Khoury v The Queen - [2021] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Khoury v R [2021] NSWCCA 3
Hearing dates: 27 May 2020
Decision date: 03 February 2021
Before: Bathurst CJ at [1]; Hoeben CJ at CL at [629]; Beech-Jones J at [630]
Decision:
(1)   Extend the time for the applicant to file a notice of appeal up to 12 November 2019.
(2)   Grant the applicant leave to appeal.
(3)   Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – murder during home invasion – extended joint criminal enterprise – whether there was insufficient evidence to establish participation in agreement to do home invasion with the foresight of the deliberate infliction of grievous bodily harm

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
Pell v The Queen [2020] HCA 12; 94 ALJR 394
R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Texts Cited:
Nil

Category: Principal judgment
Parties: John Khoury (Applicant)
The Crown (Respondent)
Representation:
Counsel:
T Game SC with D Barrow (Applicant)
G A Newton (Respondent)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/323677
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2013] NSWSC 1761

Date of Decision:

20 June 2013, 29 November 2013

Before:

Johnson J

File Number(s):

2010/323677

HEADNOTE

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

John Khoury (the applicant) was convicted of a number of offences relating to home invasions carried out in 2010, on the basis of the principles of joint criminal enterprise or extended joint criminal enterprise. While he did not personally carry out the offences, the Crown case was that he was involved with recruiting and arming the other offenders and selecting or approving the target premises. The applicant sought leave to appeal against his conviction on two of the counts, which related to the murder of Kesley Burgess (the deceased) during a home invasion.

The applicant was a drug dealer in south western Sydney, who was assisted by Mohammed Karimi. A gang operated from a shop leased by the applicant (the shop). The applicant had recruited Anaterea Tamapua and some of his associates to shut down the activities of competing drug dealers. Two home invasions were carried out on 1 July 2010. The first “job”, planned by Tamapua, was intended to be at the home in Warwick Farm of a man known as “Beanie Boy” but was inadvertently carried out at the wrong house. The second “job” was carried out at the home of the deceased in Lurnea. The deceased’s brother Jacob was known by Karimi to be a drug dealer, and Karimi’s cousin knew the location of the house.

Prior to the jobs being carried out, members of the gang gathered at the shop, and then at the Chester Hill Hotel. They later returned to the shop, where the applicant and others were. It was the Crown case that the two home invasions were discussed and approved by the applicant at the shop. A group left from the shop to Warwick Farm, where the first home invasion was carried out. The group then drove to Merrylands, where they met up with Karimi’s cousin who guided them to the location of the second home invasion in Lurnea. The deceased was hacked to death with meat cleavers in front of his mother and girlfriend. The Crown argued that the relevant agreement by the applicant for the purpose of extended joint criminal enterprise was an agreement to do the second job at Lurnea with the foresight of the deliberate infliction of grievous bodily harm.

The applicant appealed his conviction for the murder of the deceased on the ground that the verdict was unreasonable, and that there was insufficient evidence to establish his participation in the agreement.

The Court of Criminal Appeal held that the verdict was not unreasonable and dismissed the appeal.

Unreasonable verdict

The jury must have been positively satisfied beyond reasonable doubt that the applicant participated in an agreement in the shop to conduct the home invasion of the Burgess premises with the foresight of the deliberate infliction of grievous bodily harm: [600] (Bathurst CJ); [629] (Hoeben CJ at CL); [630] (Beech-Jones J).

Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26, referred to.

Many of the key witnesses had major issues of credibility and reliability. Taken in isolation, their evidence was not capable of satisfying the jury beyond reasonable doubt that the applicant participated in the agreement: [601]-[613] (Bathurst CJ); [629] (Hoeben CJ at CL).
However, taking into account other matters, including Tamapua’s lack of connection with Jacob Burgess, evidence of phone calls and their timing, the role of the applicant in the other offences he was found guilty of, the applicant’s relationship with Karimi, and other evidence of his involvement, there is powerful support for the conclusion that the applicant participated in the agreement. It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charges: [614]-[627] (Bathurst CJ); [629] (Hoeben CJ at CL); [651]-[656] (Beech-Jones J).

Judgment

BATHURST CJ: The applicant John Khoury (the applicant), Mohammed Jawad Karimi (Karimi) and Mahdi Mir (Mir) stood trial for a number of offences which took place between 29 June 2010 and 4 July 2010. The discrete offences charged so far as relevant were as follows:

“Count 1: On 29 June 2020 [Khoury and Karimi] at Villawood in the State of New South Wales did conspire amongst themselves and others to rob Ernesto Bertolli whilst armed with a dangerous weapon, namely a shortened firearm.
Count 2: On 29 June 2010 [Khoury and Karimi] at Ashcroft in the State of New South Wales did break and enter a dwelling house owned by the Department of Housing … and did commit a serious indictable offence therein, namely larceny of a laptop computer and a plastic container in circumstances of special aggravation, namely at the time of the offence did wound James Stiff.
Count 4: On 1 July 2010 [Khoury] at Chester Hill in the State of New South Wales recruited Tomasi Natuba to carry out a criminal activity, namely robbery whilst armed with [an] offensive weapon.
Count 5: On 1 July 2010 [Khoury, Karimi and Mir] at Warwick Farm in the State of New South Wales, being armed with an offensive weapon, namely a meat cleaver, did rob Maxine Rogers of a mobile phone and a laptop computer, the property of Maxine Rogers.
Count 6: On or about 1 July 2010 [Khoury, Karimi and Mir] at Lurnea in the State of New South Wales did murder Kesley Burgess.
Count 7: [Alternatively,] [o]n or about 3 July 2010 [Khoury] at Sydney in the State of New South Wales knowing the persons to have committed the offence of the murder of Kesley Burgess did receive, harbour, maintain and assist those persons known to him.
Count 8: On 1 July 2010 [Khoury, Karimi and Mir] at Lurnea in the State of New South Wales, being armed with an offensive weapon, namely a meat cleaver, did rob Tracey Burgess of a handbag, the property of Tracey Burgess.
Count 9: On or about 3 July 2010 [Khoury and Karimi] at Sydney in the State of New South Wales did conspire amongst themselves and other persons to murder an unknown person.
Count 12: Between 29 June 2010 and 4 July 2010 at Villawood in the State of New South Wales did possess a prohibited firearm namely a shortened .22 calibre long rifle without being authorised to do so by a license or permit.”

The jury found each accused guilty of all the counts set out above except for count 7. That count was in the alternative to count 6 and a verdict was not taken.
The applicant has sought leave to appeal out of time in respect of his conviction in respect of counts 6 and 8 on the sole ground that the verdict was unreasonable

The Crown case in broad outline

In his judgment under the heading “Crown Case”, Beech-Jones J has provided an overall summary of the criminal activities of the applicant which took place between 29 June 2010 and 4 July 2010. I gratefully adopt that summary, which should be read in conjunction with what I have written below.
The applicant in his written submissions helpfully supplied a dramatis personae and an outline of locations which were relevant to the incidents the subject of each charge. I have annexed this as Annexure A to this judgment. In addition, the Crown in its written submissions set out a timeline of the events which occurred on the evening of 1 July when the incidents the subject of count 6 occurred. I have set out the timeline as Annexure B. As will be seen from the dramatis personae, a number of the persons involved had various aliases or nicknames. These aliases or nicknames were used throughout the evidence. In summarising the evidence, I have used the witnesses’ adoption of the nicknames but to the extent necessary have indicated in parenthesis the actual name of the person referred to.
The Crown case was that the applicant was a local Liverpool drug dealer who aspired to shut down rival drug dealers through intimidation and violence. He enlisted Anaterea Tamapua (Tamapua) and others to assist him in that task. He also had a prior association with Karimi with whom he was engaged in drug dealing.
The applicant and his girlfriend Aimee Walsh (Walsh) resided in a bedsit at Villawood (which was referred to as “the compound”). A Ray Tuki (Tuki) lived in an adjoining flat and was friendly with the applicant. He participated in some of the offences.
The applicant had leased a shop in Chester Hill (the shop) which was intended to be used to sell a variety of goods, including meat cleavers. A criminal group established by the applicant, the United Brothers or United Brotherhood, operated from the shop.
It was not suggested that the applicant physically participated in the home invasions. The Crown case was that he was guilty of each offence by reason of the application of the principles of joint criminal enterprise or extended joint criminal enterprise. The Crown case was that the applicant had directly or indirectly recruited the gang members, provided prospective members with meat cleavers and other weapons and selected or approved the target premises. The Crown case was that actual participants in the home invasions were selected to demonstrate they were capable of carrying out similar offences in the future.
The issue raised by the ground of appeal can be stated shortly. The applicant asserts that the jury could not be satisfied beyond reasonable doubt that he was a party to any agreement to conduct a home invasion at the residence of Kesley Burgess and Tracey Burgess such that he could be guilty of the offences the subject of counts 6 and 8 by the application of the principles of joint criminal enterprise or extended joint criminal enterprise.

The course of the trial

The trial involved a considerable number of offences other than those the subject of counts 6 and 8. Nonetheless, evidence of the manner in which these offences were planned and to some extent executed is relevant in determining the question in issue in the present case. In this section I will deal with the oral evidence given at the trial. To the extent necessary, reference will be made to exhibits when considering the parties’ submissions.

a Ernesto Bertolli

Mr Bertolli was the intended victim of the conspiracy the subject of count 1. It is unnecessary to deal with his evidence in any detail. However, he indicated that he met a person named John (who it was agreed was the applicant) in about 2005. He said that at the time he had about five firearms: a Smith & Wesson.357 revolver, a Desert Eagle, a Beretta 9 millimetre, a Keppeler rifle and a shotgun. He said he showed them to the applicant one evening.

b James Kaerin Stiff

Mr Stiff was the victim of the offence the subject of count 2 of the indictment. He gave evidence of the home invasion, that he was assaulted with a machete and that a person at the invasion had a shotgun.

c Maxine Rogers

Ms Rogers was the victim of the offence the subject of count 5. She stated that she lived at Warwick Farm with her two daughters, aged 11 and 12, and her son. She said that on 1 July 2010 she heard a knock on the door, and that after opening it “these male guys” pushed the door open and asked if there were drugs in the house. She said that one of the males had a knife like a machete knife. She said that person had a knife to her throat and was asking her if there were drugs. She estimated that there were about six men, stating that they went through the house and then again asked about drugs. She said they stole her son’s laptop and her mobile phone.

d Manuel Puga

Mr Puga sold the business carried on at the shop to the applicant. He stated that he recalled receiving a message from the applicant asking whether he wanted to get customers for the drug ice, but said he refused and that was it.

e Senior Constable Carl Spiteri

Senior Constable Spiteri, a crime scene officer, attended the shop on 5 July. He took sketches and photographs. He said that at the bottom eastern exterior corner of the eastern roller shutter of the shop, he saw a number of apparent blood stains. He also located a red/brown apparent blood stain on the floor towards the western wall, just south of the counter, and a similar stain between the western wall and the counter. He also noticed a reddish stain halfway up the handle of a purple handled mop.
Senior Constable Spiteri also located two right-handed woven gloves. He stated that he conducted a presumptive test for the presence of blood upon a stain on one of the gloves, which returned a positive result. He said the second glove which he identified had apparent blood staining to the palm area, and he again conducted a presumptive test on that stain which also returned a positive result. He gave evidence of the items he collected and the various swabs which he took. It is unnecessary, having regard to the issues in the case, to deal with this in any detail.

f Detective Senior Constable Kiera Piggott

Detective Senior Constable Piggott gave evidence about a statement she took at Bankstown Hospital on 2 July 2010 from Mr Tomasi Natuba (Natuba). It was common ground that Natuba gave a false statement that he had been attacked at a railway station.

g Senior Constable Joyce

Senior Constable Joyce gave evidence of the execution of a search warrant at a warehouse at Ingleburn occupied by the applicant. A blue bag containing three meat cleavers was seized.

h Mitchell Kearns

Mr Kearns stated that he knew Jacob Burgess from school. He said that he met Jacob’s older brother Kesley Burgess through Jacob. He said he lived in the next street over from the Burgess family.
Mr Kearns said that in 2008 he became aware that Jacob Burgess was selling marijuana. He said that from around 2009 he purchased some from him.
He said he also came to know Wahid Karimi at school and became good friends with him. Wahid Karimi was Karimi’s cousin. He said he had a mobile phone number for Wahid Karimi and that he gave it to the police at the time he made his statement.
Mr Kearns said that on one occasion whilst he was with Wahid Karimi, he indicated the Burgess house and told him, “This is where I get my pot from”. He said that occurred before he became aware of the death of Kesley Burgess.
Mr Kearns said that he knew that Wahid Karimi had an older sister who had a white Toyota Echo motor vehicle. He thought that Wahid Karimi’s sister’s name was Sadequa. He said he had been in that car with Wahid Karimi when he was driving. He said that also occurred before the death of Kesley Burgess, saying it could have been at least a month before.
Mr Kearns said he had never met any cousins of Wahid Karimi.

Detective Senior Constable Sharon Smithers

Detective Senior Constable Smithers stated that she was involved in a number of aspects of the investigation the subject of the charges. She stated that she interviewed a person named Mr Andrew Rhodes-Lightfoot. She said that Rhodes-Lightfoot lived in Warwick Farm, next door to Ms Rogers, the victim of the home invasion the subject of count 5. She agreed that his nickname was “Beanie Boy”. She said he declined to make a statement.
There was tendered through Detective Senior Constable Smithers selected images of CCTV footage of the Chester Hill Hotel taken on 1 July 2010, and CCTV footage of vehicle movement from just outside that pub. (Exhibits AM, AN, AO). Exhibit AM was footage taken within the pub, excluding the pool room area. Detective Senior Constable Smithers identified Karimi and Tamapua in that footage. She also identified Eliza Brown, Thomas (“Sonny”) Byquar, Mir and Shane Kraak (Kraak). It was not in dispute that Eliza Brown was Mir’s girlfriend, that Kraak lived with Tamapua in Claymore and that Thomas Byquar participated in the killing of Kesley Burgess.
Detective Senior Constable Smithers also identified Tomasi Natuba (aka “Doonside”), Ray Tuki and Richard Vergara (aka “Ricky” and “Choppy Chan”). Natuba participated in the killing of Kesley Burgess. He was struck by Burgess with a sword and went to hospital. Tuki was a neighbour of the applicant, and Vergara participated in the home invasion of Mr Stiff’s home the subject of count 2, during which he struck Mr Stiff with a meat cleaver.
Detective Senior Constable Smithers was then referred to images of the pool room which were Exhibit AN. She identified Natuba, Tamapua, Vergara, Byquar, Kraak, Karimi, Mir and Tuki in those images.
Detective Senior Constable Smithers gave evidence that during the course of the investigation police seized a maroon Toyota Tarago said to be associated with Ramos. Ramos (aka “Dosh”) drove the gang to various home invasions in his father’s Tarago.
She also stated that the police seized a Toyota Echo registered in the name of Sadequa Karimi. She was shown CCTV footage of vehicle movements outside the Chester Hill Hotel (Exhibit AO) which recorded the Tarago driving past the Chester Hill Hotel towards the applicant’s shop at 10.17 pm, and a Tarago and an Echo at 12.04 am on 2 July 2010 travelling past the Chester Hill Hotel also in the direction of the applicant’s shop.
Detective Senior Constable Smithers also gave evidence that she had obtained a phone associated with Rhodes-Lightfoot on which Rhodes-Lightfoot had recorded some audio. She stated that there were two audio clips. She recognised one of the voices on the first clip as that of Rhodes-Lightfoot but was not able to recognise the voice of the other person. In the next call she recognised the voices of Rhodes-Lightfoot and Tamapua. She said that the date for that recording was 1 July 2010 at 13:32:50 hours in Greenwich Mean Time which was about 11.32 pm in Australian Eastern Standard Time.
In cross-examination, Detective Senior Constable Smithers stated that Rhodes-Lightfoot had complained to the police in February 2010, concerning an investigation into an allegation that his apartment had been invaded by Tamapua and other persons. She agreed that he also mentioned to her that Tamapua had attempted to invade his house on the evening of the Burgess killing. She agreed that the thrust of the allegation that Rhodes-Lightfoot made to Tamapua in the phone call of 11.32 pm on 1 July was that Tamapua had attempted to invade his house on that day.
Senior Constable Smithers also gave evidence that one of the three meat cleavers seized from the warehouse at Ingleburn contained DNA consistent with that of Kesley Burgess.

j John Joshua Bautista

Bautista gave evidence that he was charged with conspiracy to rob Ernesto Bertolli whilst armed with a dangerous weapon, and with break and enter and stealing a laptop and plastic container in circumstances of special aggravation, being the infliction of grievous bodily harm on Mr Stiff. He pleaded guilty to the latter offence, and the Bertolli offence was placed on a Form 1.

These offences were the same offences as those on count 1 and count 2 against the applicant and his co-accused.
Bautista’s sentence was discounted by ten per cent for past assistance and 15 per cent for future assistance, together with a further 25 percent for a guilty plea.
Bautista said that he was introduced to Tamapua by his friend “Edgy”. He said this occurred on 29 June 2010, the same day as the commission of the offences the subject of counts 1 and 2. He said that he met Tamapua at Parramatta Station and that Tamapua said to him, “Oh, if you’re up to making money, you know, come with us and we’ll do houses over”. Later that night he went to Villawood and was introduced to the applicant, who told them, “Oh, you know, if you want up to get these guns for us, we’ll pay you that amount for the guns”. He said that subsequently they went to a house at Lakemba and that “then they told us, ‘Just go in there, get the guns and then we’ll give you a price for it’”. He said they went to the house but did not end up doing it. He said they went back to the car and that “[Tamapua] and Karimi was pissed off because we didn’t do the job”. He said they returned to Villawood and that they said “Oh, youse have to make it up for us by going to the Ashcroft job to Mr Stiff’s house. If youse do this, it’s like an initiation kind of thing”.
Bautista said that after he first met Tamapua he travelled to Villawood by train. He said he was accompanied by Tamapua, Vergara, MA and CB (CJ) (MA and CB were juveniles at the time whose names were anonymised. CB’s nickname was CJ, and for convenience he is referred to throughout this judgment as CJ).
Bautista said that he went to a place at Villawood where he met the applicant for the first time. He said Karimi was also there, and also the person who was dating the applicant. He said that was the first time he had met the applicant.
Bautista said he was introduced to the applicant as “Bishop”. He said he was introduced to Karimi as “Trigger”. He stated that this was the first time he had met Karimi. He said he was introduced to the applicant and Karimi by Tamapua.
Bautista said he recalled that at that meeting there was discussion about obtaining “a Desert Eagle, a gun, and that’s all I can remember”. He said it was the applicant who was talking about that.
Bautista said he travelled to Lakemba in the maroon Tarago, which was driven by Ramos. He said that at the time of getting into the car he saw a little rifle, a machete and a pole. He said that Karimi was holding the rifle in a black bag. He said that Vergara took the machete in the car. He said that the people in the car were Tamapua, Karimi, Ramos, MA, Vergara and CJ.
Bautista said that the applicant and his girlfriend drove the car in front of the Tarago and pointed out the house at Lakemba where the robbery was to take place. He said that the Tarago parked a few houses away from the house and Tamapua told them, “Just go in the house, get the firearms and then we will go back to Villawood”. He said that he, Vergara, MA and CJ went to the house and tried to get in, but no one was home, so they ended up not doing it. He said that Karimi handed the rifle to Vergara to use as they were going to “do the house”. He said he knew the gun was loaded. He said that CJ had the machete.
Bautista said that when they returned to the Tarago, “Tamapua was pissed off, so was Karimi, because we didn’t pull off the job and saying ‘Bishop was going to get pissed off because we didn’t do it’.” He said he recalled Tamapua saying, “Why didn’t youse do it?” and “If no one’s home why didn’t you break the door down to go in”.
He said that after that they returned to Villawood. He said he remembered the applicant being “pissed off” because they didn’t do the job. He said that the applicant and Tamapua were saying that there was another house for them to do, to get the drugs and money. He said that they went to a house in Greenacre or Ashcroft. He said the same persons attended the Ashcroft house. He said that when they arrived, Tamapua pointed out the house and he (Bautista), CJ, MA and Vergara went to the front door and barged their way in to get the drugs, and Vergara swung the machete and hit Mr Stiff on the arm inside the house. He said that after the incident the group returned to Villawood. He said, “We just gave [the applicant] the weed and the laptop and he was saying ‘We can sell this off’”.
Bautista said he recalled Mr Tamapua saying when they were travelling to Villawood, “If youse wanted to be in the group youse have to do this and youse will get in the group”.
It was suggested in cross-examination by counsel for the applicant that in fact the person he perceived to be the leader of the group was Tamapua. He denied that, saying it was the applicant.
He said he also heard the applicant give instructions as to the house where the guns were. He then corrected that, saying that the applicant told Tamapua, and then Tamapua said which house it was.
He subsequently agreed that it was Ramos who told him about the second house.
It was suggested to Bautista that he had lied an enormous number of times to the police and he agreed. He said he did not know whether he had reached a point where he was confused as to what the truth was and what the lies were.
Bautista was asked about his evidence that when he got to Villawood the people there were Karimi, the applicant, some blonde girl, Tamapua and him, and that the other boys came later on. He said that wasn’t the truth. He said his evidence that the other boys all arrived together was not the truth, and that it was also a lie that Vergara turned up coincidentally.
He subsequently agreed that he had travelled from Cabramatta with Dosh (Ramos), Vergara, CJ and MA.
He subsequently agreed in cross-examination that when he spoke to the police he was just making up a story, and that that was also what he was doing throughout his evidence in Court.
In cross-examination by counsel for Karimi, Bautista agreed that he had no recollection of hearing the words “Desert Eagle”. He said he referred to it in his evidence because it was the first thing that popped into his head and that it was untrue.
He subsequently stated that his evidence about the initiation was untrue. He said that it just popped into his head. He agreed that he mentioned it because the police were suggesting there was some sort of organised group, and he thought that if he talked about initiation it would make it sound more likely.
In re-examination, Bautista affirmed that he had been at Villawood during the night of 29 June.
He also stated it was true that in respect of the second job where Mr Stiff was injured, he went into the house and was looking for drugs and money.
He was again asked who travelled from Cabramatta to Villawood, and he agreed that it was Tamapua, CJ and MA. He then added Vergara.
He said he did not know as at 29 June 2010 that the person he was introduced to as Bishop was John Khoury. He also affirmed his evidence which he gave in chief concerning the identity of the persons who travelled in the Tarago with him to Lakemba and Ashcroft.

k Eliza Brown

Brown said that as at 1 July 2010, she had known Mir and Karimi for a few months. She knew Mir as “Mack” and Karimi as “Scheck”. She agreed that on the evening of 1 July 2010 she was at the Chester Hill Hotel with Mack and Scheck.
Brown stated that she recalled that during the car trip to Chester Hill, Mack and Scheck were discussing that Scheck was “part of, like, a gang” and that Mack was going to join them. She said that Mack and Scheck told her that the reason they were going to Chester Hill was to meet other people who were part of the gang. She said to Mack that it was not a good idea, because everything you hear about gangs is never good.
Brown said that after they got to Chester Hill, they had dinner and then went to the shop. She said that at the beginning she waited outside and then Mack told her she could come inside. She said that when she went in three other people were there, but she could not remember their names. She described one of them as a big guy wearing glasses, another as a girl about her age who was engaged to him, and another as a shorter Islander guy.
She stated that a few more boys arrived at the shop later. She described them as “just lots of different guys and some Islanders”, saying there were about six or so people.
Brown said that in the back room there was a box with meat cleavers in it.
She said that at the time there were conversations occurring at the shop, the big guy was not the focus of the conversation, but he was the main person that everyone would go to.
She said they then went to the Chester Hill Hotel. When she was there, Scheck pulled her aside and told her that she should never tell anyone what she had seen or heard, because she wouldn’t know what they would do to her if she did tell. She said that at the time she did not know anything that was going on.
Brown said that when she left the pub, Mack and Scheck walked her to her car. Mack said he was going to stay with the boys so he could prove worthy to them. She said Scheck also stayed.
Later that night, near midnight or the early hours of the morning, she recalled Mack calling her and asking her to pick him up. She said she picked him up “across the road from the phone shop and the Chester Hill pub”. She said the phone shop was the same shop she had talked about earlier. She said that Mack was on his own when she picked him up and was covered in blood. She said she asked him what happened, and he said he did not want to tell her because he did not want to get her involved. However, she said he subsequently told her that he went with a group of people to stop a guy from dealing weed, and they got into a fight “and the guy got cut and some other guy got his shoulder, like, sliced off”.
She identified herself, Mack and Scheck in the CCTV footage from the Chester Hill Hotel.
Brown was asked further questions concerning the conversation she had with Mack when she picked him up. She stated that Mack told her they went to the house to stop someone from dealing. She said she asked why it mattered, and he replied that the person wasn’t dealing for the person who runs the area.
In cross-examination she said that she understood that the “big guy” to whom she had referred owned the shop. She said he was at the shop the whole time she was there and that he and the 18-year-old girl stayed at the shop after the others left to go to the pub.
Brown was referred to phone calls which took place between the applicant and Walsh during the time she said they were together at the shop. She agreed it was peculiar that they made phone calls to each other whilst they were at the shop. She agreed by reference to the phone records that they showed that Walsh may not have been at Chester Hill.
Brown rejected the suggestion that she did not go to the shop but rather went straight to the pub after eating at a pizza shop.
Brown was referred to her interview with police where she said she did not recall where she was on 1 July. She was referred to the fact that at the interview she was shown a photograph of the shop and was asked, “Have you ever been to this store?” She agreed that she responded, “Maybe, I don’t remember. I go to so many places”. She said she was sure she had been to the shop, but just did not tell the police the truth at the time, because she was told not to tell them anything about what happened that night, and was scared of what would happen to her if she did tell them. She again affirmed that she went to the shop.
She was referred to the telephone records (Exhibit AK) which showed phone contact at 11.06 pm between her phone and Mir. It was put to her that whoever she was speaking to was not Mir. She stated that was the call from Mir asking her to pick him up. It was suggested to her that the call was not after midnight and she said she could have got the times mixed up. She denied she was making it up.
It was also put to her that the phone records showed that the call came from her phone to Mir’s phone. She continued to deny that she made it up.
She was referred to a call from Vergara’s phone to her phone which took place at 25 minutes and nine seconds past midnight. She said she had no idea why she had received the phone call. She said she did not know someone by the name of Richard Vergara. She said she could have spoken to Mir during that conversation. She said she had no explanation for the series of calls which took place.
She was also referred to a call she received from Karimi. She was asked whether she had any recollection of a conversation she had with him, and said she was pretty sure that she was talking to Mack then as well.
She agreed she never told the police about this series of phone calls.
It was put to her that she never had any conversation with Mir, and she denied it.
She stated again in cross-examination that she lied when she said she had not been to the shop, saying she was scared because of what Scheck had told her. She stated that she lied to the police when she denied that she assisted Mack.
She also agreed it was a lie when she told the police that after she picked Mack up at Chester Hill, she did not notice any blood on him.
It was next suggested to her that she may well have received a call prompting her to travel back to Chester Hill but that it was not a call from Mir. She rejected this suggestion.
She agreed that she first told the police about going to the shop shortly before the commencement of the trial, in a statement which was effectively her third statement.
In answer to cross-examination by counsel for Mir, it was suggested to her that there was no conversation with Scheck and Mack about Mack going to join a gang.
It was suggested to her that she told “three big important lies” to the police. She agreed that she lied about not being in the store, about not knowing anything about Mack’s involvement in a murder, and about Mack not having spoken to her about anything relating to the potential murder of Mr Burgess. She agreed that she told those lies in both her first and second interview.
She further reaffirmed that Scheck threatened her.
In cross-examination by counsel for the applicant, Brown affirmed that she heard “nothing untoward” at the shop or at the pub but said that she interpreted what Scheck said to her as a threat. She agreed that she interpreted it as a pointless threat because she did not have the faintest idea what he was talking about.
She was referred to three telephone calls made from her phone to Deldar Kazemi at around 1.31 am on 2 July. She said she had no idea who Deldar Kazemi was and did not phone them. She said she was pretty sure it was Mack who made the call.

l Tomasi Natuba

Natuba pleaded guilty to the charges of robbery with an offensive weapon against Maxine Rogers and the murder of Kesley Burgess. He also admitted his guilt to the armed robbery of Tracey Burgess and asked for that to be taken into account on his sentence for the murder. He received a total discount of 50 per cent on his sentence, being 25 per cent for the pleas of guilty, 10 per cent for past assistance and 15 per cent for future assistance.
Natuba said that Byquar was his cousin. He said that as the result of telephone calls and text messages between them he travelled to Chester Hill on 1 July 2010. He said he first had contact with Byquar on that day at a pub at Doonside.
Natuba agreed that in the early hours of 2 July he was at Bankstown Hospital and that the police took his phone. He was shown a document entitled “Stored communications of Thomas Byquar”, which related to 1 July 2010 and referred to two different phone numbers. He agreed that one of the numbers was the phone number that he had at the time police took possession of the phone, and that he understood the other number related to Byquar.
Natuba said he met Byquar at Chester Hill station. Byquar was with an “Aussie bloke” whose name he could not recall. He said that he, Byquar and the Aussie bloke went to the pub and “met up with other boys”. He said there were about five in addition to him, Byquar and the Aussie bloke. He did not know any of them at the time but remembered being introduced to Tera and Ray. He said Tera (Tamapua) was Samoan and Ray (Tuki) was a Kiwi.
Natuba said he went to the pool room and played pool with his cousin. He said that “a couple more boys turned up” and that they went to a shop up the road, where they had a discussion about “doing our jobs and that for the night”. He said he did not know any of the additional people who came to the pub but got introduced to “Scheck”. He stated that was the only name he remembered.
Natuba said that when he went to the shop with the other boys there was a man and a woman there. He said he got introduced to the man whose name was Bishop. He described him as having glasses, a beard and that he was a “big bloke”, probably in his late twenties.
Natuba was asked what happened at the shop. He said, “Everyone was in there, the shop, the doors were closed, there were, yeah, discussions about doing jobs at night”. He said he remembered the boys talking about how to get into the group you had to prove yourself, and that they were saying, “Oh, you know, youse are going to have do jobs, like, you know, just robberies and that.” He then said it was decided who was going to do the jobs. He said it was decided that he, his cousin and another guy were going to do the robberies that night to prove themselves. He said four knives were pulled out and shown to them as the weapons they were going to use.
He said it was Tera and Scheck who were telling them who were going to do the jobs. He said he could not remember the two people who were at the shop when he arrived there (namely, the applicant and Walsh) taking part in the discussions. He said, however, that “The bloke that was in the shop before, Bishop, he got out the knives for us”. He said he did not know where Bishop got them from, but said he showed them the knives and that they knew what they were going to do with them.
He said he then went outside and got into a Tarago. He said the other people in the Tarago were Tera, Scheck, Byquar, Mir, one driver, and one other guy who was already in the car. He said they went to do the first job that night, which was at Warwick Farm.
He said that he, Mir, Byquar and the other bloke he did not know then got out of the car and knocked on the door. He said Byquar went in first and that they all went in after that. He said that one of the boys went straight upstairs, two of them went to the kitchen and that he stayed in the house. He said that everyone had weapons. Natuba said there was a mother and her two daughters there, and that he was keeping an eye on them while the boys were going through the house. He said he was asking the mother, “Where’s the drugs? Where’s the money?” He said he recalled her replying that it was the next-door neighbour that they were after, and that they had gone to the wrong house. He said they stole a laptop and a phone.
He then said they went to try next door, but that it was “too late because they’d heard all the screaming”, so they “got out of there and back to the Tarago”. He said that they told Tera it was the wrong house, and that he rang the guy they were supposed to rob and that they were arguing on the phone.
He said that after he got into the Tarago he fell asleep, and the next thing he remembered was that they were in Merrylands, parked along the side of a road, and that Scheck had gotten out of the car and into another car. He said it was a white car, but he did not know what type it was. He said, “They got another car and we were following them and there was a service station across the road and we went in there and they filled it up with petrol”. He said he was still in the Tarago. He said both cars went into the service station but that it was only the Tarago that filled up with petrol. He said that Scheck and a person he described as the owner of the car were in the other car. He said that person had not been in the Tarago previously.

Natuba then said that the Tarago followed the white car to Lurnea, and that Scheck came out of the front car and pointed out the house. He said that Scheck was saying, “Go in, grab drugs, money, and the guy could have a shotgun so get that too”.
Natuba said that the same four persons who performed the first armed robbery of Maxine Rogers went into the house. He said that Byquar knocked on the door and went in first, and then he went in, and then the other two boys. He said that each of them had the same weapons as they had for the first robbery. He described the robbery in the following terms:

“Well Byquar went in first and I went in second and I went in and I turned right and I went up the hallway because I was going to go straight for the gun and I'm coming up the hallway and there was Tracey Burgess there in front of me in the hallway. I was going up and saw a door open at the end and just see someone come out with a machete, or it was like a long knife, come with the knife and he just come straight for me and I was backing out into the living room and as soon as I come out he hit me on the shoulder and I backed off. It was me, Byquar was in the kitchen, and the other two boys were in the house and he had his back to the hall and he was moving across. He moved in front of the entrance to the kitchen, that's where Byquar, from behind, hit him a couple times on the back. Then it was Mir that run up and then hit him a couple of times in the front and he hit the floor and that's when I realised I'd been hit, I could feel the blood coming down my arm and, yeah. He hit the floor and I walked in, I've flipped the coffee table and I saw him on the ground, asked him Where's the drugs, you know, Where's the money? And he said, you know, We don't have any. I hit him once in the leg and then—“

He said that he then left the house and went back to the Tarago, and then Mir came out, and a little while after that the last two boys. He said that the boys had some bags and a Jim Beam tin.
He said that the group then returned to the shop. He said that there were four people in the white car, being Scheck, the owner of the car, Tera and someone else.
He said that he told the boys in the Tarago that he had been hit. He went into the shop and Ray helped him with the wound. He said that Ray had not been out in the Tarago that night.
He said that when he returned to the shop the man who was introduced as Bishop was there, including when he was talking about the injury to his shoulder. He said he went into the back where there was a sink and that Ray helped him clean up the blood.
Natuba said there was another person at the shop he met at the pub but who did not go out with them to the jobs. He said his name was Ricky (Vergara). He said that Ricky helped him out because he had to go to hospital, because he had a big wound which would not stop bleeding. He said they came up with a story for once they got to the hospital “if the coppers showed up”. He agreed that before he left the shop to go to hospital there was a discussion about him going there. He said Bishop said that he should not go to Liverpool because it was too close to the area, and that it was better to go to Bankstown.
He said that on 3 July he indicated to the police the Chester Hill Hotel, the shop and the location where the Tarago stopped and met the white car at Merrylands.
Natuba agreed that on 13 July police asked him to look at some photographs as part of an identification procedure. In one photograph he identified Ray, the person who cleaned up his arm. He was then shown a photograph of Karimi. He agreed that he told police that he saw the person in that photograph (Karimi) at “Kesley Burgess’ house, but he didn’t come in. He waited around the corner”. He also agreed that he told police, “He stayed in the car, telling us what to grab inside, telling us that he could have had a shotgun”.
Natuba identified a photo of Tamapua and indicated that he was present on the night of the murder but did not go into the premises.
Natuba agreed that when he first spoke to the police at Bankstown Hospital not all that he said was true. In cross-examination by counsel for the applicant, Natuba stated that after he finished work on 1 July, he went to the pub and drank two or three schooners by himself before his cousin called him. He was shown phone records and agreed that the first contact he had on 1 July with his cousin Sonny was a phone call he made to him at 6.04 pm. He was shown a text from Sonny at 6.22 pm which said, “U want 2 recruit 2 united! Dont call txt me!”. He was referred to his text “Wats dat” and the response from Sonny at 6.26 pm, “New game cumin up! Conected 2 benditoz n that!”. He agreed that “benditoz” was Bandidos, the outlaw motorcycle organisation.
Natuba said he understood that the reference to “new game” in the text meant a “new crew” or “new gang” starting up.
Natuba said he arrived at Chester Hill at about 8.00 pm. He said he met Sonny at the station. He said he could not remember the identity of the person who was with Sonny. He said they went straight from the station to the pub.
Natuba recalled that on the way to the pub, Sonny told him that he was going to introduce him to “some boys and that”. He said that at that stage they did not talk about doing any jobs and that he thought they were just going to the pub for drinks. He said he had two or three beers there, and that prior to that he had been drinking in the Doonside Hotel and had bought a couple of bottles of Bundaberg rum with a mixer when he went down to watch footy training. He agreed that he had quite a lot to drink before he got to the pub at Chester Hill, but said he was not really affected when he got there. He said, “I could still kind of, kind of knew what I was doing”. Natuba stated he was at the pub for 10 to 15 minutes, during which time he had three schooners and played a game of pool.
So far as his recollection was concerned, it was put to Natuba that after he spoke to the police in July 2010, he did not even remember Tamapua’s name. He agreed that Tamapua was one of the persons his cousin introduced him to at the pub, saying that he was the first person he was introduced to. He maintained that no jobs were discussed until they arrived at the shop. However, he subsequently said that he thought there might have been discussions at the pub about doing jobs, which was why they went to the shop. He was asked what sort of jobs they were discussing at the pub and he said he thought it was just break and enters.
Natuba said he could not remember anyone at the pub saying why they were going to the shop but stated that no one said anything about helping the owner set up the shop. He thought that four or five of them arrived at the shop at the same time. He said the persons who arrived included him, Sonny and Tamapua, and that a couple of boys came afterwards, but agreed he had no clear recollection as to who was in the shop at the time. He also agreed that he had no clear recollection of this when he was asked by the police in July 2010.
He stated that when he arrived at the shop, he thought there were four people there, two males and two females, including a tall person of Middle Eastern appearance.
He repeated that he thought he was introduced by Tamapua to Bishop, who was the owner of the shop. However, he agreed that on 2 July 2010 when he spoke to the police he never used the name Bishop to describe anybody. He agreed that he provided racially based descriptions of persons who were there at the time and that it was not until he received the police brief in 2011 that he had started to associate names with people.
Natuba was asked about his evidence in chief to which I have referred at [97] above. He agreed that he knew about jobs before he got to the shop. He was referred to his evidence in chief when he said that when he got to the shop there was a man and a woman there. He agreed that his recollection was there were four people there, two male persons and two female persons. He was referred again to his evidence to which I have referred at [98] above. He said he could not recall who it was who decided who was going to do the jobs. He was referred to his evidence in chief where he said that it was Tera and Scheck who were telling them who was to do the jobs, but he said that in fact he did not have a clear recollection. He agreed that a lot of people were talking and that was why he did not have a clear recollection.
Natuba was then taken to the events of the evening of 1 July after he left the shop in the Tarago. After being asked questions about where people were located in that vehicle, he was asked the following questions and gave the following answers:

“Q. What you understood as to how many jobs would happen that night as you jumped into the car outside the shop?
A. Just one.
Q. Just one?
A. Yeah.
Q. Were you told where that was going to be?
A. No.”

He agreed that whilst in the Tarago going to the first job it was Tamapua who was telling him and the other boys what to do, and that Tamapua was “directing traffic”. He was asked whether, while they were all in the Tarago, Tamapua had ever used a name to describe who would be in the house, and he said he did not. He was asked if he had ever heard Tamapua use the name “Beanie Boy” and said he had not.
Natuba said that after the invasion the subject of count 5, he and the other persons involved returned to the Tarago and someone told Tamapua that they went to the wrong house. He said that Tamapua was angry, picked up the phone and appeared to be talking to somebody. He said he did not know to whom Tamapua was talking, but agreed he was arguing with the other person. He said he fell asleep during the course of the conversation. He stated that before leaving Warwick Farm and before he went to sleep, he could not recall anybody saying, “Hey, how about we do another job”. He said that Tamapua did not say to him and the rest of the boys, “I have an idea. We have another house I have got in mind we can knock over” or words to that effect.
Natuba said he thought it was when the second car came that he knew they were going to do another job. He said, “Somebody told me but I knew from there”. He said that someone told him about the second job when they were driving towards that job. He said he was not sure whether it was Tamapua who told him where they were going.
He stated that when the cars arrived at the Lurnea house Scheck was in the white car in front and pointed out the house. He said that Scheck came to talk to them in the Tarago. He said that only Scheck and the driver were in the white car. He stated that Scheck told them to “grab drugs, money” and that there could be a shotgun in the house so to try and get that too. He said that the same boys went to do that job as did the first job. He stated that Tamapua stayed in the Tarago at Lurnea.
Natuba agreed that after he got back to the shop he did not know what happened to the weapons.
Natuba agreed that he signed a statement in a police notebook at the time he was interviewed in hospital on the morning of 2 July. He said that contrary to what he told the police officer, he bought the three bottles of rum and coke before he went to training. He agreed that the truth was that he had four or five schooners of beer at the pub and then drank the three longnecks of rum and coke on the way to training. He agreed that the reason he did not train that particular evening was because he was drunk. He agreed that the balance of the statement recounting how he was injured was in large part untrue. He agreed that what he was doing was blending the truth with lies.
Natuba agreed he next spoke to the police on 2 July when an ERISP was conducted. He agreed that his answer in that interview that he was told to go to the house by Tamapua was correct. He agreed that in some respects he did not tell the truth in that interview because he was trying to protect his cousin Sonny.
It was suggested to Natuba that he did have a knife with him at Doonside, and that when he left Doonside he knew something was going to happen because he had spoken to his cousin Sonny about it, and he agreed. He also agreed that before he left Doonside he knew he was going to become involved in home invasions but said that he did not know it was going to happen that night.
It was put to Natuba that in the answers he provided to the police officer, he provided a description of who told him about the house at Warwick Farm. He agreed that it was definitely the person who was in the front seat of the Tarago, and that that person was in fact Tamapua. It was put to him that Tamapua supplied the address for both jobs. He said, “It was different people for different – for both jobs” and clarified that by saying he was sure it was different people for both jobs.
Natuba was then cross-examined on his ERISP dated 3 July 2010. He agreed that he told the truth in that interview when he said that Sonny spoke to him whilst he was at Doonside and Sonny was at Chester Hill on the evening of the jobs, and told him that there were jobs available that night if he wanted to do them. He agreed he told the police in that interview that when he left the pub with the boys, they were discussing doing those jobs outside the pub. He was referred to his statement in that interview that the “Islander fellow” was doing the talking and identified that person as Tamapua. He was referred to his statement to police that the man who provided him with weapons was the “very large wog” who he saw in the shop.
Natuba was taken through various other questions in the interview. He agreed that what he was describing was that after the first job proved to be a failure and he returned to the van, and after Tamapua had the argument on the phone, Tamapua then said to the “assembled lads”, “Do you want to do another job?” He said that was his recollection of events and that shortly after that he went to sleep.
Natuba was then asked about his evidence in the committal proceedings. He agreed, after being referred to that evidence, that in June 2012 he had a clear memory of Tamapua giving “you lads” the option of doing a second job that night.
It was put to him that his clear recollection on 19 June 2012 was that it was Tamapua who pointed out the house in which Kesley Burgess was killed. He agreed that was what he said on 19 June 2012, but said he now thought it was the person in the white car. He agreed that what he said at the committal did not marry up with his understanding of what the police brief said. In cross-examination by counsel for Karimi, Natuba agreed that he did not tell the whole truth to the police. He agreed he was on two good behaviour bonds at the time he got himself involved with his cousin and the other participants.
Natuba agreed that after he knew that Mr Burgess had died, he asked the police what would happen if he was to “roll over”, namely, if he became a witness, and they explained it to him. He agreed that the police told him that he would get a significant benefit by pleading guilty, and that he would get a bigger benefit by “rolling over” and giving evidence.
Similar to the approach taken by counsel for the applicant, counsel for Karimi put to Natuba that he was influenced in what he said in his evidence by what was in the police brief.
He agreed that whilst he was in the Tarago he kept nodding off and did not hear everything that was said or see everything that was done. In that context he was referred to inconsistent evidence he gave concerning the number of people in the Tarago.
Natuba agreed that in travelling out to Warwick Farm, he never saw any firearm, and never spoke to anyone about any firearm. He agreed again that Tamapua pointed out the house the subject of the home invasion and the alleyway that they had to run to. He agreed that it was Tamapua who was angry that the wrong house was invaded and who was attempting to fix the situation by making a phone call to find out which was the right house. He agreed that when nothing came of going to the right house, Tamapua said, “Boys, do you want another job”, and that the other job turned out to be Mr Burgess’ house.
Natuba was referred in cross-examination to the identification procedure of various people he went through about 12 days after his arrest. He agreed that at that time when he identified Tamapua he was in no doubt he was the one who had pointed out the Burgess house. He was referred to his evidence that “He [Tamapua] pointed out the house belonging to Kesley Burgess as the place we were going to rob.” He was referred to the fact that he gave the same evidence at the committal proceedings.
He agreed that his evidence in chief was that he saw Scheck pointing out the house. It was put to him he did not have any recollection of that at all, but he stated he knew that someone pointed the house out.
It was pointed out to him that in his interview of 3 July 2012 he stated that the house was pointed out by whoever was in the back because he was just starting to wake up It was put to him that he never saw anyone pointing anything out, and he responded that he did not know. He was asked, “So why lie about saying Scheck pointed out the house from the front car?” and he responded, “I thought he did”. It was put to him that he did not see the man who he called Scheck getting into any white car, and he responded that he did see him. It was put to him that on 3 July he told the police that Tera and the driver of the Tarago got into the white car and he agreed. He also agreed he knew that the driver of the Tarago was not Scheck. He was then referred to his answer in that interview that it was the “rat’s tail Asian and the Samoan” who got into the white car. He agreed that the Samoan was Tera.
It was then put to him that based on his statement in the interview, whoever got into the white car had come out of the Tarago. It was suggested that if one of them was Tamapua he could not have been in the Tarago when it arrived at the Burgess house. He said he got mixed up.
He was referred to his evidence in the committal proceedings that Tera and Scheck got into the white car, and was asked why in these proceedings it was only Scheck who he claimed got into the white car. He answered, “I don’t know”.
He stated that he was certain that it was Scheck who told him, “Go in, grab drugs, money, and the guy could have a shotgun so get that too”.
In cross-examination by counsel for Mir, Natuba again agreed that when he first started giving information to the police about what happened on 1 July, he had very limited knowledge of people’s names. He agreed that he started to adopt names when he read them in the police brief.

m Detective Senior Sergeant Scott Houldin

Detective Senior Sergeant Houldin attended the scene of the home invasion at Warwick Farm and the one which took place at Lurnea at which Mr Burgess was killed. He gave evidence of the seizure of the Tarago on 6 July 2010, stating that Ramos was in the driver’s seat.
Detective Senior Sergeant Houldin noted that on 12 July he showed Tamapua a number of photographs. Tamapua identified Ramos and said that he drove the people that murdered Kesley Burgess. He noted that Tamapua also said that the person he identified from the photograph as Mack (Mir) was the person who sliced Mr Burgess’ right wrist.
Detective Senior Sergeant Houldin gave evidence that Tamapua was shown a photograph of the applicant. He stated that Tamapua said that on the night of Kesley Burgess’ murder the applicant was at the shop and “they basically called him ‘the boss’”. He said he knew him as “John Bishop” and stated that he was the one “who gave the call to his triggerman, Scheck, to do the Jacob’s job”.
Detective Senior Sergeant Houldin stated that Jacob was the brother of Kesley Burgess.
Detective Senior Sergeant Houldin gave evidence of further identification procedures which took place with Tamapua on 14 July. Tamapua identified MA as one of the persons he saw on the night of the murder, saying he saw MA in the maroon Tarago at the back of the shop. He said that Tamapua stated that MA ran into the house with the three other males who killed Kesley Burgess.

Detective Senior Sergeant Houldin said that Tamapua identified a photograph of Karimi. Tamapua said he saw him on the night of Kesley Burgess’ murder, at the pub, in the car and in the shop. Tamapua stated that he was the person who pointed out the house of Kesley Burgess on the night. He said that Tamapua described him as “John Bishop’s right hand man” and said that they called him “the trigger man”.
Detective Senior Sergeant Houldin stated that Tamapua also identified a photograph of Vergara (“Choppy Chan”), who he said was at the shop on the evening in question. Tamapua also identified a photograph of Natuba, who he said was the one who sliced Mr Burgess’ ankle and got sliced a couple of times on his arm. He stated that Natuba told him, “After Kesley Burgess sliced him he lost it and started chopping into him”.
Detective Senior Sergeant Houldin referred to an interview he had with Tamapua at the Long Bay Correctional Centre on 12 July. He stated that his notes recorded Tamapua’s answers, using Tamapua’s words only and adding nothing of his own. He was referred to one of the questions, “Who do you know this person to be?” and Tamapua’s answer, “John Bishop”. He was referred to the question he asked, “What did this person do”, and the response, “He is the one who gave the call to his triggerman Scheck to do the Jacob’s job”. He stated that Tamapua signed the document.

n Detective Sergeant Nicolas Sedgwick

Detective Sergeant Sedgwick was an officer who was also involved in the investigation of the murder of Kesley Burgess. He gave evidence concerning the seizure of a certain mobile phone, and the fact that he obtained an intercept warrant for the applicant’s phone and Aimee Walsh’s phone. He identified calls that had been made by the applicant which had been recorded. Some of these calls were played. To the extent necessary they will be dealt with in dealing with the parties’ submissions.
Detective Sergeant Sedgwick gave evidence about footage obtained from CCTV from a service station at Merrylands recorded on 1 July 2010. He said of interest to the police were vehicles which had the same shape or appearance as a maroon Tarago and a white small vehicle.
He was shown photographs taken from the CCTV footage at the BP Service Station at Merrylands which showed a vehicle consistent with the Tarago. The fourth and fifth pages of the photographs also showed the Tarago, whilst the sixth had the Tarago and a small white vehicle near to it with its headlights on. He said that the seventh showed the Tarago and the small white vehicle mostly obscured, whilst the eighth showed the Tarago and the small white vehicle pulling away from its other side. He said the ninth showed the Tarago driving away, and the tenth showed the Tarago following the small white vehicle, having performed a U-turn.
There was tendered through Detective Sergeant Sedgwick a registration certificate for a Toyota Echo motor vehicle registered in the name of Sadequa Karimi. Detective Sergeant Sedgwick said he was able to determine that Sadequa Karimi and Mohammed Karimi were cousins. He also stated that his investigations showed that Abdul Wahid Karimi, Sadequa Karimi and Jacob Burgess attended the same high school.
Detective Sergeant Sedgwick gave evidence that the maroon Tarago associated with Ramos was registered in the name of his father.
Sergeant Sedgwick gave evidence that he recovered Kesley Burgess’ phone at the premises occupied by Tamapua wedged under a brick near a fence.
In cross-examination by counsel for the applicant, Detective Sergeant Sedgwick agreed that on 3 July Tamapua used a phone that effectively belonged to Kraak. He agreed that although a mobile phone is linked to an individual, the calls made on it may not be made by that individual. He was asked about a call at 9.28 pm on 1 July 2010 which appeared to be from Kraak to someone called Dean Manning. He agreed that he understood that as of 1 July Kraak was sharing accommodation with Tamapua.
Detective Sergeant Sedgwick was referred to a series of phone calls commencing at 11.11 pm on 1 July between the phone identified with Vergara and Andrew Rhodes-Lightfoot (Beanie Boy). He agreed that those calls predated the Lurnea events.
Detective Sergeant Sedgwick said that to his understanding, Rhodes-Lightfoot was contacted on the night of the invasion at Warwick Farm by Tamapua and that Tamapua, for a want of a better description, taunted Rhodes-Lightfoot. He agreed it appeared that Tamapua was using Vergara’s phone throughout the evening, and that Vergara’s phone was used to contact Rhodes-Lightfoot on a number of occasions throughout that night. He agreed there were quite lengthy conversations recorded.
He also said that from his review of the telephone calls, Kraak had been contacted by Tamapua between the Warwick Farm home invasion and the second home invasion at Lurnea.
In re-examination, Detective Sergeant Sedgwick stated that the CCTV footage at the Chester Hill Hotel was four minutes slow.

o Tamapua

Tamapua agreed that he was known as Tera. He agreed that he pleaded guilty to the offence of specially aggravated break and enter and steal on 29 June 2010, which included the infliction of grievous bodily harm upon James Stiff. He also agreed that he pleaded guilty to the murder of Kesley Burgess. He also agreed that he pleaded guilty to two offences that related to the incidents the subject of count 9 against the applicant, and that he asked that similar offences to those charged against the applicant and his co-accused on counts 1, 5 and 8 be taken into account on sentence. Tamapua agreed that he received a 50 per cent discount on sentence, made up of 25 per cent for the plea of guilty, 10 per cent for past assistance to the authorities and 15 per cent for future assistance.
Tamapua said that before 29 June 2010, he was protecting a drug dealer named Kevin who was dealing at Villawood. He said he was sitting in Kevin’s house and Bishop and Scheck walked into the house and pulled the drug dealer out of the house. He said he told Bishop and Scheck he was protecting the drug dealer and that Bishop told him to piss off.
Tamapua said that Bishop and Scheck were accompanied by Ray (Tuki) who he knew and maybe four other people.
Tamapua said that Bishop asked him for his phone number and that he gave it to Ray. He said that the next day, he was rung by Ray to meet him at Kevin’s place, as he was going to take him to a place named “the compound”, which was a bedsitter “where Bishop was staying with his missus”. He said that the next day Ray met him, and they walked to the Compound and met Bishop and Scheck. He said he took Toby (Kraak) with him. He said that Kraak was living with him at Campbelltown.
Tamapua said that they went out to the back of the Compound. He said that Bishop pulled him to the side and said, “What do you do?” and that he replied, “Oh, I protect drug dealers, but a couple of my boys they do home invasions”. He said that Bishop said to him, “Oh, do you want to join?” and that he replied, “Well, is this going to make us, is this going to make good money?” and that Bishop said “Yes”, so he joined. He said that after that, Bishop said, “Come out the back and meet the boys” and that he was introduced to Scheck.
He said that the following day, Bishop told him he had a few jobs shutting down drug dealers. He said that Bishop said to them to bring some of their mates the next day and that Harry was going to show them a house in Ashcroft, which was where the job was supposed to happen. The actual identity of Harry was not made clear at the trial. Tamapua said that the next day he brought a couple of his boys down, including MA, CJ and Dosh (Ramos). He said that they travelled from his house in a maroon Tarago driven by Dosh. He subsequently indicated that Ricky (Vergara) was also there.
Tamapua said that when they arrived at the compound, Scheck, Ray, Bishop and Aimee Walsh were there. He said that Bishop brought them to the front of the compound and made a joke, saying, “Oh, we’re going to do a job right now” and that he told Scheck to get the .22 calibre rifle. He said that a couple of the boys were a bit nervous because they did not want to do anything at that time. He said that Scheck said, “Here’s the gun”, and that Bishop said he was only joking but also said, “there’s a bloke that’s coming down from Ashcroft, to take youse and show you the address in Ashcroft, which is the house you’re going to be doing tonight”.
Tamapua said that the gun came from the compound.
He said that he and the boys waited outside, and that when Harry, who was a “big Lebanese bloke”, got there, Bishop said, “This is the bloke here who’s going to be taking you to an address in Ashcroft”. Tamapua said that by that time he had the machete already in the Tarago, and that Bishop handed over the gun to Scheck and said, “Harry’s going to be taking youse to an address in Ashcroft” so they left.
Tamapua said that the Ashcroft job did not happen on that day, because the guy who owned the house was not in the house. He was reminded that the Ashcroft job the subject of count 2 took place on 29 June and said that he thought the proposed Ashcroft job was the day before.
Tamapua said that the persons travelling in the Tarago on that day were Scheck, CJ, Josh (Bautista), Ricky and Dosh. He said that after they returned to the compound, they were told to come back the next day, which was the day of the Lakemba job. He said he recalled Bishop saying, “I’ve got a job for you tomorrow”. He said that before he left, Bishop asked, “What weapon do you have to use?” and he replied, “I’ve got a machete in the van”. He said that Bishop told him to go and get it and leave it at the compound, so if anything happened they would know where the weapon was, and that it would be a lot easier for the boys to pick it up from Bishop’s place.
Tamapua said that the next day he arrived at the compound about 8.00pm. He said he arrived with the same people who were with him the day before, and that the same people were at the compound as on the previous day. He said that Harry was not there.
Tamapua said that he went inside and brought Ricky with him, and that Bishop said, “If youse want money, I’ve got a job for youse”. Bishop said that what he wanted was the Desert Eagle gun, saying that there were other guns with it, but that if they could get it he would pay them the price of the guns. He said that Bishop said this in the presence of Ray, Scheck, Aimee, Ricky and himself.
Tamapua said that Bishop and Aimee told them to follow them to the address. He said, “We hopped in the Tarago, Aimee and Bishop hopped in their green SS Commodore and we followed them to the address”.
Tamapua confirmed that he, Scheck, Josh, Dosh, Blackie (MA) and Ricky were in the Tarago, and Aimee and Bishop were in the green Commodore. He said that there was one person in another vehicle in front of Bishop’s car. Tamapua said they got to the address and parked next to a petrol station across the road. He stated that Bishop came out of the car and told them that the house was two houses on the right. He said that there were two weapons in the vehicle at the time, which were the machete and the .22. He said that before they left the compound, Bishop had grabbed the .22 from the cupboard. Tamapua said, “He grabbed the .22 with a satchel that had bullets in it, he walked out to the lounge room with it, loaded it, gave it to Scheck and gave Scheck the bag of ammunition with bullets inside”. Tamapua said he had grabbed the machete and taken it.
Tamapua said that Ricky, CJ, Josh and MA got out to do the job. He said that they came back and told them that there were four males and a female inside the house and they did not want to do it, and that Scheck told them to go back because Bishop specifically wanted the Desert Eagle from the house. He said they went back again, and then came back and said the house light was turned off and no one was home. He said that Scheck got angry because they did not get the gun. Scheck said, “Get in the car, let’s go. We’re going to get shot when we get back to the compound because Bishop specifically said to get the Desert Eagle”.
He said that when they returned to the compound Bishop said, “Well, because youse didn’t do the Lakemba job, youse can make it up by going to do the Ashcroft job”. Tamapua said that the Ashcroft job was done the same night as the Lakemba job. He said that that was said in the presence of everyone that was in the van and Aimee and Ray.
Tamapua said that when they got back to the compound the weapons were taken out of the Tarago and into the unit. He said that Scheck had the .22 and Ricky had the machete and carried it to the compound. He said that the machete came with them to Ashcroft.
Tamapua said they drove to the address in Ashcroft, where he pointed out the house which had been shown to them by Harry. He said that they stopped near an alleyway and he said to the boys that the alleyway would take them straight to where the house was, and the boys left. He said that by “the boys”, he was referring to CJ, MA, Josh and Ricky. He said that Ricky took the machete, and that he, Scheck and Dosh remained in the vehicle.
Tamapua said that he recalled Scheck telling the boys what was in the house, which was something to do with weed, and that they went and did the job and came back with just a laptop and a container of cannabis.
Tamapua said that when they returned to the compound, Bishop and Aimee were there. He said that after they got out of the van, Scheck lined up his boys and patted them down to make sure no one was hiding anything from the job that was done.
He said Bishop weighed the cannabis and handed it out to the boys to smoke that night. He said that at that stage everyone started leaving, although he and Scheck stayed.
Tamapua said that after the others left the compound, Bishop told him he was planning on shutting some drug dealers down at Liverpool, referring to a motel called Grandstand which was across the road from a horse track at Warwick Farm. Bishop said he knew a few dealers there and asked Tamapua to recruit more boys to shut them down. He said he wanted them shut down so he could put his dealers in there and make his money, and “stuff like that”.
Tamapua gave evidence about his first visit to the shop. He said that the day before the murder happened, they went to the compound and Bishop told them to meet him at Chester Hill to help him clean the shop. He said that they all met him at the shop and helped him clean. He said that the persons who were there were his brother, his missus’ brother, Ricky and Toby. He said that Bishop and Scheck were there when they arrived at the compound. He said they got to the shop at about 7.30 or 8.00pm that night.
Tamapua said whilst they were cleaning the shop, Bishop got a phone call from his girlfriend saying that “these Lebo blokes are harassing him [sic] at the kebab shop”, and so they “all just left everything and ran to the kebab shop”. He said that because his missus was pregnant at the time and was also at the kebab shop, “me and Ray … just smashed everyone in the shop, including the shop owner”. He said that after that, they all split up and went their own ways and jumped back in cars and took off back to the compound.
Tamapua said that the next morning, he asked Ricky and Toby and his missus to come down with him to the compound. He said they caught the train from Campbelltown to Villawood, but that on the way there he saw Sonny (Byquar) on the other side of the station in Minto and told him to meet him at Cabramatta. He said they got off at Glenfield, and that Toby and Ricky got onto another train and continued going to Cabramatta. He said he and his missus stayed back and waited for Sonny and got the same train as him. He said Sonny said, “I heard stories from Cabramatta that you were doing home invasions and standing over people and stuff like that”. He said Sonny asked him, “You making good money?” and that he said “Yeah, do you need money?” Tamapua said he said to Sonny, “Oh, if you want in, I’ll introduce you to a few of the boys I know, they’ll help you get some money”. He said they stopped at Cabramatta, met Toby and Ricky again and all took the train to Villawood. He said he rang Ray to let him know they were going to the compound but that Ray said to meet him at the shop.
Tamapua said that when he reached the shop the roller door was shut. Scheck opened the door and they walked in. He saw Scheck, Mack (Mir), Mack’s girlfriend (Eliza Brown) and Aimee. He said that Scheck introduced him to Mack, and he introduced Sonny to Bishop. He said that Bishop asked Sonny, “Do you have any boys and stuff”. He said Bishop was telling him about United Brothers and how he wanted to expand it. He said Sonny said, “Yes, I’ve got boys in Doonside”, who were Tomasi’s (Natuba) boys. He said Bishop told Sonny to bring a few of them down and that he was going to put them through a test that night as an initiation for the boys.
Tamapua said they then continued cleaning the shop. He said Bishop brought out the butcher’s knives and said, “Look at this”. He then said, “There’s plenty more from where that came from”. Tamapua said he replied, “What do you mean?” He said he was shown a box that was already there which was full of butcher’s knives. He said that Scheck then said, “Let’s go to the pub, my shout”.
Tamapua said they went to the Chester Hill pub. He said they played some pokies and had a few drinks and went over to the pool area. He said that Ray was trying to find them, as he did not know where they were. Tamapua said he told him they were at the pool area, and that Ray then walked in and he said to him, “Get the car ready” and “Ring Dosh”. He said he told Ricky to get a hold of Dosh and to tell him to come down. He then said that Ray called Scheck and they walked outside and spoke about something. He said he could not hear what they were saying, so he “got the shits” and “grabbed the boys and went back to the shop”. He said that by that stage Natuba had joined them. Tamapua said that when he got back to the shop, he confronted Bishop about how Ray took Scheck to one side and spoke one on one. He said Bishop replied that it would be sorted out when Ray and Scheck got back. Tamapua said that when they returned, he said to Scheck in the presence of Ray and Bishop, “Yeah, I told youse, if I’m going to be joining youse, youse have to be up front with us and youse have to be honest with us”. He said Bishop told Scheck and Ray off. He was then asked these questions and gave these answers:

“Q. What happened then?
A. And then we all just sat around and then Scheck turned around to Bishop and said ‘do you want us to do the Jacob job tonight?’ And Bishop said ‘yes’. And Scheck turned around to the boys and goes, ‘I want to take you to a house where there's a couple of - ice, drugs, and weapon’. And I said to him, ‘I got a drug dealer as well. His name is Beanie Boy, he lives in Warwick Farm’. And that was the jobs that was done that night.
Q. You say that there was talk between Scheck and Bishop about a Jacob job?
A. Yes.
Q. Had you heard anything about the Jacob job prior to it being mentioned in the shop at this time?
A. Like before we—
…
Q. And you say you raised a job yourself, being Beanie Boy?
A. Yes, because I knew this Beanie Boy. Back then he was dealing drugs and I knew he was - and plus I had a grudge against him. I wanted him to feel the pain I had inside me so.
Q. There were conversations you've told us about which you've taken up to a time where you raised your job?
A. Yes.
Q. What happened then?
A. Me, Scheck and Bishop decided who was going to run in the houses and we decided that it was going to be Tomasi, Sonny, [MA] and Mack because they were the three new blokes. It was pretty much initiation for all three of them.

There are a number of matters which must be considered in dealing with Natuba’s evidence. I have summarised his evidence at [91]-[146] above. That summary and what I said in the immediately preceding paragraph demonstrates his unreliability. In that context it must be remembered that he admitted he was drunk on the day in question, having had four or five schooners of beer at Doonside followed by three longnecks of rum and coke: see [128] above. He also stated that he had had three schooners of beer in 15 minutes at the Chester Hill Hotel. Whether or not his statement that he “still kind of, kind of knew what I was doing” was accurate, that fact coupled with the evidence he gave demonstrates his unreliability.
In these circumstances it seems to me that the evidence of Tamapua, Witness A and Kraak taken in isolation was not capable of satisfying the jury beyond reasonable doubt that the applicant participated in the agreement which led to the Burgess killing. However, there are a number of other matters which must be taken into account.
First, there is nothing to suggest that Tamapua had any knowledge that would cause him to form the view that there could be drugs, money and a shotgun at the Burgess house. The evidence of Jacob Burgess was that he had never seen Tamapua before he saw him at court. Tamapua himself admitted that he lied when he told the police that he was a mate of Jacob Burgess.
Second, all the witnesses were consistent in saying it was Karimi who said that there were drugs in the house: in relation to Natuba see [126] above, in relation to Tamapua see [194], in relation to Witness A see [289] above, and in relation to Kraak see [401] above.
In addition, there was the evidence of Mitchell Kearns that he told Karimi’s cousin where Jacob Burgess lived and that that was where he got his pot: see [23] above.
In considering the evidence of Jacob Burgess that he did not know Tamapua, and having regard to the statements of witnesses as to what was said by Karimi, it was open to the jury to be satisfied beyond reasonable doubt that Tamapua did not suggest the job.
That is by no means the end of the matter. The fact that it was open to the jury to find that the Burgess invasion was suggested by Karimi does not lead to the conclusion that the applicant participated in the agreement to do the invasion. However, in that context the timeline provided by the Crown (the accuracy of which was not disputed) is of particular relevance.
The first thing to note is that calls were made by Karimi to his cousins prior to the Warwick Farm invasion but after the Tarago had left the shop to go to that location. The next call from Karimi to his cousin was at 11.08 pm, three minutes before the Tarago and the Toyota Echo were observed at the Woodville Road service station at Merrylands. It follows that the agreement to meet Karimi’s cousin must have occurred prior to the Warwick Farm invasion, either at the shop or on the way from it to Warwick Farm.
It seems to me unlikely that in the few minutes after the departure of the Tarago from the shop and the first call by Karimi, Tamapua and Karimi formulated a plan to carry out the Burgess home invasion. There was no evidence from anyone including Natuba to this effect. The only matter that could provide support for the contrary proposal is that if the invasion was planned at the shop there was no reason why Karimi could not have called his cousins whilst he was there rather than in the car.
However, in considering these matters the role of the applicant in the offences which occurred between 30 June and 3 July must be considered. It was not disputed that the jury was entitled to be satisfied beyond reasonable doubt of his guilt of the offences which are not subject to this appeal. Having regard to the evidence in respect of counts 1-3 and 5, it is clear that he directed that those robberies were to take place and participated in the agreement to do the Beanie Boy invasion. Further, he was exercising a degree of control over the events that gave rise to the Miller pools incident. I have summarised some of the calls made in respect of this incident at [528]-[531] above, which in my opinion make it clear that he was one of the directing minds if not the directing mind of that operation.
It is also important to bear in mind the applicant’s relationship with Karimi. The applicant accepted that he had known Karimi since 2009 (see [475] above), although he denied that he was one of his trusted persons: see [519] above. He was described by Karimi as “the older brother” (see [514] above) and that he arranged for Karimi to deal drugs for him: see [527] above. In those circumstances the jury was entitled to find that Karimi would not have organised the job without the applicant’s involvement.
The events at the shop further support the applicant’s involvement. The group met at the shop after returning from the Chester Hill Hotel. The jury was entitled to reject the applicant’s evidence that he was not at the shop when the group returned from the pub, particularly as the Asian shop which the applicant said he went to was closed at that time: see [537] above.
Further, on the group’s return from the Burgess home invasion, the evidence of each of Natuba, Tamapua and Kraak was that the applicant directed the injured Natuba to be taken to Bankstown Hospital rather than Liverpool Hospital: see [109], [201] and [348] above. Witness A also said that someone said to take Natuba to Bankstown Hospital but did not identify the person: see [291] above.
In addition, the events after 1 July provide some further confirmation of the applicant’s involvement. First, the telephone intercepts reveal that he telephoned Karimi on 2 July asking if he had “gotten rid of anything”: see [520] above. The jury would be entitled to reject his evidence that that related to ice and to accept that he was in fact referring to anything to do with the robbery. Further, the Jim Beam tin found at the shop had the applicant’s fingerprints on it (see [276] above) and DNA consistent with that of the deceased: see [411] above. Finally, one of the meat cleavers located at the Ingleburn warehouse occupied by the applicant had DNA consistent with that of the deceased: see [34] above.
To this evidence there can be added Brown’s evidence of the conversation she had when she picked up Mir after the Burgess invasion. She stated that Mir told her he went with a group of people to stop a guy from dealing weed and they got into a fight, and that when she asked why they did it Mir responded that that person was not dealing for the person who runs the area: see [69]-[71] above. It would be open to the jury to conclude that the reference to the person who runs the area was a reference to the applicant, a matter which lends further support to the conclusion that he participated in the agreement to undertake the invasion.
These matters provide powerful support for the evidence of Tamapua, Witness A and Kraak that the applicant actively participated in the decision to carry out the Burgess invasion. In these circumstances, notwithstanding the reservations I have in relation to the evidence of Tamapua, Witness A and Kraak, it was open to the jury in the sense described in the authorities to be satisfied beyond reasonable doubt that the applicant was guilty of the charges the subject of the appeal.

Conclusion

In the result I would make the following orders:

Extend the time for the applicant to file a notice of appeal up to 12 November 2019.

Grant the applicant leave to appeal.

Appeal dismissed.

HOEBEN CJ at CL: I agree with the Chief Justice and the orders which he proposes. I also agree with the additional observations of Beech-Jones J.
BEECH-JONES J: The evidence adduced at the trial is summarised in detail in the judgment of Bathurst CJ. His Honour has also identified the principles applicable to the sole ground of appeal which I gratefully adopt.

Crown Case

To address the ground of appeal it is necessary to explain how counts 6 and 8 related to the other parts of the Crown case as accepted by the jury, bearing in mind that there is no challenge to the applicant’s convictions on all the other counts noted below.
The applicant was a drug dealer principally supplying methylamphetamine (or “ice”) in South Western Sydney. He was assisted by Mohammed Karimi. The applicant and his girlfriend Aimee Walsh resided in a bedsit in Villawood (the “compound”). Ray Tuki resided in an adjoining flat, was friendly with the applicant and participated in some of the offences. The applicant had also leased a shop in Chester Hill (the “shop”) which was ostensibly used to sell a variety of goods, including meat cleavers. A gang established by the applicant, the United Brothers or United Brotherhood, operated from the shop.
In June 2010 the applicant met Anaterea Tamapua when the applicant attempted to stand over another drug dealer. Tamapua intervened on the drug dealer’s behalf. Sensing an opportunity, the applicant recruited Tamapua and some of his associates to shut down the activities of competing drug dealers (R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 at [31]; “No 11”).
On 28 June 2010, Tamapua attended the compound with Richard Vergara, John Bautista, David Ramos and others. Ramos was in possession of his family’s Tarago van (the “Tarago”). The applicant was present at the compound with Karimi, Tuki and Walsh. At some point, someone referred to as “Harry” arrived with another vehicle. (There was evidence suggesting his identity was Harry Marache, a friend of the applicant.) He was introduced as the person who would take the group to the address of a rival dealer, James Stiff, in Ashcroft. The applicant gave Karimi a shortened .22 rifle. The would‑be assailants left in two vehicles, with the applicant remaining at the compound. The attack was called off when “Harry” received a call advising that the dealer was not at the Ashfield address (No (11) at [39]).
On 29 June 2010, Tamapua returned to the compound where the applicant, Karimi, Tuki, Walsh and others had gathered (No (11) at [42]). According to the Crown, the applicant instructed Tamapua and the others to raid the premises of a relative of a former girlfriend, Ernesto Bertolli, to steal firearms. Ramos drove Karimi, Tamapua and others to the target location in the Tarago, with the applicant remaining at the compound. Karimi remained in the vehicle while Tamapua and others attempted to raid the house, but no-one was home. This conduct constituted count 1 on the indictment.
According to the Crown, upon their return the applicant instructed the group to carry out the raid on the Ashcroft address that was previously attempted on 28 June 2010. Ramos drove the Tarago with Karimi, Tamapua, Vergara, Bautista and others. When they arrived at the Ashcroft address, Vergara, who was armed with a machete, Bautista and two others invaded Mr Stiff’s home. Mr Stiff was struck with the machete and the rest of his family was terrorised. The raiding party returned to the compound. The conduct of this home invasion constituted count 2 on the indictment.
Just after 6.00 pm on 1 July 2010, Tamapua, Vergara, Thomas Byquar and two others gathered at the shop. At the request of the applicant, Byquar contacted his cousin, Tomasi Natuba, by telephone and persuaded him to join the United Brothers or United Brotherhood. Natuba travelled to the Chester Hill Hotel which was near the shop to meet Tamapua, Karimi, Byquar and others. The conduct of the applicant in causing the recruitment of Natuba to carry out criminal activity constituted count 4 on the indictment.
By around 9.45 pm this group had left the Chester Hill Hotel and returned to the shop to meet the applicant and others. The Crown contended that two home invasions were discussed and approved by the applicant at this time. According to the Crown, one of the raids was suggested by Karimi, namely the “Jacob Job”, being a reference to Jacob Burgess who lived with other members of his family, including his brother Kesley Burgess, at Lurnea. In addition, Tamapua suggested an attack on a drug dealer known as “Beanie Boy” at Warwick Farm. The Crown contended that the applicant approved both raids and decided that the new recruits, being Natuba, Byquar, as well as Mahdi Mir and a 17-year-old male (“MA”) would travel with Tamapua and Karimi and then enter the targeted homes.
At around 10.27 pm on 1 July 2010, the Tarago left the shop. It was driven by Ramos with Tamapua, Karimi, Natuba, MA and Byquar seated inside (No (11) at [91]). Ramos drove to Warwick Farm where Tamapua pointed out what he believed was the residence of “Beanie Boy”. Byquar, Mir, Natuba and MA left the van, each armed with a meat cleaver. In fact, the residence was not that of “Beanie Boy” but of Maxine Rogers and her two young daughters. The assailants terrorised Ms Rogers by holding a meat cleaver to her throat and stole a computer. At some point they realised their mistake and returned to the Tarago. The applicant’s conduct in directing this raid constituted count 5 on the indictment.
According to the Crown, Karimi told the group they had to travel to Merrylands, or more precisely Wallace Street Granville, to collect his cousin whom he said knew the address for the “Jacob Job”. The Tarago stopped near Wallace Street. Karimi and Tamapua alighted and entered a white two door Toyota Echo (the “white Toyota”) which had parked nearby and was driven by Karimi’s cousin, Abdul Wahid Karimi. At about 11.11 pm, the two vehicles pulled into a service station at Merrylands and Karimi organised for the Tarago to follow the white Toyota. The vehicles arrived at Lurnea at around 11.36 pm. A security camera from a home near to the address of the “Jacob Job” recorded the arrival of the two cars.
Karimi spoke to the four assailants in the Tarago, that is Byquar, Mir, Natuba and MA. He told them what house to enter, that they should grab drugs and money and warned that there may be a shotgun in the premises. The mayhem that ensued is described in the judgment of Bathurst CJ. It suffices to state that Jacob Burgess had left the home before the invasion but his brother, Kesley, was hacked to death with meat cleavers in front of his mother, Tracey Burgess, and his girlfriend. Both Natuba and Byquar were injured in the attack. Tracey Burgess’ handbag was stolen. The conduct of the applicant in procuring the home invasion that led to the murder of Kesley Burgess and the armed robbery of Tracey Burgess constituted counts 6 and 8 on the indictment. The applicant was said to be criminally responsible for the murder of Kesley Burgess by the operation of the doctrine of extended joint criminal enterprise.
The two vehicles returned to the shop. According to the Crown there was a discussion about arranging for Natuba to attend Bankstown Hospital and provide a false story about how he was injured, as well as further raids. As events transpired the police attended at Bankstown Hospital at the same time for an unrelated reason but spoke to Natuba about his injuries. Natuba provided a false account. He was interviewed again at around 4.00 pm on 2 July 2020 and co-operated with the police. As a result, the police commenced surveillance on the applicant, Tamapua and others.
On the evening of 3 July 2010, Byquar and another recent recruit, John Unasa, attended a cultural event at the Michael Wenden Aquatic Centre at Miller. Some form of confrontation occurred which appeared to involve a rival group waiting outside the centre with the intention of harming Unasa when he left. Byquar was intercepted by police making a series of calls to request that the various members of the United Brotherhood assemble with weapons (“knives, guns or anything”) (No (11) at [146]). Just after midnight, Byquar spoke to the applicant and told him “I’m ready to fucking kill these cunts, bro”. The applicant responded “Yeah, all right, no worries. That’s all good” (No (11) at [153]). [1] At around 1.15 am, police stopped a vehicle in Miller carrying Tuki, Tamapua, Karimi and Vergara. Located in the vehicle was a machete in a sheath, a knife and a shortened .22 calibre rifle. James Stiff’s DNA profile was found on the machete and the applicant’s DNA was found on the rifle (No (11) at [160]). About ten minutes later, the applicant and Byquar spoke on the telephone querying the whereabouts of the would‑be raiders. The conduct of the applicant in joining in an agreement to murder a member of the rival group that had threatened Unasa was the basis of the conspiracy to murder that was count 9 on the indictment. This incident was generally referred to as the “Miller pool incident”.
1. AB 1187; Ex DA, 4 July 2010 00:11:25 at p 3.

Defence Case

As noted by Bathurst CJ,[2] the applicant gave evidence at the trial denying any involvement in the incidents the subject of the charges. The jury clearly rejected that account comprehensively. The rejection of his evidence does not bolster the Crown case. Equally, giving proper allowance for the jury’s advantage in having heard and seen his evidence means that it plays no part in any assessment of the attack on his conviction on counts 6 and 8.
2. See at [600].

The Trial and the Conviction on Counts 6 and 8

The applicant stood trial along with Karimi and Mir. Like the applicant, both Karimi and Mir were found guilty on all counts that concerned them, including the murder of Kesley Burgess. Each of Tamapua, Natuba and Bautista gave evidence for the Crown. The Crown also called Tamapua’s partner, Witness A and Shane “Toby” Kraak. Kraak was a housemate of Tamapua and Witness A. Kraak gave evidence after receiving a substantial discount on his sentences for unrelated armed robbery offences.
Although the charges concern a veritable crime spree, as noted by Bathurst CJ the issue raised by the appeal is a relatively narrow one. The applicant asserts that the jury could not (properly) be satisfied beyond reasonable doubt that he was a party to any agreement to conduct a home invasion at the residence of Kesley Burgess and Tracey Burgess and therefore he was not party to the joint criminal enterprise that was essential to the Crown case on counts 6 and 8.
The Crown case was that the applicant participated in that agreement by his giving approval for the two home invasions, one being the “Jacob Job” that Karimi suggested, and the other being the attack on the home of “Beanie Boy” said to have been suggested by Tamapua. This approval was said to have been given at the meeting at the shop on the evening of 1 July 2010 after the gathering at the Chester Hill Hotel. Tamapua gave evidence to this effect. [3] Natuba, who only just joined the group, stated that he could not recall the applicant taking part in the discussions but did recall him distributing knives to the assailants. [4] Bautista recalled the applicant talking during the meeting. [5]
3. See [193] to [194].
4. See [98].
5. See [42].
Witness A was also present at the shop on the evening of 1 July 2010 when the assailants gathered in the presence of the applicant. Her evidence is described by Bathurst CJ. [6] Relevantly, Witness A said that Tamapua “was talking about doing a house in Warwick Farm and Scheck [Karimi] was talking about a house in Lurnea”, that Karimi mentioned the presence of “coke, ice and 15 grand” and that “Bishop” (ie, the applicant) said “[h]e needs the money”. [7]
6. See [278] to [336].
7. See [289]; T 2255-6.
Kraak was also present at the shop at this time. His evidence is summarised by Bathurst CJ. [8] Relevantly, he said that “Bishop [ie, the applicant] and Tera [ie, Tamapua] were organising who was to go and do the actual jobs along with Scheck [ie, Karimi]” [9] and that it was Karimi who suggested the “Jacob Job” (“[a]ll I remember Scheck saying was, ‘I have another address to do’” [10] ).
8. See [337] to [388].
9. T 2542.
10. T 2547.25

The written and oral submissions made on behalf of the applicant pointed to numerous credibility issues affecting all these witnesses. These are reflected in Bathurst CJ’s review and analysis of their evidence. Allowing for those matters and leaving aside Natuba’s evidence, there was an overall consistency in their versions about who was in charge, who suggested the various jobs and that the applicant approved them.
In any event, any reasonable doubt that might attend a conviction which simply rested on the oral evidence given by these witnesses of or concerning the meeting at the shop dissipates when their evidence is considered in light of all the evidence and the logic of events. The Crown pointed to evidence adduced from a number of the above witnesses to the effect that it was the applicant who was the directing mind of the gang, that Karimi took direction from him and the applicant either directed or at least approved of the carrying out of all the various crimes committed in the relevant period and who would undertake them. [11] This evidence was supported by the telephone intercepts that were obtained after Natuba began to co-operate with police. They included a conversation on the evening of 2 July 2010 in which Tamapua deferred to the applicant. [12] Otherwise, the telephone intercepts referable to the Miller pool incident reveal a modus operandi consistent with the Crown case on counts 6 and count 8 namely the applicant organising the raiding party and despatching them from premises he controlled but not accompanying them.
11. See [45] to [46] - Bautista; [170] -Tamapua; [344] to [345], [355] – Kraak; [390ff] – Unasa.
12. AB [1092].
The Crown also pointed to evidence from Jacob Burgess that he had few dealings with Tamapua. [13] This suggested that it was inherently unlikely that Tamapua suggested the “Jacob Job”.
13. See [404] – Jacob Burgess; [206], [247] – Tamapua; [376] – Kraak.
One matter pointed to by both parties concerns the journey taken by the Tarago on the evening of 1 July 2010. It departed from the shop at Chester Hill just before 10.30 pm and travelled south west to Warwick Farm. It then travelled north east to Granville and Merrylands to meet Karimi’s cousin. In company with the white Toyota, it travelled south west again past Warwick Farm to the Burgess house in Lurnea. In oral submissions, Senior Counsel for the applicant, Mr Game SC, submitted that it “beggars belief” that if the Lurnea location for the “Jacob Job” had been mentioned at the shop that the Tarago would have driven to Warwick Farm then to Granville and then back past Warwick Farm to Lurnea. [14] I disagree. The meeting point at Granville may have been a place well known to Karimi and his cousin. It seems that Karimi wanted his cousin present to identify the precise location of the “Jacob Job” in Lurnea.
14. Appeal T 27/05/2020 at p 14.41.
Further, the journey taken by the Tarago should be considered in conjunction with the chronology in Annexure B. The chronology reveals a telephone conversation between Karimi and one of his cousins, Mahdi Karimi, at 10.39 pm that lasted 89 seconds, a conversation between Karimi and another cousin, Abdul Wahid Karimi, at 10.41 pm that lasted 19 seconds and a further conversation between those two at 11.08 pm that lasted 6 seconds at or just prior to the arrival of the Tarago at the petrol station on Woodville Road. Thereafter, Tamapua attempted to contact “Beanie Boy” while the convoy was proceeding to the Burgess home at Lurnea.
The applicant’s submissions contended that, inter alia, the evidence raised a reasonable possibility that the attack on the Burgess home was carried out at the instigation of Tamapua and Karimi without the knowledge or approval of the applicant. In particular, the applicant contended that it was only after the attempt to locate “Beanie Boy” failed that attention turned to an attack on the Burgess home. [15] The submissions pointed to the telephone conversation at 11.08 pm between Karimi and his cousin. The submissions contended that it was open to conclude that the driver of the white Toyota was a relative of Karimi who directed the group to the Burgess home. [16]
15. AWS at [167].
16. AWS at [174].
The principal difficulty with this submission is that it overlooks the telephone contact between Karimi and his cousin that took place prior to the attack at Warwick Farm and the brevity of the telephone contact that occurred between them through the night. It can be accepted that the Tarago met the white Toyota at Granville for the purpose of Karimi’s cousin taking them to the Burgess home. However, that is suggestive of Tamapua not knowing where the Burgess home was, which in turn means it was less likely he suggested the “Jacob Job” in the first place. The telephone call between Karimi and his cousin at 11.08 pm lasted for only six seconds and was consistent with Tamapua’s evidence that, as they met up with Karimi’s cousin, Karimi was at the same time talking to him on the phone. The absence of any call between Karimi and his cousin between 10.45 and 11.08 pm suggests that the proposal to meet at Granville to travel to Lurnea had been agreed upon prior to the Warwick Farm home invasion going wrong. This evidence rebuts any suggestion that the plan to attack the Burgess home in Lurnea was only formulated after the attack on “Beanie Boy” failed. The fact that Tamapua was still attempting to contact “Beanie Boy” while the Tarago travelled to Lurnea, is consistent with the idea of attacking him being Tamapua’s suggestion. The telephone contact between Karimi and his cousin is very much consistent with the “Jacob Job” not being Tamapua’s suggestion. Given the evidence that Karimi acted under the direction of the applicant it follows that this evidence points strongly in favour of the Crown case that the applicant approved the attack. When that is combined with the oral evidence, proof beyond reasonable doubt was established.

Conclusion

Having considered the evidence of Tamapua, Natuba, Bautista, Witness A and Kraak in the context of all the other evidence and the chronology of events, I reach the same conclusion as Bathurst CJ (at [627]). I agree with the orders that his Honour proposes.

**********

Khoury v R Annexure A (80078, pdf)

Khoury v R Annexure B (88283, pdf)

Endnotes

Decision last updated: 10 February 2021

Medium Neutral Citation:	Khoury v R [2021] NSWCCA 3
Hearing dates:	27 May 2020
Decision date:	03 February 2021
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [629]; Beech-Jones J at [630]
Decision:	(1) Extend the time for the applicant to file a notice of appeal up to 12 November 2019. (2) Grant the applicant leave to appeal. (3) Appeal dismissed.
Catchwords:	CRIME – appeals – appeal against conviction – unreasonable verdict – murder during home invasion – extended joint criminal enterprise – whether there was insufficient evidence to establish participation in agreement to do home invasion with the foresight of the deliberate infliction of grievous bodily harm
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 Pell v The Queen [2020] HCA 12; 94 ALJR 394 R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Texts Cited:	Nil
Category:	Principal judgment
Parties:	John Khoury (Applicant) The Crown (Respondent)
Representation:	Counsel: T Game SC with D Barrow (Applicant) G A Newton (Respondent) Solicitors: Oxford Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/323677
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2013] NSWSC 1761 Date of Decision: 20 June 2013, 29 November 2013 Before: Johnson J File Number(s): 2010/323677