asserted that, to the contrary, Mr Sleiman's involvement in the murder was an "indispensable intermediate fact". That is, it was a matter which had to be proven by the Crown beyond reasonable doubt before a verdict of guilty could be returned against the applicant.

179. The applicant argued that Mr Sleiman was evidently vital to the Crown case, as "literally half" of the some thirty circumstances relied upon by the Crown to prove the applicant's guilt related to him. Most related to the "temporal proximity between some act of the applicant and possible contact between the applicant and Mr Sleiman". It was submitted that these circumstances could only have been of probative value if the Crown could establish Mr Sleiman's involvement in the murder; yet the Crown could not.

180. Furthermore, if it could not be established that the applicant had any connection with any person connected to the murder, there could be no evidence that the applicant had any knowledge of the facts relating to the murder.

Oral submissions of the applicant

181. Orally it was said that, on the Crown case, the applicant did not form an intention to assist until some point after having obtained the key. His taking possession and subsequent duplication of the key, rather, must have occurred almost simultaneously. It was submitted that such an opportunistic interpretation of the applicant's conduct makes little sense unless it had been founded upon his relationship with Mr Sleiman.

182. The applicant argued that, on the Crown case, it was thus essential that the applicant actually knew that Mr Sleiman was to be one of the assailants, not just believed that he might be, before the offence had been committed.

183. Mere belief, it was said, is not sufficient to establish “Giorgianni liability”:

"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender" (see Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 at 487-8).

184. Orally, the applicant asserted that Mr Sleiman had to be involved in order for the Crown case to “work” against the applicant "evidentially and liability wise", because the entire circumstantial case was built around their interactions with each other.

Applicable legal principles

185. In resolving this ground, it is convenient first to provide a sketch of how the idea of an “indispensable intermediate fact” came to be part of the criminal law of Australia (noting that s 62 of the Jury Directions Act 2015 (Vic) has now abolished the rule in Victoria), what this Court has said judges should say to juries about the topic, and the degree to which those principles can be applied to judge alone trials.

186. In Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, the High Court found it necessary to explain an apparent misunderstanding that had arisen out of a comment made by Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7:

“The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts — individual items of evidence — proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury... Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case.” (Shepherd v The Queen at 585)

187. Dawson J (with Mason CJ, Toohey and Gaudron JJ agreeing; McHugh J agreeing generally on that point, but providing separate analysis) clarified that Chamberlain v The Queen was not asserting that juries had to be directed that all facts needed to be proven beyond reasonable doubt before they could be used as a basis for inferring guilt in circumstantial cases.

188. Having said that, where a trial judge determines it “necessary or desirable” for the jury to reach a conclusion of fact as an indispensable, intermediate step in the process of reasoning towards guilt – in other words, an essential “link in a chain of reasoning” – a direction to that effect “may well be appropriate” (see the judgment of Dawson J in Shepherd v The Queen at 579).

189. Subsequent case law in this Court has further explained that the trial judge should, when considering whether to give such a direction, have regard to whether the jury might reasonably treat certain facts as indispensable intermediate facts, even if the trial judge personally did not regard them as such (see R v Merritt (1999) NSWCCA 29 at [70]; and, for example, Burrell v The Queen [2009] NSWCCA 163 at [90]-[91]; Humphries v R [2015] NSWCCA 319 at [83]; R v Davidson [2009] NSWCCA 150 at [6]-[10]).

190. This formulation seems to me to be something of a development of what the High Court said in Shepherd v The Queen, for the following reasons. The formulation of the High Court arguably focused on the trial judge identifying intermediate facts about which it would be necessary for the jury to be satisfied the criminal standard in order ultimately to return a verdict of guilty. The formulation of this Court expanded on this, explaining that the process of identifying potential intermediate facts should be founded upon what facts the jury might reasonably regard as indispensable intermediate facts.

191. Leaving that seeming refinement side, whether or not a fact relied on by the Crown might be considered indispensable can be readily assessed by asking whether, without the particular fact, “there would nonetheless be a case to go to the jury” (see R v Davidson at [74]). Only when the answer is no can the asserted fact be thought of as indispensable. On the basis of that test, my own thought is that indispensable intermediate facts that are not in truth mere restatements of the elements of the offence must be quite rare.

Determination

192. It follows that I believe that the current state of the law is that it is not a matter of a judge, based upon the analysis of the evidence by the judge, directing a jury that the jury would need to be satisfied beyond reasonable doubt of an indispensable intermediate fact (explicitly identified as such by the judge) before returning a verdict of guilty. Rather, the law in New South Wales is that, if a judge thinks it appropriate, the judge is to identify any such fact for the jury, and then leave it to the assessment of the jury as to whether such a fact is, in truth, an indispensable intermediate fact.

193. In a (perhaps theoretical) sense, that has the potential to dispose of this ground of appeal in this judge alone trial. That is because, in the reasons for verdict, the trial judge expressly stated that his Honour did not regard the proposition that Mr Sleiman took part in the murder as having been an indispensable intermediate fact: at [172]. And in my opinion that was his Honour speaking as the tribunal of fact, not as the judge of the law.

194. In other words, even if his Honour as judge of the law had formalistically “asked himself” to reflect upon whether that proposition was an indispensable intermediate fact (a submission that was certainly put forward by defence counsel at trial), the trial judge as tribunal of fact would not have applied that characterisation to the proposition.

195. But quite apart from that perhaps overly refined analysis, as I have shown, in my opinion there was no sense in which it was incumbent upon the Crown to prove beyond reasonable doubt that Mr Sleiman was, in fact, one of the principals in the first degree. As I have shown, the indictment did not aver it (and it was not the subject of demurrer or other criticism). Nor does the criminal law insist that, before an accessory before the fact can be found guilty, the principal in the first degree must be convicted, or even specifically identified: see s 346 of the Crimes Act 1900 (NSW); King v The Queen (1986) 161 CLR 423; [1986] HCA 59 Dawson J at 434 (Gibbs CJ, Wilson and Brennan JJ agreeing; Murphy, Mason and Deane JJ dissenting on other grounds).

196. It is certainly uncontroversial, as was said on behalf of the applicant, that an accessory before the fact must know all of the physical and mental elements of the offence that is to be committed at the time of the intentional act of assistance done by the accessory. But that does not mean that the criminal law requires proof of knowledge by the accessory of the personal identity of an individual who is to be a perpetrator.

197. And there are sound policy reasons for the law being that way: were it otherwise, a person could intentionally assist or encourage a very grave offence before its commission, well knowing that it was to occur, but so long as the accessory before the fact did not know the precise identity of the particular person who was to be the perpetrator, then the accessory would be exculpated.

198. Furthermore, as I have explained, for the “counter-ambush” statements of the applicant to have probative force, it needed to be established that, at more than one time, the applicant believed that Mr Sleiman was to be and had been so involved. But that is a long way from knowledge of that fact, including in the sense of the proposition actually being true, and a very long way indeed from the fact itself needing to be established beyond reasonable doubt.

199. In summary: in my opinion, there was nothing about the indictment, the trial, the evidence, the conduct of the Crown, or the criminal law that meant that it was incumbent upon the Crown to established beyond reasonable doubt that Mr Sleiman was one of the assailants. For that reason, I would not uphold ground two.

Conclusion

200. I propose the following orders:

1. Leave to appeal against conviction granted.

2. Appeal dismissed.

201. MCNAUGHTON J: I have had the advantage of reading in draft the judgment of Button J.

202. As to Ground 1, having considered the evidence myself, I am of the view that the trial judge’s decision to convict the applicant on the charge was not unreasonable. My reasons for reaching that conclusion accord with those set out by Button J.

203. As to Ground 2, I agree with Button J, subject to expressing no view as to paragraphs [189] – [194], noting that issue was not the subject of argument in the appeal.

204. I agree with the orders his Honour proposes.

205. R A HULME AJ: I agree with the reasons and the orders proposed by Button J and. I also express no view about what appears in [189] – [194] for the reason indicated by McNaughton J.

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Decision last updated: 12 July 2023