R v Imadonmwonyi

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1420 of 2003

THE QUEEN

CHARLES IMADONMWONYI

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-7, 10-12, 14, 17-20, 24-28, 31 May, 1 June 2004
DATE OF RULINGS:	4, 27 May 2004
DATE OF REASONS:	19 October 2004
CASE MAY BE CITED AS:	R v Charles Imadonmwonyi
MEDIUM NEUTRAL CITATION:	[2004] VSC 361

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Criminal Law – Rulings – Murder and other charges – Application to have judicial discretion used to exclude a videotape of the accused using urine to remove blood from his face and hands – Application to preclude prosecution leaving to the jury the disposal of a knife as post-offence conduct – Assessment of sufficiency of evidence of self-defence to warrant it being left to the jury

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gamble	Office of Public Prosecutions
For the Accused	Ms C. Randazzo S.C.	Victoria Legal Aid

HIS HONOUR:

These are my reasons for three rulings given before or during the trial for murder and other offences of Charles Imadonmwonyi (“the accused”). Arising out of events which occurred on the roadway of Holland Court in Flemington shortly before midnight on 6 January 2002, the accused was charged with the murder of Hakan Ulu and with having intentionally, and in the alternative, recklessly, caused serious injury to Erhan Ulu. Hakan Ulu died of stab wounds. Erhan Ulu was seriously injured from stab wounds.

Before the trial commenced, an application was made by Ms Randazzo of Senior Counsel who appeared for the accused to have me exercise my discretion to exclude a videotape which showed certain behaviour of the accused at the offices of the Homicide Squad around 7 a.m. on 7 January 2002. That behaviour included his urinating into the paper coverall that he was wearing, and onto the floor, and then using the urine to cleanse his face and hands of blood. Ms Randazzo argued that the tape was improperly and unfairly obtained, that not to exclude it would be unfair to the accused, that what it showed was irrelevant, alternatively, that the probative value of showing the tape was outweighed by its prejudicial effect. I declined to rule that the videotape was inadmissible.

Before the trial commenced and again at the end of the evidence, Ms Randazzo applied to me to rule that there was not sufficient evidence to warrant the prosecution being permitted to submit to the jury that certain “post-offence” conduct should be used as evidence of guilt. I ruled that there was. At the end of the evidence, Ms Randazzo applied to me to rule that there was sufficient evidence to warrant my instructing the jury as to self-defence. I ruled that there was not.

The trial was a relatively long one for a number of reasons. One reason was that there were several witnesses to events that formed part of a pursuit of the accused after the stabbing of Hakan Ulu and Erhan Ulu in Holland Court, Flemington. That pursuit started in Holland Court and continued into Racecourse Road. A further reason arose from the need to call many police witnesses as to conduct of the accused after the pursuit. I have annexed as Appendix A to these reasons, the summary that I prepared for the jury of the evidence of the 50 witnesses who gave oral testimony.

I turn to the factual background to the challenge to the videotape. After the pursuit of the accused into Racecourse Road, the accused called the police from a telephone at a 7/11 store. He claimed that he had been attacked. The accused told the first police members who spoke to him at the 7/11 store that he had been the victim of an attack. After discussions between a number of police members, the accused was cautioned and told his rights. The accused kept complaining that he was the victim, not the attacker. He was taken from the 7/11 store to the Flemington police station. There he was spoken to by a Sergeant Strating. Strating commenced by saying: “Taped record of interview.” He further cautioned the accused and told him his rights. The accused complained of internal injuries. He was taken to hospital. He was examined by a doctor. No injuries were found. The accused was taken back to the Flemington Police Station. He was taken to the offices of the Homicide Squad around 5.40 a.m. At 6.28 a.m., the accused was spoken to by Detectives Seel and Masters. Early on, Detective Seel said: “This is a tape recorded interview.” His actions in part of the period that followed were videotaped. It was to be the first of three video-tapings. The view of the interview room shown in the videotapes is one very familiar to judges presiding over criminal trials in this court. It shows three walls, a door in the wall furthest from the camera, a desk in the middle ground, a microphone attached to one wall, a chair for the suspect beyond the desk, two chairs for the police in the foreground, and a carpeted floor.

There was uncontradicted evidence as to the conduct of the accused in the Homicide Squad offices. It was that, at some times, the accused exhibited aggression. At other times, the accused ignored altogether what was said to him. During the first videotaping, the police asked questions as to whether he would consent to the taking of body samples. The accused chose not to answer those questions. The accused was then told that an order would be sought from the Court. Shortly after that, the accused asked to be taken to the toilet. As to the events that between the time that that request was made, and the time of the end of the videotaping, I saw the videotape and I heard evidence from Detectives Sear and Masters. Seel and Masters went with him to the toilet. The accused said that he wanted to wash his hands before urinating. Seel told him he could not wash his hands, because of the need to first take swabs. The accused became angry and verbally aggressive. He said that it was part of his religion that he had to wash his hands. Seel repeated that the accused could not wash his hands. The accused said he would not proceed. He was taken back to the interview room. The accused again asked to go to the toilet. He was escorted there again. Seel said again that he could not wash his hands. He was again aggressive. He shaped as if to fight. He was taken back to the interview room. He said that he would urinate on the floor. Seel said that he would be charged if he did. It is shortly before this time that the policeman operating the video-camera decided to restart it.

In the video, the accused can be seen to look around for a time. He then turns his attention to his clothes in the area of his genitals. When he is later medically examined on video, it is apparent that he has on only underpants under a blue one-piece coverall garment. It appears from what is shown on the videotape that he uses his hands to adjust his clothes, that he urinates without removing the coverall, that he then rubs his hands on the wet carpet, that he then rubs a hand across his face, including treating the glass wall as a mirror to rub his face further.

The video was turned off. It was turned on again some time later. The later videotaping shows the accused being medically examined. A number of steps were taken in between. They included that Detective Seel called in a medical practitioner, Dr Barkley, to examine the accused. Dr Barkley sought to explain to the accused who he was and what his role was. The accused was verbally aggressive and refused to permit any examination. Dr Barkley left, but first told Detective Seel to get in an independent person, which was done. An order was obtained for a body sample to be taken from the accused. That was done, albeit with the accused having to be subdued by several detectives. That process was also videotaped.

Before turning to the submissions of Ms Randazzo, it is necessary to outline matters relating to the mental illness of the accused. Indeed, the position as to the videotape has to seen in the setting of evidence which potentially was to be given to the jury by two psychiatrists, Drs Walton and Triglia. As it transpired, while I heard testimony from both before the jury was empanelled, only Dr Triglia gave evidence at the trial. Before the jury was empanelled, both psychiatrists were asked questions relevant to the accused’s fitness to stand trial and to the issue of his mental impairment. Both had for a period treated the accused. Both had noted problems in obtaining a satisfactory history. Both noted in their reports that the accused spoke of not being able to remember the events of 6 January 2002. Both accepted that the accused suffered from schizophrenia, with paranoid delusions, and that he was relatively lacking insight into his illness. Dr Triglia had reported in September 2003 that the accused was not then fit to stand trial. In May 2004, both psychiatrists expressed the opinion that the accused was then fit to stand trial.

Ms Randazzo submitted to me that I should exercise my judicial discretion to direct that the videotape not be admitted into evidence. The relevant principles are set out in The Queen v Swaffield, Pavic v the Queen (1997-8) 192 CLR 159 in what follows this preliminary statement at 189 [52]:

“The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence…. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value.”

As to the probative/prejudicial discretion, I would also note what was said by McHugh J in Festa v The Queen (2001) ALJR 291 at 300 [51]:

“But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."

Ms Randazzo argued that the detectives breached proper procedures in not re-cautioning the accused before re-activating the video-camera. The Police Manual does contain a provision requiring police to re-caution after any break in an interview. However, the time at which the camera was operated was not a break in an interview. Further, the accused had already been given several cautions. Further, there was no evidence before me from the accused to the effect that any further caution would have made any difference.

Ms Randazzo argued that there was unfairness to the accused in not warning him that his actions in the interview room might be captured on a video-camera. I do not accept that there was any unfairness. The accused had twice previously been told of the use of taping, albeit not videotaping. There had been no trickery in staging a situation where the accused could have been expected to act inappropriately.

Ms Randazzo argued that there was unfairness in that the police had not called in earlier a Forensic Medical Officer and independent third person. I have had regard to the provisions of the Victorian Police Manual as to how police are expected to deal with mentally ill persons. Indicators of a mental illness are provided as a basis for calling in a CAT team. Those indicators include that the person is behaving in a bizarre or unusual way. There are provisions as to when the attendance of a Forensic Medical Officer should be requested. I am unable to see that they apply. With the benefit of hindsight, it is clear enough that the aggressiveness of the accused was linked to his paranoid schizophrenia. I am unable to accept that the police who dealt with him at the time could have been expected to make an assessment that his behaviour was attributable to mental illness, and that a doctor and independent person should have been called in earlier.

Ms Randazzo argued that the evidence of the accused’s behaviour had no or little probative value, but a significant potential for prejudice, given that the accused was shown urinating, which could be treated as a piece of unsavoury conduct. In assessing probative value, I had to have regard to the issues as spelt out in the final Directions Hearing documents and discussion. At that time, Ms Randazzo had made it clear first that the prosecution was required to prove that the accused stabbed the two victims, and that there was an issue as to whether the accused was statutorily mentally impaired, and that there was no issue as to self-defence. Mr Gamble sought to have the videotape admitted into evidence as to two issues: as an item of “post-offence” conduct that could be treated as an attempt to destroy evidence of the accused being the person who stabbed the deceased, that evidence being the blood of the deceased on the face and hands of the accused; and as to mental impairment, in that the behaviour of the accused as shown in the videotape bore on the issue of whether the criteria under S. 20 of the Crime (Mental Impairment and Unfitness to be Tried) Act 1997 were met. Ms Randazzo argued that the videotaped behaviour had no probative value as post-offence conduct because there were clearly two plausible “innocent explanations” in that the accused acted as he did, not because of any plan to destroy evidence, but because of his mental illness, and because of his religious convictions. She also put that the behaviour was at best a piece of circumstantial evidence, that was far from being a vital link, and that it had no probative value given the “DNA evidence”, which clearly linked the blood of the deceased to the clothes of the accused earlier taken from him.

I am well satisfied that the behaviour shown on the videotape provides evidence of significant probative value as to the two issues of whether the accused stabbed the two victims and whether he was at that time statutorily mentally impaired. Seeing the tape provides a far more reliable assessment to be made of behaviour at the time than that which comes from oral testimony. I have closely watched the tape. The accused takes a series of steps consistent with removing traces of blood. That occurs shortly after he has been told what the purpose of the court order for sampling was to be. It seems clearly to me to be a matter left to the jury to assess how much weight is to be given to the evidence, bearing in mind the alternative explanations for the conduct. On the issue of whether the accused was, at the relevant time, “statutorily mentally impaired”, the video show the accused’s state just a few hours later. There is a slight potential for prejudice in that the accused is shown inferentially urinating. But there was no exposure of his genitals. The jury could be warned by me not to treat the evidence inappropriately and how to treat it appropriately. Although Ms Randazzo indicated that forensic considerations warranted her not wanting it to be done, I indicated that I was prepared to direct excision of the comment suggesting disgust made by Detective Masters, upon his appreciating that the accused had urinated on the carpet.

I turn to the application for me to preclude the prosecution from submitting to the jury that certain “post-offence” conduct, namely as to the accused having disposed of the knife used to stab the two victims, should be used as evidence of guilt. Ms Randazzo submitted that there was a deficiency in the evidence that meant that that matter should not go before the jury. The claimed deficiency was that no knife had been located despite extensive searching. I am unable to accept that because there is evidence that searches failed to find a knife, the existence of evidence of failure should conclude the matter. Erhan Ulu gave evidence of seeing a knife at the time he was stabbed. Several witnesses gave testimony of seeing the accused holding a knife in the pursuit that followed. The evidence as to the terrain, made better understandable by photos and a view, was that it included a creek with wide long grassed banks, many buildings with low roofs, some drains, and an overhead train bridge. Even a comprehensive search could easily have failed to find a knife. In my assessment, the jury could readily have drawn, as a reasonable inference, that the accused had disposed of the knife in a way that meant that it could not be found.

I turn to the issue of whether there was evidence that necessitated my leaving self-defence for the jury. As to the applicable legal principles, I have reviewed again the authorities that I reviewed in Turan [2000] VSC 176. Those cases are: R v Palmer [1971] AC 814, Muratovic [1967] Qd R 15; Pemble v The Queen (1971) 124 CLR 107; R v Lane (1983) 2 VR 449; Collingburn (1985) 18 A Crim R 294; Lawson & Forsythe [1986] VR 515; Van Den Hoek v The Queen (1986) 161 CLR 158; Zecevic v DPP (1987) 162 CLR 645; Shea (1988) 33 A Crim R 394; R v Kear (1997) 2 VR 555; and, Thorpe (1998) 102 A Crim R 278. The rulings are those of Vincent J in R v Williams (8 February 2000), Harper J in R v Curzon (28 April 1999), and Coldrey J in R v Bradley (7 December 1994) and R v Roba (22 February 2000). As I noted in Turan, most of those cases and rulings were concerned with self-defence, but Van den Hoek, Shea and Thorpe were concerned with the issue of provocation, and while there are necessarily different aspects of the evidence that must be focused on relative to provocation and self-defence, the nature of the exercise from the perspective of the trial judge is substantially the same. To those cases and rulings, I would add R v Lane [1983] 2 VR 449, Masciantonio v The Queen (1995) 183 CLR 58, and Yasso [2004] VSCA 127, and the rulings of Coldrey J in R v McLachlan [2000]VSC 522 and of Cummins J in R v Debs and Roberts [2002] VSC 569.

There is more than one kind of benefit derived from such a review of the cases. One is reminded of the applicable principles. One is also able, in a case which depends upon a consideration of the sufficiency of evidence, to make a helpful if broad comparison of how the principles have been applied in other circumstances. The assessment of the forensic value of evidence is a subject upon which, in borderline cases, even very experienced judges can differ. As to that, Kear is a good example.

In the cases there are a number of statements as to the criteria to be applied in making the assessment of the forensic value of the evidence. In Muratovic, Gibbs J said at 20: “…the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any question of fact, provided…that there is evidence upon which a reasonable jury could decide the issue favourably to the accused.” That was cited approvingly in Zecevic at 665. Having noted the evidence reviewed in Muratovic, that evidence scarcely seemed to me to be capable of being characterised as anything like weak and tenuous.

In Kear, Tadgell JA at 557, endorsed this proposition stated in Lane: “…before it can be said that the issue of self-defence arises, there must be evidence before the jury which would enable a reasonable jury to form a logical conclusion, by legitimate logical reasoning and not illegitimate speculation…” In Kear, Ormiston JA stressed that a trial judge is not absolved from leaving an issue of self-defence to go to the jury notwithstanding that the accused failed to claim that he acted in self-defence or that counsel for the accused failed to raise the issue. At 566, Ormiston JA addressed the troubling question of how to address “a version based essentially on speculation” and expressed a concern that there might be inconsistency “with accepted principles as to the need to charge juries on facts and circumstances which might lead a jury to have reasonable doubt as to an accused’s guilt”. He went to state that the issue of self-defence may be held to arise if there was any evidence from which the jury might infer that the applicant acted in self-defence (my emphasis). He added that, in order to see if there is any such evidence, one may look not only to the direct evidence but also to whether a circumstantial case may fairly be made out to support the claimed defence. That is the approach that I consider that I am bound to adopt. However, I would refer to some other judicial observations that I have had regard to.

In his ruling as to the sufficiency of evidence as to self-defence in Williams Vincent J said, at [16], later adopted by Coldrey J in Roba at [14]:

“The instructions given by a trial Judge to the jury must be directed to the issues of fact and law that can be identified as having been raised by the evidence adduced in the trial. They are neither meaningful nor useful in the absence of an appropriate evidentiary framework which justifies the putting of the issues before the jury in the first place and gives rise to a duty to instruct them (inter alia) as to the principles of law relevant to the jury consideration of those issues and an obligation to relate the principles to the evidence. Where no appropriate evidentiary framework exists to which the instructions can be attached, the provision of broad statements, and the intrusion of what are in terms of the evidence irrelevant principles of law are, at best, time wasting and unnecessary and, at worst, a virtual invitation to the jury to engage in illegitimate speculation.”

In the provocation context case of Yasso [2004] VSCA 127 Vincent JA at [55] said: “…the judge is, of course, required to put before the jury any defence that may be available to an accused on the view of the evidence most favourable to him…” He went on to say: “…it is not required that the judge instruct the jury with respect to every possibility, however remote, from ordinary human experience or community standards it may be. Many theoretical possibilities and arguments are considered and discarded by the judge and counsel alike in the day to day conduct of criminal trials.”

There is yet another perspective as to the approach to the assessment of the sufficiency of evidence to be found in the cases as to whether criminal proceedings should be stayed as an abuse of process by reason of an insufficiency of evidence. In R v Smith [1995] 1 VR 10 at 15, Brooking J noted as applicable in criminal proceedings, what was said, as to civil proceedings, in Walton v Gardiner (1993) 177 CLR 378 by Mason CJ, Deane and Dawson JJ at 393 that "proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail". Such a test applied by analogy in the context of self-defence would lead to the positing of the question: Is the evidence such that self-defence can clearly be seen to be foredoomed to fail?

Ms Randazzo put to me that self-defence was open on the evidence. She took me to various parts of the evidence. They included: the evidence of Erhan Ulu including as to Hakan Ulu having pushed the accused; the evidence of Sonia Sheikh including as to the time between looking out her window and looking out from her balcony, that showed that there was the opportunity for the stabbing; the 000 call, and what the witness Ajaz-ur said as to it; the evidence of the witness Du Yongqi which could form the basis for inferring that a number of people had been engaged in some form of aggressive or loud arguing; the evidence of the witness Umit Ertarla, as to his having taken up a clublock; the evidence of Sergeant Strating and the other police officers to whom the accused said that he had been attacked; the evidence of the forensic pathologist, Dr Lynch, that he could not exclude the possibility that each of the injuries were sustained during the course of a struggle between the victim and the assailant; the evidence of the various articles and items located over the roadway are consistent with movement over a vast area of the roadway; and, the evidence of Dr Maria Triglia to the effect that the accused maintained that he had gone to make a phone call, that he was assaulted, and felt very frightened.

I have set out in the appendices to this ruling what I believe to be most of the significant parts of the evidence warranting review. In Appendix A, I have set out my summary of the evidence of the 50 witnesses. Ultimately, I chose not to read all of the summary to the jury, giving the jury the option of having it read and of providing transcript instead. I have highlighted with bold and underlining some of the areas more obviously having a potential to be drawn on in assessing the sufficiency of a basis for self-defence. I have highlighted with italics and underlining some of the areas of puttage to which I will later refer. In Appendix B, I have set out parts of the transcript which I have subjected to closer scrutiny. That includes, as is appropriate, some areas that go beyond the matters put to me expressly by Ms Randazzo.

There are some complicating factors. One complicating factor arises because of the pursuit that followed the stabbing. The stabbing occurred in a relatively short time and in a relatively small area. The pursuit continued for much longer and over a much wider terrain. During the pursuit, the accused was threatened verbally and physically. He was assaulted with a club-lock. He had real occasion to be fearful for his life. What the accused believed and later said as to the earlier events have to be distinguished from what he believed and later said as to the later events.

Another complicating factor is the paranoid schizophrenia of the accused. It adds complications in more than one way. It had the potential to affect how other evidence might be viewed by a jury. The mental illness of the accused was directly relevant to the statutory mental impairment issue. It had the potential to have an impact on other issues. The mental impairment issue was, on any view, a difficult one. Dr Triglia supported it. There was no contrary psychiatric opinion. That defence was forensically weakened by the primary position of the accused that he had not stabbed the Ulu brothers. How much less tenable would it have been if it had been put to the jury that he did not stab them, that if he did stab them, he did so in self-defence, and that if he did not act in self-defence, he was mentally impaired. In another way the mental illness had to be a consideration affecting the matter of whether the accused could be seen to have had a belief on reasonable grounds that it was necessary to do what he did in self-defence. Given the paranoia ingredient of the mental illness, the accused might well have been seen to be perhaps far more sensitive than normal to a possible slight or insult or threat, perhaps less reliable in claims of having been slighted or insulted or threatened or attacked. From a practical view, the mental illness had to be seen as a factor affecting the conduct of the trial. Given the increased prospect of the accused dispensing with counsel, counsel had to be permitted to engage in questioning in areas of borderline relevance.

Following through on the last mentioned matter, the third complicating factor was generally as to the pre-trial and trial processes. In mid 2003, the accused sacked his then counsel, who was much experienced in this court. For a time, the accused was unrepresented. His conduct in court when unrepresented was troubling to say the least. He was assessed as unfit to stand trial. Only after some months on medication was he reassessed as being fit to stand trial. His conduct at the trial was exemplary. However, it was my perception that allowance had properly to be made by me for his counsel pressing matters that would ordinarily not be pressed, lest her failure to do so be perceived wrongly. In the final directions particulars filed with the court before the Final Directions Hearing, the issue of self-defence was raised. At the Final Directions Hearing, I was informed by Ms Randazzo that the issue of self-defence would not be pressed. In her response to the opening of Mr Gamble, Ms Randazzo did not raise the issue of self-defence. I was nonetheless conscious that her cross-examination of various witnesses was, or appeared at times to be, directed to the issue.

I turn to the assessment of the evidence in this case. Clearly, there is some evidence which could form a basis to frame inferential conclusions that could in turn be used to frame a broad hypothesis or scenario along these lines: the accused had been troubled by the loud revving of a car; he had approached the Ulus; he had been pushed by Hakan Ulu; he perceived that push as an assault; there had been yelling and a struggle; he had been held against the front side of a car; a call had been made for him to be run over; he felt very frightened; he feared for his life; he took out a knife; he believed it was necessary to use the knife; and, he used it in self-defence.

I am well satisfied that there was not sufficient evidence to warrant my putting that or any like hypothesis before the jury as a basis for self-defence. To adapt the Smith test: I was well satisfied that self-defence put on such a hypothesis was foredoomed to fail. More appropriately, to apply the test as per Kear and Zecevic, I was well satisfied that there was not evidence, direct or circumstantial, from which the jury might infer that the accused acted in self-defence.

The insufficiency of the evidence is the more apparent when one takes into account the combination of countervailing considerations.

1At no stage was there any express claim by the accused that he was acting in self-defence. Taken alone, it is clear that that is a matter of no great moment. In this case, it is not to be taken alone.
2The primary position of the accused was that he did nothing hostile to the victims. In that respect this case is close to Kear. Indeed, it is so close that if one applied the reasoning of Tadgell JA, that would suffice to warrant not putting self-defence to the jury. But I am following the lead set by Ormiston and Phillips JJA in Kear.
3The evidence of the pursuit meant that certain claims of the accused, and certain evidence of witnesses in Holland Court could not reasonably be used as a basis for inferring that they related to the stabbing, rather than the pursuit.
4Although some witnesses referred to variously a fight, a rumble, a struggle, a wrestle, there was no evidence other than of a push, suggestive of any attack or threat of attack by Hakan Ulu.
5There was no direct, or inferentially based, evidence of any weapon having been used by either of the stabbing victims. There was evidence of the accused being struck by a clublock. However, the only evidence of such a strike was that it occurred in the course of the pursuit. Hence it would only be conjecture to link that to the stabbing.
6If the accused suffered any injury, it was minimal. His claims were as to injuries in diverse locations. The observations of others scarcely supported most of those claims. I make allowance for a need to treat the evidence of the accused’s paranoid schizophrenia as relevant here. What the accused claimed might not be viewed as deliberate lies, but as manifestation of his illness.
7There were no injuries to the hands of the deceased consistent with an attack on him by the deceased. The nature of the injuries sustained by the two victims was indicative of a disproportionately strong attack. The victim’s injuries were of a stabbing type. There were several of them. As to Hakan Ulu, they were to vital locations.
8Unlike in several other borderline cases, there was here no evidence of past animosity between the accused and the Ulu brothers. There was no evidence to suggest that the deceased had any capacity for violence.
9Unlike in Zecevic and Kear, the accused did not give evidence. That is not a consideration to be used against him in weighing the forensic strength of the prosecution case. But where an accused has given evidence, there is more likely to be a stronger foundation set for the drawing of inferences.
10The inadequacy of the evidence as to self-defence can also be viewed from a different perspective, namely that of the “puttage” in cross-examination. I have highlighted the puttage through the use of italics in my summary of the evidence in Appendix A. If there had been a realistic hypothesis as to self-defence, it might have been expected, as to questions put to witnesses, first to have been put consistently in substantially the same way and secondly to have received a more positive response than it did. The unreality of an alternative scenario is apparent when one has regard to the DNA evidence of the blood of the deceased on the clothes of the accused and on the roadway in Holland Court, which is consistent with the thrust of the evidence of Erhan Ulu and those who came upon the accused and the Ulus.

Appendix A

1 Erhan Ulu said that, in January 2002, he lived, in a flat in Racecourse Road adjacent to Holland Court with his parents and older brother Hakan. On 5 January, he had lent to Hakan his Holden which had a modified exhaust. He went with friends to the beach. The group went back to Holland Court. Neither he nor any of the others had been drinking alcohol. When he was in the car park next to block 59, he received a call on his mobile from Hakan. Hakan said the car was running badly. When Erhan said where he was, Hakan said that he would pick him up, and he did. Hakan parked the car on the east side of the road near the entrance to block 12. Both got out. The engine was left running. The bonnet was opened. Hakan stood on the driver’s side where he could use one foot to work the accelerator. Erhan stood on the footpath on the passenger side. Hakan revved the engine to over 4000 revs. He did so 2 or 3 times for from 3 to 5 seconds. Hakan said that the engine stopped shaking when it got to over 4000 revs.

Erhan said that at about that time, he saw and heard a third person. That person came from the western side of the road to the right of Erhan Ulu. The third person was swearing and yelling. He was acting in an angry, arrogant and aggressive way. What he said included that the engine was too loud, and that there were people in the flats. He came up to Hakan, who said: “Take it easy, mate. Relax.” The third person pushed Hakan in the chest with both hands. Hakan pushed him back. The third person then took a knife from his pants pocket and opened it up. It appeared to Erhan Ulu to be like a black Swiss army knife, with other items in the handle. The blade was being capable of being folded in. The blade was about 12 cms long. Using a round house action, the third person stabbed Hakan with the knife with full force in the left neck, penetrating deeply. There were further similar stabs to the neck and chest areas. All this happened in about 10 to 15 seconds.
Hakan called out for help, and to be taken to hospital. Erhan Ulu said that he moved around the back of the car towards the third person. The third person motioned with the knife at him. Erhan Ulu said that he grabbed the third person and they both fell to the ground. He was there aware of being struck in the left hip area. Until later, he had not realised that he had been stabbed. The two men got up. The third person came at him with the knife. He made contact with Erhan Ulu in the area of his left neck, and right hand. Erhan Ulu said that at no time did either he or Hakan hold any weapon. After striking at Erhan, the third person started to run past him and towards the north end of block 12. Erhan Ulu said that he was then aware of his friends being behind him. The white car of Khadir Hablas was on the roadway. The brown car of Umit Ertarla was further north next to the kerb. Hakan went to the white car and got in. The white car left.
Erhan Ulu said that he got into his own car and drove to the Royal Melbourne Hospital. He said that he had not spoken to any of his friends before leaving Holland Court. He realised at the hospital that he had been stabbed in several places. He underwent surgery and remained in hospital for 4 or 5 days. He had been visited in hospital by each of his friends. There had been discussion about the events of the Saturday night. Shown photos, he said that some were of parts of a blue torch that he kept in his car. He believed that, at an early stage, when revving the car, Hakan had used the torch. Erhan said that the phone card and address book shown to him were not his. Erhan described the third person as 30 to 35, tall, (about 190 cms) medium build, African, dark skinned and fit looking. He believed the third person was wearing white runners and a black track suit with stripes over a T shirt. Erhan Ulu said that he and Hakan were both around 170 cms tall.
In cross-examination, Erhan Ulu said that he had not seen a club-lock at any time. He first learned of the use of a club-lock by one of his friends from Detective Seel. He made enquiries and learned that Umit Ertarla had had a club-lock. He denied that there was any dint in the boot of his car. He denied a number of other matters put to him by Ms Randazzo.
They included: * that he had approached the third person on the roadway and abused and pushed the third person, * that he had been joined by his friends in an attack on the third person with a knife, torch and club-lock, * that the third person had been pinned to the front of the white car on the roadway, * that as the car was revved, someone screamed out: “Run him over.” He said that if others of his friends said that the fight between him, Hakan and the third person took place in the middle of the road, they were mistaken.

2 Khadir Hablas said that, on Saturday 5 January 2002, he had been with 5 friends at the beach. They were in Umit Ertala’s brown car and his white car. They went back to Holland Court. There they met up with 2 other friends outside block 59 where he lived. It was planned that they would have a barbeque in a park. They needed first to get some meat at Safeway. He went upstairs to change into a track suit. While changing, he heard what he took to be either or both of the voice of Hakan Ulu and the sound of Erhan Ulu’s car. When he came down, the brown car left, Umit Ertala driving. The passengers in the brown car were Mohamed Hablas and Yucel Tellipinar. He followed, his passengers being Zakaria Hablas, Umit Mercimek and Mousab Wafai.

As he drove south down Holland Court, he saw, near block 12, the brown car on the east side of the road. He believe the occupants had got out by then. He saw on the roadway three people, near the car of Erhan Ulu. Khadir Hablas stopped his car on the roadway north of the car of Erhan Ulu, south of the brown car. Two of the three on the roadway were Hakan Ulu and Erhan Ulu. The third person was tall, solid, had dark skin and short hair. Hakan Ulu was closest to his car. Erhan Ulu was furthest away and the third person was in between.
Khadir Hablas said he saw fighting in the middle of the road. He said that he saw no weapons, no punches thrown, no grabbing, no one going to the ground. He saw that Hakan Ulu was injured. Blood was coming from his neck. He heard Hakan Ulu call: “He got me in the neck.” The third person began to run off, in the direction of the north side of block 12. His brother, Mohamed Hablas started to give chase. Khadir Hablas got out of his car, intending to give chase too. He moved towards the back of his car. He heard someone call out: “He’s got a knife.” He stopped, as did his brother. He went back to near the driver’s seat. Hakan Ulu was then standing a metre or two in front of his car. Hakan Ulu got into his car.
He drove Hakan Ulu to the Royal Melbourne Hospital. There, Hakan Ulu was taken into emergency. Khadir Hablas said that at no time during the events in Holland Court, did he see anyone with a weapon. At the hospital, he assisted the police to prepare a statement over an hour or more. He signed that statement at 2.45 a.m. At the hospital he saw his friends, but spent only a short time in their company
In cross-examination, Khadir Hablas said that he did not see a club-lock at any time. He denied that, at the Royal Melbourne Hospital, or at any time, he and his friends had discussed the use of a club-lock, or agreed not to tell the police about the club-lock. He had referred in his police statement to rumbling. That was a word that he used to describe fighting.

Khadir Hablas denied a number of matters put to him by Ms Randazzo. They included: * that he intended to fight or gang up or attack the third person, * that he or his friends had any weapon, whether knife, club-lock, or torch, * that he had revved his car’s engine loudly, * that his friends had pinned the accused to his car and called on the witness to run him over.

3 Mohamed Hablas was the youngest of the 3 Hablas brothers. He knew the two Ulu brothers and the other friends involved in the events leading to the death of Hakan Ulu. On the night of 5 January 2002, he went to the beach with his brother Khadir and other friends. They went back later to the Holland Court flats, block 59. He went up to get a jacket for the planned barbeque. He got into the back seat of the brown car, behind Yucel Tellipinar. The car was driven by Umit Ertarla.

As the car came close to the last speed hump he saw at much the same time, Erhan’s car and three men. Erhan Ulu’s car was out from the eastern kerb close to the loading bay to block 12. The three men were Hakan Ulu, Erhan Ulu and an African man. The African was tall and well built. The African was facing the two Ulus. He had a knife in his hand. He was attacking Hakan Ulu with the knife. Mohamed Hablas said that he was quickly out of the brown car, even as it was stopping. He saw the knife held by the African go into Hakan Ulu’s neck. He saw Hakan Ulu put his hand to his neck, and that there was bleeding there. He heard Hakan Ulu call out: “The guy got me”. He was aware of the white car passing, but not where it stopped. He said that he had not seen any of the three men go to ground. He got to about 5 metres from the African, when the African started to run towards him. He moved backwards as the African swung at him with the knife in a round arm movement. No contact was made.
The African ran on towards block 120. Mohamed Hablas said that he then chased the African. He was joined by his brother Zakaria Hablas. The African went up the stairs at block 120, through the sliding doors, into the lobby and pressed the lift button. After a couple of seconds, the African came out and down the stairs. Mohamed Hablas said that he and his brother had not gone up the stairs, but waited at the bottom. The African held the knife out and motioned with it from side to side. Zakaria Hablas told the African to put the knife down. The brothers moved back. That confrontation lasted perhaps 5 minutes. During that time, the African said nothing. Then the African ran off towards Racecourse Road. The two brothers chased him.
On Racecourse Road, the African went onto the road. That caused the driver of a Holden Calais, travelling eastwards, also an African male, to stop the car. The first African got into the Calais and called: Drive, Brother, Drive. Zakaria Hablas went to the window of the African driver and told him not to drive off as his passenger had a knife and had just stabbed another man. The African driver pulled the car over towards the kerb, and got out. The first African then got out too. As he did so, he opened up his knife. The knife was a flip-up one, the blade to which fitted in to the handle. The African stood facing the group. The two Hablas brothers had been joined by at least Mousab Wafai. Zakaria Hablas said he was not paying attention to who else was there at that time. The African held the knife out in his right hand towards them.
At this stage, a taxi came slowly by. A passenger in the taxi called out: “Get off the road.” The taxi stopped. Five males got out and walked westwards towards the group including the two Hablas brothers. As the 5 males came west, the African moved east, then south and crossed Racecourse Road. Members of the group with the Hablas brothers spoke to the five males from the taxi. They tried to explain about the stabbing but the other men would not listen. A short time later, a second taxi with more males pulled up and they got out. One member of the five males from the first taxi was tall. He produced a police badge. He said that they were all coppers. He said that the group had 3 minutes to disperse. During this confrontation, the African had moved further west towards the 7/11 store. Mohamed Hablas took a note of the registration number of the taxi to give later to the police. He had later gone to the Royal Melbourne Hospital. There, he had learned of the death of Hakan Ulu. He had not then talked to his friends about the earlier events. He said that at no stage did he see any of his friends that night with a club-lock or any other weapon. He said that he had chased the African so that the African could be detained until the police came.

He denied a number of matters put to him by Ms Randazzo in cross-examination. They included: * that he had joined Hakan and Erhan Ulu in an attack on the African, * that he and his friends had been violent and aggressive towards the African, * that the African had been pinned to the front of the white car, * that he had seen the African trying to get a knife off Hakan Ulu, * that he had lied when he said that he had seen the African with a knife in his hand, * that he had lied when he said that he had seen the African stab Hakan Ulu, * that he had lied when he said that he had seen the African wave a knife at him and his brother, * that he had lied when he said that he had not seen a club-lock that night

4 Zakaria Hablas was the oldest of the 3 Hablas brothers. On the night of 5 January 2002, he joined up with his brothers and their friends. He had been earlier with Mousab Wafai at Highpoint. His brother told him by mobile of the planned barbeque. He met up with his brothers and their friends at block 59. In 2 cars they planned to go to Safeway. He was in the white car heading south in Holland Court. He was seated next to his brother Khadir. The brown car was ahead. He said that he was not really paying attention.

Close to the entrance to block 12, he became aware of a commotion, with some yelling in front of the brown car. He heard someone scream: “I got stabbed.” He saw an African man running. He saw his brother Mohamed chasing the African. Zakaria Hablas got out of the car and went after his brother. The African ran past the north side of block 12. He went to the entrance to block 120, up the stairs and into the lobby. He caught up with Mohamed and the two of them followed the African. Inside the lobby, the African pressed the lift button. He folded out the blade from a knife. He then turned and waved the knife forwards and sideways at the other two. Zakaria Hablas said that he believed that the knife had a wooden handle. He could not estimate the length or width of the blade. The African said: “Back up. Get out of my way.” The two brothers moved back as the African said that. Their moving back enabled the African to get past and run towards Racecourse Road. The two brothers chased the African.
The African tried to stop vehicles travelling east. He gestured with his hands to do so. He was not then holding the knife in his hands. He succeeded in stopping a Holden, near the tram stop on the northern side of Racecourse Road. He went to the passenger side front door and got in. Zakaria Hablas was at the front of the car. He told the driver he would be in trouble if he drove off, as his passenger had just stabbed another man. Zakaria Hablas said that he moved to the window on the passenger side, and continued to shout at the driver. The African was talking as Zakaria Hablas spoke, but Zakaria Hablas could not understand what the African was saying. The African was gesturing at the driver to get moving. The driver got out. The driver went to the front passenger door and opened it. He told the African in the passenger seat to get out. Zakaria Hablas told the driver that he should make sure that the knife was not left in the car. The African then got out. He produced the knife again. He folded out the blade again. The African then held the knife out in front of him. The African said things that included to call the Police. Zakaria Hablas said he told the African to drop the knife, and that the police had been called and were coming. The African lowered the knife and stooped with his right arm extended down as if he were about to drop the knife.
At this stage two taxis came alongside. 3 to 4 men got out of each and came between the African and Zakaria Hablas. One man from the taxis was tall and muscular. The tall man produced a police badge. He stood right in front of Zakaria Hablas, who could smell that the tall man had been drinking. The tall man insisted that those present dispersed. He made threats as to what would happen if they did not do so. Zakaria Hablas said that he tried to explain to the tall man about the stabbing. The tall man seemed unconcerned. While talking to the tall man, Zakaria Hablas saw the African moving away near the bridge over the creek. Shortly after that, Zakaria Hablas heard the police sirens and saw the lights on police cars, and went over to them. When he was close to the African, he had seen blood on the left side of his face. The African often said: “Brother”. Zakaria Hablas said that he had gone to the hospital. He said he had not spoken to the others about the events earlier after being told that Hakan Ulu was dead. He said that he had learned on that night of the use or possible use of a club-lock.
Zakaria Hablas denied a number of matters put to him by Ms Randazzo in cross-examination. They included: * that he had joined with others in an attack on the African, * that the African had in Holland Court been pinned to the front of the white car, * that the African at no stage had a knife in his hands, * that he had not seen the African stab anyone, * that he had seen one of the taxis in Racecourse Road hit with a club-lock by one of his friends, * that he had been part of an assault on the African with a club-lock, * that he had seen the African hit on the thigh with a club-lock.

5 Umit Ertarla said that on the night of 5 January 2002, he was driving his father’s brown Toyota. Shortly before midnight, he was driving the car south in Holland Court. He had in his car Yucel Tellipinar in the front and Mahomed Hablas in the back.

Outside block 12, he saw Hakan Ulu, Erhan Ulu and an African man in what he took to be a fight. He saw that the African had a knife, and was swinging his arm in a round arm way at the Ulu brothers. The Ulu brothers appeared to be trying to avoid the knife. The three men were partly on the road and partly on the footpath. He saw blood on both of the brothers. The African was tall, wore dark pants and a light top. There was blood on the top. The knife was of a type that the blade opens out from the handle. With his hands, he showed its approximate length when opened. The witness said that he stopped his car, out from the kerb. The white car passed him. He reached down to the passenger seat floor. He picked up the club-lock that was kept there. He did so intending to use it to protect himself and his friends. He got out of the car. The African was then running north in Holland Court on the footpath.
He chased after the African to the eastern block of flats. He could not recall where his friends were at this stage. There, the African stopped. The African waved the knife with an outstretched arm at the witness. With the club-lock, the witness struck a blow at the African, hitting the African on the left thigh. The African ran to Racecourse Road, chased by the witness. The African ran onto the roadway. A Calais pulled up. The African spoke to the driver. The African did not get into the Calais. He still had the knife and it was open. At one stage, the African said that if the police were called, he would put the knife down. He moved as if he was going to put the knife down, but did not put it down. The Calais stayed for 20 to 30 seconds, then left. That was as 2 taxis pulled up. Several men got out of the taxis. There was much shouting. The African went behind the men from the taxis. A tall man showed a police badge. The tall man made threats as to what would happen if the men did not disperse. The men from the taxis were told that the African had stabbed others. This confrontation occurred near the Citylink overpass.
The witness said that he walked with Yucel Tellipinar to collect his car. He drove it around the corner into Racecourse Road. The witness said that he rang triple O. He had noted the registration number of the Calais and passed it on to triple O. Marked police cars came.
Umit Ertarla said that he then assisted the police with their enquiries. He went to the Royal Melbourne Hospital and there he spoke with his friends about the events of that night. He had not told the police for inclusion in his first statement that he had hit the African with a club-lock. He said that that was not a deliberate omission. He had had on his mind when making the first statement that Hakan Ulu had just died. After Detective Seel had spoken with him, he made a second statement as to his use of the club-lock
In cross-examination, Umit Ertarla agreed that he had told the police in his first statement that the knife he had seen was huge like a butcher’s knife. He was asked about inconsistencies or apparent inconsistencies in aspects of his evidence. He agreed that he had earlier said that he hit the African with the club-lock in Racecourse Road. His evidence in court was that that happened at the eastern block of flats. He indicated that he saw no inconsistency as they were flats in Racecourse Road. He accepted that he had said at the committal hearing that he had spoken at the hospital to his friends about the club-lock. His evidence in court was that he could not recall discussing the club-lock at that time.
Umit Ertarla denied a number of matters put to him by Ms Randazzo in cross-examination. They included: * that at no stage had he seen the African holding a knife, * that he had joined with others in an attack on the African, * that he had taken up the club-lock with the intention of using it to assault the African, * that at no stage had he chased the African on foot, * that instead, he had driven his car into Racecourse Road, then jumped out with his club-lock and chased the African near the 7/11 store, * that he had caught and hit the African at that time, * that when the taxis had come, he had struck a taxi with the club-lock, * that he had threatened the men from the taxis

6 Mousab Wafai said he was a friend of Zakaria Hablas, and through him knew friends of the Hablas brothers. He knew who Hakan Ulu was, but had not personally met with him. On 5 January 2002, around midnight. Mousab Wafai and six others went from Block 59 to go to Safeway. When the brown and white cars left to travel south in Holland Court, he was in the white car, behind the brown car. He was in the back seat on the passenger side. He was not paying much attention to the road ahead. Towards the southern end of the court, he saw a car with two doors open parked on the eastern side of the road. He saw Hakan Ulu near the driver’s side door, facing north. He saw blood on Hakan Ulu’s shirt. He heard Hakan Ulu call out: “I’ve been stabbed.” Zakaria Hablas jumped out of the car he was in. Mousab Wafai saw an African man go past to the left.

Mousab Wafai said that he chased after the African and Zakaria and Mohamed. The African went inside block 120. No one followed him into the foyer. The African then came out. He waved a knife at Zakaria and Mohamed Hablas. After a short time, the African ran out towards Racecourse Road, followed by the others. Still with his knife in his hand, the African tried to stop traffic. A Holden Calais pulled over towards the northern kerb. The African man with the knife folded the knife as he got into the Calais. The Calais moved forwards a short distance. Zakaria kept yelling to the driver not to drive on. The Calais stopped. Both the African and the driver got out. The African then had the knife with its blade extended. Zakaria and Mohamed Hablas and Mousab Wafai were then around the African. The African was distressed and shaky. He pointed his knife and waved it. The African said words to the effect: “You are trying to kill me.” And “Let’s go to the police.” Mousab Wafai said that he said to the African to calm down, to put the knife down, and that the police were on the way.
At this time, two taxis pulled up. There was some shouting involving the men in the taxis and the men with Mousab Wafai. One of the men from the taxis showed a police badge. He told Zakaria off for being on the road. Zakaria tried to explain, but was not listened to. Threats were made as to what would happen if the men with Mousab Wafai did not disperse. The men from the taxis got back into the taxis and left. During this talk, the driver of the Calais left. Mousab Wafai said that he rang triple O. He hung up when he saw police cars coming to the scene. He said he could not recall showing to any police officer that night his crowd controller badge. He said that he only carried that badge when working. He went to the hospital. There he learned of the death of Hakan Ulu. He did not speak with the others about the events earlier in the night.
Mousab Wafai said in cross-examination that he could not recall seeing Erhan Ulu in Holland Court before he started to chase the African. He did not see any knife or stabbing there. He heard no sound of a car being revved there. At no time did he see a club-lock.
Mousab Wafai denied a number of matters put to him by Ms Randazzo in cross-examination. They included: * that he had seen the African being assaulted by his friends, * that had assisted his friends in that assault, * that in the assault a knife, torch and club-lock had been used as weapons, * that in the assault, the African had been pinned to the white car, * that the white car had been revved, * that one or more of the friends had called out : Run him over.”, * that at no stage had the African had a knife, * that he was lying when he said he had seen no club-lock.

7 Umit Mercimek said the he met with his friends at the Holland Court flats on 5 January 2002.

He believed that he was in the front passenger seat of the white car as they left to go to Safeway. He saw in the middle of the road ahead three men fighting. They were Hakan Ulu, Erhan Ulu and an African. He saw that the African had a knife and was swinging it in a stabbing motion. The other two were moving as if trying to block any blows with the knife. He did not see any penetrating stab, or any other injury inflicted. He heard Hakan Ulu scream out. He saw blood on Hakan Ulu. He saw that Hakan Ulu was holding his neck. Umit Mercimek said that he got out of the car. He went to Hakan Ulu and helped him to get into the passenger seat in the white car. Khadir Hablas drove off in the white car. Erhan Ulu got into his car and left. Umit Mercimek said that he and others unsuccessfully tried to block the African against a fence. He then got into the brown car with Umit Ertarla and Yucel Tellipinar. Umit Ertarla drove the car to a position under the railway bridge. There he was one of several men who surrounded the African. The African had a knife in his hand.
A blue car stopped. Two taxis stopped. Four or five men got out of each taxi. Umit Mercimek said that he saw one police badge shown. He did not speak to the man who showed the badge. There was a lot of screaming and yelling. He said that he had spoken aggressively towards the men from the taxis. He saw the African run towards the 7/11 store. At one stage, he saw a group of Somalians on the south side of Racecourse Road, close to Boundary Road. They did not join in. He had gone to the Royal Melbourne Hospital. Because of family concerns, he had not spoken with his friends about the earlier events.

Umit Mercimek said that he had seen and spoken with a Nigerian in the shop within the flats area before 5 January. He was not sure if it was that Nigerian who was the African that he saw on 5 January with the knife
In cross-examination, Umit Mercimek said that he could not describe the knife held by the African. He said that at no stage had he seen a club-lock. He had seen a torch at one stage.
At not time did he see any of his friends touch the African.
Umit Mercimek denied a number of matters put to him by Ms Randazzo in cross-examination. They included: * that he was lying when he said that the African had held a knife when in Holland Court, * that he had assaulted the African in Holland Court, * that he had seen the African being assaulted by his friends in Holland Court, * that the African had been pinned against the white car there, while one or more men called out to run him over, * that he was lying when he said that he had not seen a club-lock, * that he had acted violently towards the African and the driver of the blue car, * that he was lying when he said that the African had held a knife when in Racecourse Road

8 Senior Constable Rodney Hutchinson was the policeman who was in Brunswick shortly after midnight on 6 January 2002. He was on duty with Acting Sergeant Walsh. They took a call that brought them to the 7/11 store on the corner of Racecourse and Boundary Roads at 12.20 a.m. There, he saw a group of 12 to 15 dark skinned males. The accused came from in or through the group to the police car. Hutchinson spoke with the accused, whom Hutchinson treated initially as a victim. He saw blood on the accused’s T shirt, right hand, right arm, right face and right forehead. He saw that the accused wore black track suit pants and white runners, and carried a black jacket. The accused spoke quickly in an excited manner, but was responsive to questions and understandable. He did seem a little distressed and upset. The accused said that he had called the police, that he had been attacked by four guys who had kicked and punched him. He said that they had got into a car and had gone that way. As he said that, he pointed west. The accused said that he had been cut on his right hand. Hutchinson went with the accused to a better lit area and examined him for injuries. He located only minor swelling on the right hand. Hutchinson spoke with men in the group of 12 to 15. He satisfied himself that they could not assist, and allowed them to move on. More police arrived and Hutchinson received more information.

He went to the accused and said that he would need to get a statement from the accused. The accused said he would want to have a lawyer. Hutchinson told the accused that he was under arrest, and gave him the usual caution and explained his rights. The accused said again that he was the person attacked. He said that he wanted to be taken to hospital, that his hand hurt. The accused was then searched and found to have no weapons on him. He was then handcuffed, placed in the police van, and driven off. Hutchinson and Walsh and two police from Coburg then carried out a search for about 45 minutes. That search for items of interest was on both sides of Racecourse Road. The search included a large Dumpmaster. It also included going into the Moonee Ponds Creek and the banks and the reeds and long grass there.

9 Du Yongqi said he had been in the lounge of a flat in Block 12 on level 13 around midnight on 5 January 2002. The windows of the lounge overlooked Holland Court. He heard from down in Holland Court, very loud arguing and screaming. He could not make out what was said, but heard a few different voices. He looked down from the windows. He saw a red and a white car parked out from the kerb in front of block 12. After some further arguing, he saw a person get into the red car and drive off. Then a person got into the white car and drove off. He had not heard any revving of a car engine before he heard the screaming.

10 Edward Duncan was the first of the witnesses who had been at the bucks party celebrations that started around 3 p.m. on 5 January 2002 at his Flemington home. They continued at the Geebung Hotel from around 10p.m to just before midnight. Then, 9 men went in 2 taxis towards the city along Racecourse Road. Edward Duncan said that he was in the front middle seat in the second taxi. The taxis were approaching the overpass, when he saw the first taxi pull to the left lane and stop. He saw a group of young males near the taxi. He got the driver of his taxi to stop east of the first. He got out and ran west. There was a position of potential conflict between the two groups of men. Damien Grant was facing the apparent leader of the other group. There were raised voices and threats. Damien Grant said he was a policeman. The others sought assurance, which Damien Grant gave. The potential for conflict subsided. At no stage did he see any physical contact, or anyone with a knife, or any African man. The driver of the first taxi complained of damage to the back of the taxi. Edward Duncan looked, but could not see any damage. He and his group got back into the taxis and continued into the city.

11 Matthew Duncan said he was mildly drunk when he was being driven in the first taxi east along Racecourse Road. He saw 3 youths on the road. He saw that one of the youths had a club-lock in his hand. He heard a thump on the taxi, which then stopped. Damien Grant and he and the others got out. The youths were shouting at Damien Grant. Their attitude was aggressive and their voices were raised. Damien Grant spoke to them loudly but calmly. Mathew Duncan could not recall what was said. Except that one of the youths referred to a stabbing. There was no physical contact. His group got back into their taxis. When they were near the 7/11 store, a reference was made in the taxi to an African. He had not earlier seen an African.

12 Luke Russell said he was in the back seat of the first taxi. He said that he had been drinking, but knew what was going on around him. Approaching the overpass, he saw a couple of European men chasing an African man. He saw a man with a club-lock. The taxi stopped. That was under or close to the overpass. Damien Grant and the others got out. Damien Grant tried to settle everyone. The European men seemed angry. Luke Russell said that he could not recall what they said that their problem was. It seemed to him that a confrontation was looming. He focused on trying to keep Glen Withers out of the action. He saw the African move to the south side of the road. Damien Grant was able to settle the situation. There was nothing physical between the two groups. His group then got back into their taxis and left.

13 Bradley Walker said he was in the back seat of the second taxi. He said that he had not had much to drink. He saw the first taxi stop suddenly. He saw people on the road. The second taxi stopped behind the first. This was about below the overpass. He saw five youths on the road. One was holding a large metallic bar. That youth hit the first taxi with the bar, near the petrol cap. Damien Grant got out and the others followed. Damien Grant held up his police badge. Someone called out that his mate had been stabbed and that the guy who did it was getting away. Bradley Walker said that he had not seen any dark skinned man nearby. Damien Grant told the others to leave any action to the right authorities.

14 Garry Tocci said that he was in the first taxi. He said that he had been drinking moderately and was mildly affected. He saw a group of 4 or 5 guys running along the road. One had a club-lock in his hand. The taxi stopped near the overpass. He and the others in his group got out of the taxis. The guys who had been running were yelling and screaming. They appeared to be in a rush to get somewhere. They were speaking aggressively. Damien Grant was trying to calm them. He was asking why the taxi had been hit. He was also telling them not to do any more chasing. Garry Tocci said that he heard one of the group of guys say that a mate had been stabbed, and that they were chasing the guy who did it. His group got back into the taxis and drove on. From the taxi he saw an African guy at the 7/11 store. The African moved between the petrol bowser area and Racecourse Road. At the Racecourse Road end, the African looked west, then moved south towards the store.

15 Damien Grant was the 6 feet 6 inches tall former policeman who was also at the bucks party. He had been drinking on and off until close to midnight. He was in a group of 9 men who got into the two taxis. He believed he was in the rear seat in the second taxi. Coming up to the overpass in Racecourse road, he saw a sole dark skinned man being chased by about 8 males of Middle Eastern appearance. The taxi driver slowed and someone yelled out: “Get off the road.” Grant saw that one of the eight males was holding a steering lock. That male stood in front of the taxi. He struck the taxi forcefully in the front left headlight area. The taxi stopped. Grant got out. He went to the male, with the steering lock, who had the others of the 8 behind him. Grant had the others of his nine behind him. Grant acted to try to defuse the situation. He perceived as to the other eight males, elements of aggression. But there was also something about them that was placid and strangely quiet. He extended his hands in front of him, palms open, in a non-threatening way. The male with the steering lock was abusive to Grant. Grant told him that as he had struck the taxi, the police would be coming. One of the other group of eight called out loudly for Grant to be hit. The man with the steering lock raised it above his head. Grant then said he was a policeman and showed his police badge. Once he showed the police badge, the situation was brought under control. He told the males to leave, and they left. At no stage was he told what the problem was that had led to the eight males chasing the dark skinned male. He saw the dark skinned male in the distance, running towards the 7/11. Grant asked the taxi driver if he wanted anything done. The taxi driver gave the Ok to proceed, and they got back into the taxis and went into the city as planned. It was only the next morning that he learned that there had been a stabbing near where he had been involved.

16 Mohamed Saadedin was the driver of the blue Calais. He said that he was driving east in Racecourse Road. He saw the accused come onto the road in front of his car with his arms out wide. Behind the accused were three men. Saadedin stopped his car. The accused asked to be taken to a police station. He said: “These boys will kill me.” Saadedin said that he opened the drivers side door. With central locking, that meant that the passenger side door could be opened. The accused opened the door and got in. He asked to be taken to a police station. Saadedin saw that the accused had some blood on his left arm, face and forehead, and some swelling to his left wrist. The accused was wearing a black jacket. He looked scared and panicking. One of the three men said that the accused had a knife. The 3 men called to Saadedin that the accused had just stabbed one of their friends. Saadedin said that at no stage then or later did he see the accused with a knife. No knife was left in his car. When told of the claim of a stabbing, Saadedin pulled over to the side of the road. His car was then outside Block 120. Saadedin said to the accused that he could not take him to the police station. Saadedin got out of the car. By then, he saw that there were six men. In addition to the first three were another three. They had come by another car. Saadedin recognised members of the six as men he had seen and spoken to before. One of the further three men was carrying a steering lock. Saadedin spoke briefly in Arabic. The accused then got out of the car. Saadedin said that the accused then started to run across Racecourse Road. The man holding the steering lock went after the accused. That man hit the accused in the left wrist area. This was not far from the front of Saadedin’s car. A taxi came by and stopped. Only one man from the taxi got out. He showed his police badge, and called for a stop. Things broke up. Police cars came. Saadedin drove his car from the side of the road. He drove into the 7/11 and parked his car. He saw the accused using the telephone there. Saadedin was with other men at the 7/11. Those men had not been involved in the events outside the flats. The accused came up to him. The accused asked him why he had not helped him earlier. At this time, several police cars arrived, and the police made various enquiries.

17 Rehman Ajaz-ur was the 7/11 console operator on duty when the accused entered around midnight. He knew the accused as Charlie, a regular customer. The accused asked the witness to call the police. The witness was attending to a customer. He said to use the public phone. When the accused said he had no money, the witness said that a call to triple O was a free call. The accused made the call. The witness heard that call, as recorded and played in court, being made. He saw that the accused had blood on his face. He saw too what he described as a scar like a line, or a cut, a little bit broken. The accused looked upset and scared as he made the call. The accused wore dark pants and a light coloured T shirt. After making the call, the accused did not go further into the store. He went outside. The witness saw him there later, speaking with the police.

18 David Walsh was the sergeant of police in uniform who came to the 7/11 with Senior Constable Hutchinson. They had been working on an event in Brunswick. He had heard on D24 about events in Flemington, about a stabbing and about a victim going to hospital. They were heading back to Moonee Ponds when asked to go to Flemington Road. When they pulled into the 7/11 store, he saw 12 to 15 African looking men in the car park. He was in the marked police car when Hutchinson spoke to the accused. The accused said that he had phoned for the police, as he had been attacked. He said: My hand, my hand. Walsh got out of the police car. With Hutchinson, he looked at the hand of the accused. He did not thoroughly examine it. He saw blood on the hand. He saw no cuts or abrasions to account for the blood. The accused pulled up his T shirt. There was no apparent source of blood. The accused said that 4 guys had attacked him, kicking and punching him. He said that they had got into a car and went that way, as he pointed west. He said that they were in a red car, maybe not all that new. The accused seemed eager to speak, and spoke quickly. The accused again said that his hand hurt. Walsh looked again at it. He saw a small amount of swelling on the back of the hand. Walsh said that he then went to the 12 to 15 males of African appearance. He asked them if they knew the accused or about the assault and like questions. He satisfied himself that they were not able to assist.

Other police arrived and spoke with the accused obtaining his name and address. He later asked two policemen from Coburg to get details from the men, and to search around the 7/11 for anything that might be related to an assault. Some of the 12 or 15 males might have left before then. He spoke again with the accused, seeking more details about the assault of which the accused complained. The accused told him that at the time he was assaulted, he had been making a call using a phone card. He said he was using a public phone as his home phone could only be used for incoming calls. Walsh told the accused he would have to go to the police station. He asked the accused if he had any weapons on him. He explained his reasons, including a concern as to the accused’s welfare, for making that request. The accused said he had no weapons and that he would show Walsh that that was so. He turned out his pockets and the like to show that he had no weapons. Walsh then noted that there were no injuries apparent, and that the accused appeared to freely move his right arm. By then the accused had settled down. He appeared calm. He was co-operative with the police.
Hutchinson then came over. He told Walsh that he had directions to arrest the accused. Walsh until then had treated the accused as a victim. Walsh left the accused with Hutchinson. Walsh liaised with the Coburg police. He also spoke with the console operator. He searched without success within the 7/11 store for any knife or other item of possible interest to an assault or a stabbing. He asked the Coburg police to conduct a like search in the surrounds of the 7/11 store. He then took part in a search with Hutchinson on the North side of Racecourse Road. The two Coburg police were instructed to do a like search on the southern side. That search extended west down to Stubbs Street. It was a careful search that took about 45 minutes. Walsh and Hutchinson went down to the creek, that had water in it.

18 Sonia Sheikh. (Particularly as to the order of events, I accept that this particular summary is to be treated with caution.) On 5 January 2002, she was living in a unit in block 29, on the second level on the south east corner. The unit has three rooms with windows to the east. It is about opposite the driveway to the east of Holland Court and north of block 21. She was sitting at a computer in the room second from the south with a window to the east. While seated at the computer, she heard the sounds of cars travelling and of a car being revved very loudly. She heard people screaming and shouting. At two different stages, she heard someone call out: “Run him over. Run him over.” She also heard someone call out: “He’s got a knife.”

As to when she heard those calls, it seemed to me that to questions from Mr Gamble she said – it was when she was at the computer, and to questions from Ms Randazzo, it was when she was at the window.
She went from the computer to the window in the second room. From the window her view was partly obscured by the flyscreen on the window and by the trees in the street. She saw cars and people. She saw three cars parked not at the kerb but out, closer to the centre of the road. Two faced south, one faced north. Of the two cars facing south, one was white, the other red. She caught a glimpse of a dark skinned man being held by another man against the white car. That was on the driver’s side towards the front. There were 2 or 3 others nearby.
She went from the window in the second room into the third room and from there onto the balcony. Her view from there was partly obscured by the trees. By this time, the three cars had gone. She saw the back of a dark-skinned man running. She saw in the region of his arm, wrist or hand the flickering of a shiny object. She saw 3 or 4 white-skinned men running after the dark-skinned man. The dark man being chased was wearing black pants and white runners.
She spoke to a policeman shortly afterwards. She accepted that she had then said that the two cars she had seen were a white Ford and a red car with tinted windows. She later worked with the same policeman to prepare a written statement. At 2.15 a.m., she signed that statement. She accepted that the statement referred to her having seen the dark man with a knife in his right hand as he ran. She said that she had not seen that. She said that she could not recall saying to the policeman - either that she saw a knife – or that the man was holding the knife in his right hand.

19 Jessica May was the constable from Avondale Heights who went to the 7/11 at 12.45 a.m. She saw police talking to the accused. The accused wore a black singlet. A dark jacket and T shirt were on the ground. They were blood-stained. She saw blood on the accused’s face and right hand. She saw no injuries. In her presence Hutchinson arrested the accused. The accused said: What. You arrest me? I am attacked. The accused was agitated, and spoke quickly and indignantly. Hutchinson cautioned the accused and told him his rights. The accused indicated that he understood his rights and said that he wanted to go to hospital. He indicated that his hand hurt. The accused was handcuffed and placed in the police van.

Q Apart from saying those things did he physically do anything else to try and calm the man down?

A No, he hadn't.

Q What level of voice did your brother use when he was speaking to this man?

A In a much mannered voice and much lower voice then he was screaming at us.

Q The voice you have just used, how did it compare to the volume of your voice, for example?

A Well, maybe it's a bit higher than mine right now, "Just take it easy, relax", that was it.

Q After your brother said that to this man, what happened then?

A He pushed my brother, totally ignored him, he totally ignored my brother and pushed him.

Q He ignored your brother and he pushed him?

A That's correct.

Q So I take it he didn't say anything in response to what your brother said?

A No. Q Just describe, if you can, how he pushed your brother? Probably towards the chest.

Q Just describe physically, if you can, what the man did to your brother at that early stage?

A He pushed my brother.

Q Can you just use your own - - - ?

A Both hands towards the chest.

Q You are just indicating in the witness box there, with the palms away from your body and at about chest height, thereabouts?

A Chest height, yes.

Q And he pushed away from his own body into the body of your brother, is that right?

A That's correct.

Q Did he make contact with your brother?

A Well, he got his chest by pushing him.

Q Okay, so he pushed your brother in the chest. Just describe what happens then?

A And then my brother pushed him back and that's when he took his knife out, which I found surprisingly was ready.

Q Who took a knife out?

A The guy that did - down here.

Q The other guy?

A The other guy, yes.

Q Where did he take the knife out from?

A His right pocket.

Q And at the time he took the knife out what could you see of the knife?

A As I can remember, it was about 12 centimetre blade.

Q So you see the blade?

A That's correct.

Q The blade was already visible?

A It was already open.

B.5 DU YONGQI – extract

Q Did something occur that caught your attention while you were watching - was it television or the DVD?

A DVD.

Q And you were watching that in the loungeroom, were you?

A Yes.

Q Did something get your attention at that time?

A I heard a noise very loud from the downstairs.

Q All right. What sort of a noise was it that you heard, are you able to say or not?

A Like people arguing downstairs, then I heard the screaming.

Q Yes?

A Yeah.

Q Could you make out any words that were being said or could you just hear generally noises and yelling and screaming?

A It's like argue very loud and people argue downstairs.

Q Could you make out or do you remember any actual words that were used during that argument from downstairs?

A No, I can't hear clearly what they argue about.

Q All right. When you say you could hear that coming from downstairs, what do you mean by downstairs? Whereabouts did the noise appear to be coming from?

A From the road, the side of the road in the street.

Q When you say that someone - or people are arguing, what do you mean by that, what is your definition of argument or arguing?

A Sounds very loud, two people, they talking, you know.

Q They are not having a pleasant chitchat or talking like we are talking now, do you agree?

A No.

Q The level of - the volume is much more raised, you agree with that?

A Yes.

Q And there is also aggression or a level of aggression and anger in the voice?

A Yes.

Q Do you agree with that?

A Yes.

Q And you heard more than one voice, you heard a few voices; now, again you didn't hear the words but you did hear that there were a few different voices; do you agree with that?

A Yes.

…

Q How long after you begin to hear these voices and this arguing do you say that you go and look out the window?

A About a couple of minutes.

Q A couple of minutes?

A Yeah.

B.6 SHEIKH – extract

Q Can I ask you what you remember about an incident that night, that is Saturday night going into Sunday morning on the dates I have mentioned, was there an incident that happened that you remember?

A Well, yes, I was sitting on the Internet, on the computer, and I just heard some cars revving, people screaming and shouting and people just yelling out, "He's got a knife, he's got a knife" and then just hearing, like, people just screaming and yelling and by that time I'd actually tried to have a look and it was, yeah, I am behind the tree so it was very hard to see anything, but by that time I had actually gone to the balcony and just seen people running, so the backs of gentlemen running down the - like, sort of down that way so, if anything, I wasn't that close, but I could hear, I could hear, so that was basically what I, yeah, heard and seen.

left and the right side, and they ran to where the cars actually drive in to park, down that way, facing

<CROSS-EXAMINED BY MS RANDAZZO:

…(after the witness spoke of speaking with a policeman)

Q I suggest to you that you told him there down in the street that you had seen a white Ford Falcon sedan and a red VN tinted window sedan?

A Yeah.

Q Do you recall telling him that?

A Dark - yeah, that's right.

Q Dark car?

A Yeah, it was a dark coloured car with dark windows that I could see from the back.

Q You were able to tell him you had seen that, you had seen those two cars?

A Yeah, a white and red.

Q I am going to suggest to you you also said to him the white Ford Falcon was in front and the red one was behind, do you remember saying that to him?

A Yes, that's right, yes.

Q Then I am going to suggest also to you that you said to him down in street that next to the white car there was a man standing in front of the white car, being held in front of the car?

A Yes, like just people standing, like, there was even people around those people, so there was just people.

Q So what you are saying, first of all, I will ask you this, did you say that to the police officer down in the street?

A Yes, I did, yes, that there was a group of people.

Q That you saw next to the white car?

A Yeah.

Q Someone standing in front of the white car, being held in the front of the car?

A It looked like someone was being held because of the way they were talking and screaming and - - -

Q You also said to the police officer down in the street, I am going to suggest, that someone was saying, that you heard someone saying, "Run him over, run him over"?

A Yes, that's correct. That's what sort of got me, well, the revving got me to go to the window and I was looking out the window that's when I could see through the trees, the lights and all that, people standing in, yeah - - -

Q Okay, Mrs Sheikh, I will bring you to that in a moment. I am just asking you at the moment whether you can just concentrate on the conversation that you had and the things that you said to the police officer down in the street?

A Yeah.

Q All I am doing is putting to you that you said certain things to that police officer and you can tell me whether you agree you did or didn't, right?

A Yes, no problem.

Q You told the police officer down in the street that you saw someone in front of the white car being held in front of the car and you heard someone saying, "Run him over, run him over"?

A Yes, that's correct.

Q I am going to also suggest to you that you told the police officer down in the street that the white car was being revved, at the time you heard, "Run him over, run him over", you were saying the white car - - -?

A Yes, there was revving.

Q - - - was being revved?

A Yeah.

Q I take it what you mean by revving is that the car is stationary, it's not moving?

A Yes, it's not moving.

Q It's in natural or park or like that and you can hear the revving of the motor, someone's putting their foot down on the accelerator and you hear the revving of the motor?

A That's correct.

Q You distinctly remembered seeing that on the night when you were speaking to this police officer down in the street?

A Yeah.

Q And, in fact, you also told this police officer down in the street that the fellow, meaning the fellow who was the dark African - - - ?

A I just said "dark gentleman", I didn't - yeah.

Q Was being chased?

A Yes.

Q Wearing black pants and white runners - - -?

A That's what - - -

Q - - - do you remember saying that is what you could remember?

A Yeah, I could see from the back.

…

Q When you saw those two cars stopped, when you looked out your window and saw the two cars stopped, they weren't parked like those cars are parked, were they?

A No, they were double parked.

Q They were double parked?

A They were double parked.

Q Thank you. Whilst you were still at the window and before you go to the balcony can I ask you first of all maybe this question where's the balcony in relation to the window that you say you are looking out of?

A Okay, it's a three bed, so there's the bedroom, with a couple of windows, I wasn't there, I was in the actual second room where the window was, then there's actual loungeroom and through the loungeroom there's the door that goes out to balcony so it's a matter of maybe three metres from the balcony door to the - four metres to the window - - -

Q To the window?

A - - -where I actually initially looked out.

Q Am I correct in saying do you need to actually come out of the room where the windows are from the room you were in, do you have to come out?

A Yes, you have to come out. You see the third block of flats there, there is the first room, a second room. Now the second room, that's the actual second room, the bedroom is the first and then the second room is where I was sitting.

Q Are you looking at photograph 6?

A Yes.

Q Go to the very top floor, does that give us an idea?

A Yeah, that's it. The first one, the first box, that is the first room. The second box is the second room. You have to go out of the second room, walk into the actual loungeroom, come out where that little area is which is the balcony, it's a matter of through the wall all the way down to the actual door which is on the far, far side of the balcony, on the far left.

Q Yes?

A That's where the balcony door is to go out.

Q You say that is a distance, you have to travel a distance of about three metres or so from - - -?

A To get out of the door and then outside into the loungeroom.

Q Into the loungeroom?

A And outside on to the balcony.

Q It's not a long distance, you do that in a matter or seconds, is that right?

A Seconds, yes. It's a matter of opening the door, running like a metre hallway into the loungeroom, it's probably a three metre dash across to the door -

Q The door - - -?

A To go out on to the balcony.

Q To go out on to the balcony?

A And there's a security door too, so there's actually two doors.

Q I just want to make sure we have this sequence clear. What prompted you to get up and look out of the window, first of all?

A Yeah.

Q Was the sound of the cars that were loud - - -?

A That were revving and then loud speaking and shouting and so

Q Whilst you were still in the office area, I will call it, where the computer is?

A Yeah.

Q Whilst you were still there and looking out the window, could you hear the screaming and shouting that you described earlier?

A Yeah, I could hear yelling and trying to figure out what was - - -

Q I know you say you were looking through a fly screen but was the window itself open?

A Yes, I opened the window.

Q You'd opened the windows so the windows were opened?

A Yes.

Q And you could clearly hear the screaming and the shouting?

A Yeah, that's right. At first - - -

Q But you couldn't make out what the words were at that time that point?

A And then the louder words came up, obviously louder that I could hear, obviously it was mumble and people arguing and so on so.

Q What you said to Senior Constable Forbes when you made your statement on that night was the next think you hear after looking out and seeing the cars on the road, the next thing that you hear was "run him over, run him over"?

A Yes, very loudly, yes.

Q That was distinctive?

A Yes.

Q Over and above the shouting - - -?

A Yes.

Q - - -that you could hear?

A That's right.

Q And it's that that caused you to leave the window area because by that stage I suggest you were concerned?

A Yeah.

Q As to what was happening?

A What was happening, that's right.

Q That what causes you to leave the window area and go to the balcony, do you agree?

A That's right, yes, that's correct.

Q In fact, you said to Senior Constable Forbes that night that you then went to the balcony and then went outside after hearing the words "run him over run him over", you then went to the balcony and went outside on to the balcony?

A That's right.

Q And is that the truth?

A Yes.

Q What you said to Senior Constable Forbes was that you saw a glimpse of an arm holding the African fellow, the black dark skinned male in front of the white Ford?

A Yeah, that's while they were standing in the actual street, not when I was on the actual balcony, this is while I was watching through the window. The balcony I had seen them running.

Q Let's get that clear. So what you are saying is that from the window - - -?

A Yes.

Q Is where you make the observations that the man - - -?

A They were trying to, yeah.

Q Black African fellow was being held in front of the white Ford?

A That's what - I was trying - it was a matter of, what, 10 seconds trying to figure out what was - I could see, because I am through the tree and the lights shining down and I am seeing glimpses so if anything it was a matter of two seconds trying to figure out what was going on, that's when I thought I better go out - - -

Q Better go out to the balcony?

A Out to the balcony and have a better look.

Q Let's get this sequence right. At the window you hear screaming, shouting, you look, you hear, "Run him over, run him over"?

A Yeah.

Q At the same time I suggest that you hear that or around about the same time is when you catch this glimpse of an arm holding the black African man against the front of the white Ford, do you agree?

A Yes, I told him that's - I could just see people and arms holding, and that's, I just assumed that's what was happening because I could see it through the trees, the light shining down so I see arms, people standing around those people. I mean, I couldn't see faces or anything, and I mean the light, I could barely, yeah, see, I mean anything, it was a matter of five seconds so - - -

Q It was a very quick - - -?

A Yeah, it was a matter of look and that's it.

Q And leave and go to the balcony?

A And then leave and go to the balcony, so it was a matter of five seconds.

Q Whilst you couldn't see any faces, you could tell there was a black African man?

A Yeah, I could see, yeah, because he was wearing - - -

Q You could see that - - -?

A - - - or something, yeah.

Q I was just asking you or putting to you that you could tell that one of these males was in fact a dark African male?

A Yes.

Q This is when you look out the window, agree?

A Correct.

Q And when you hear the words "run him over run him over", this is whilst you are still at the window. Do you say that you heard those words being said once, more than once, can you recall?

A Maybe twice.

Q Maybe twice?

A Maybe twice.

Q Now, when you say twice, do you know, "Run him over, run him over" and then, "Run him over run him over" again?

A "Run him over, run him over" that's twice

Q That's once or is that twice?

A No, I'm very sure it was twice,. "Run him over, run him over", very sure it was twice, could have been - - -

Q That's okay?

A Otherwise I'm very sure it was twice.

Q Is that what you say causes you then to leave the window and go the balcony?

A I heard "he's got a knife" or something "he's got a knife", um - - -

Q Can I ask you about the white car itself when you were at the window, okay? When you were at the window and you hear, "Run him over, run him over" and catch this glimpse or see a glimpse of an arm holding the dark African male in front of the white Ford, you told Senior Constable Forbes that you again heard someone say, "Run him over, run him over"?

A Yeah I think that might - - -

Q Do you agree?

A Yeah, another person though, not the same.

Q It was a different sounding voice?

A I think it was a different voice, it wasn't the same voice.

Q But you did hear - - -?

A Yeah, after that initial, yeah, "Run him over, run him over" and then it might be, yeah, it might have been, it was a different voice, it wasn't - - -

Q All right?

A - - - the same voice.

Q Can I just ask you this. The driver of the Ford, okay, at that point when you see this glimpse, when you see this arm holding the African man against the white Ford and hear those words, "Run him over, run him over" could you see the driver of the white Ford?

A No, not at all, not at all, I couldn't see.

Q But you could hear the revving of his car?

A Yeah, I could hear the revving.

Q Of the car, I should say?

A Yeah, of the actual car because it was on.

Q And I suggest to you that was at the same time as you could see the black African man held against the front of it and you could also hear them, a couple of people, screaming out, "Run him over, run him over", do you agree?

A Yes, that's correct.

Q That caused you some concern, didn't it?

A Yes, it did.

…

Q The sequence of events or the sequence of things you hear I am going to put to you and you tell me if you agree with this right?

A Yes.

Q You hear screaming and shouting, you go to the window, the window's open?

A Yes.

Q You are looking through a fly wire screen but you can see down on to the street?

A That's right.

Q You see the two cars, the white Ford and the red Holden Commodore sedan, parked, double parked in the street in the vicinity that you have already shown the jury in the photographs?

A Yes.

Q And you hear, first of all, "Run him over, run him over"?

A Yes.

Q Agree with me so far?

A Yes, correct.

Q You then see the African or a glimpse of an arm holding the African fellow against the front of the white Ford?

A Yes.

Q And then you hear another voice say, "Run him over, run him over"?

A Yes.

Q And then it's after that that you hear the words, "He's got a knife"?

A - - - "got a knife", yes.

Q You then at that point leave the window and go to the balcony agree?

A Yes, that's correct.

Q And it's when you get to the balcony that you see this black African male that you had just seen at the window running in the direction of the entrance to that carpark next to Block 12?

A Yes.

Q Almost directly opposite you, you agree?

A Yes, that's right.

Q And he's running down, you say, running down there, what, have you seen him actually turn - - -?

A No.

Q Into that?

A No, no I'd seen the backs.

…

<RE-EXAMINED BY MR GAMBLE:

Q Do you remember at what stage of what you saw and heard that night that that happened?

A Look, as I said, in the street there's always loud vehicles going up and down so just before I'd actually looked out because there was low revs, high revs, I mean people driving past, so, so that's what made me look out the actual window that actual vroo, vroo.

Q That sound?

A Yeah, the idling, the car just trying - - -

Q That sound made you look out the window?

A Yes with the sound of everything else, like, with the talking and the screaming and the yelling and, "Run him over and run him over" and that sort of - by that time I am trying to still look out trying to make my way to see something but otherwise I couldn't see anything, that's when I thought, after the fact of your know, "he's got a knife" that's when I ran to the balcony and had a look and everything was over, there was no-one in the street, everyone had taken off, people had just - yeah, it was just "skoo", yeah, I heard the cars taking off, so by the time I got to the balcony there was no-one in the actual street just the gentlemen running.

Q So is what you say this that prior to going to your window to look out the window, you hear what you believe is the red car revving in the way you have described?

A Yes.

Q And you - - -?

A Just driving past and vroo, just starting to rev and rev, they usually do that, that's the normal.

Q Did you hear some yelling and shouting?

A Yes.

Q Are you able to say how many voices - - -?

A No, not at all, not at all.

Q Or what they were saying?

A No, only what I just heard, "run him over", that was the loud distinct words that I can hear otherwise it was all just people arguing and screaming at each other and I mean I couldn't tell you how many there were there

…

Q Are you able to say whether the man that you believe was being held in front of the car was the same man that you saw being chased closer to unit later?

A I couldn't.

Q Are you able to say that is the same man?

A I couldn't say that no. I could just see the dark skin and, as I said, it was a matter of seconds, it was a quick look, I'd seen that, ran to the balcony and then the backs of jackets as they were running, so I didn't see faces or I didn't actually, I couldn't, I mean it was metres away, I just could just skin, if that.

Q Mrs Sheikh, correct me if I am wrong, but you have said in cross-examination that at the front of the car you couldn't see people's faces?

A Yes, in the actual vehicle I couldn't see who was in the car or - - -

Q No but - - -?

A Or people actually that were standing there I couldn't - - -

Q Did you say in cross-examination that in relation the people at the front of the car you couldn't see their faces?

A Yeah, I couldn't recognise anybody's face.

Q Could you see their faces?

A No, I couldn't see - well, a glimpse, like, if anything, colour of skin but that's - - -

Q You say "if anything" what do you mean by "if anything"?

A I couldn't see distinct facial features or actual - could not recognise anybody. Like, I didn't see the full faces, Q I could just see the tone, I could probably make the colour of the skin, that's - through the light trying to look that's what I could - - -

Q What did you notice- - -?

A See.

Q - - -about any faces if you noticed anything at that time?

A Just the colour of the gentleman, I was just looking, yeah, and just, that's the only thing I could yeah, trying, through the light, I wasn't, I couldn't see faces or distinct eyes or nose or anything, I could just see skin so it was a matter of three seconds that I could see, like, I looked and it was a quick look.

Q What are the other people?

A Yeah, I could just see that, yeah, there was white and black, that's all I could see, there was white gentleman and a black gentleman, so a dark gentleman, but I couldn't recognise.

Q Which way were those people facing, do you say?

A Towards Racecourse Road. I'm very sure they were facing, like, through the tree, I mean I could see - see them through the, through the window.

Q But which way are those people at the front of the car facing themselves?

Q When the people were at the front of the car which way do you say they themselves were facing?

A Towards me - - -

Q Towards me?

A I could actually see. Yes.

Q How many of them were there?

A I'm very sure there was probably one, one guy being held and probably around two or three other standing - then there was another group of, yeah, so there was people around otherwise it was one gentleman and maybe two or three next to him.

Q Are you able to say whether anyone of them was taller than the others?

A I would probably say the dark fellow was taller.

…

Q There's a number of people in front of the white car, is that what you say?

A Yes.

Q And what exactly was happening between those people that you saw in front of the white car?

A Um, they were standing alongside each other. Um - - -

Q Can I just stop you there for a moment. Who of them was in front of the white car?

A Not in actual in front, on the side, on the side before, like, in front of the car, so like, on the side of - - -

Driver's side or the other side?

A The driver's side and not directly in front, they were on, in where the front of the car was but on the side.

Q So you are saying that they are at the side of the car?

A Yes, the side.

Q And near to the front?

A Yes.

Q But not actually in front?

A Yes, correct.

Q What do you say is happening between them that can you see?

A All I can see is arms, like, one pair of arms holding the gentleman and another, I think two gentlemen standing near, near the actual guy holding. I mean, there could be another gentleman on the other side but I couldn't see that, all I could see is the arms.

Q So, what, one person using both hands to hold another person?

A Yes, correct.

Q Whereabouts were they holding the other person, on what part of their body?

A I am very sure it was the upper part.

Q Just point on your - - -?

A Say, the upper maybe the arms, they were holding the arms, or, like, forcefully holding the other person.

Q Their arms, is that - - -?

A Could be their arms, could be their upper body.

Q Do you know?

A No, no, I don't know. I could just see arms holding another person.

Q How long do you say that goes on for?

A Seconds.

Q Does - - -?

A Seconds.

Q Anything else happen apart that person holding the other person in the presence of other people?

A No, I didn't see anything else happen, I could just hear arguing and noises.

Q And what next happens that you see?

A Them running, so, by that time that's when all the loud arguing started and that's when I heard "run him over, run him over". "He's got a knife" by that time, I mean, I couldn't see, it was a matter of seconds so by that time I'd ran but I hadn't seen anything actually happen - - -

Q Did you see - - -?

A There.

Q - - -how the person came to be no longer being held?

A No, no, I did not.

Q What amount of time is there between your last seeing this person being held to you then seeing a person running down Holland Court?

A It was 15 seconds, 20 seconds, like through running out from the second room on to the actual balcony.

B.7 LYNCH - extract

Q Now, overall, doctor, you couldn't exclude the possibility that each of these injuries were sustained during the course of a struggle between the assailant and the victim, could you?

A No.

[2004] VSC 361

19 October 2004